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+The Project Gutenberg eBook, An Essay on Professional Ethics, by George
+Sharswood
+
+
+This eBook is for the use of anyone anywhere at no cost and with
+almost no restrictions whatsoever.  You may copy it, give it away or
+re-use it under the terms of the Project Gutenberg License included
+with this eBook or online at www.gutenberg.org
+
+
+
+
+
+Title: An Essay on Professional Ethics
+       Second Edition
+
+
+Author: George Sharswood
+
+
+
+Release Date: August 20, 2007  [eBook #22359]
+
+Language: English
+
+Character set encoding: ISO-8859-1
+
+
+***START OF THE PROJECT GUTENBERG EBOOK AN ESSAY ON PROFESSIONAL ETHICS***
+
+
+E-text prepared by Marilynda Fraser-Cunliffe, Stephen Blundell, and the
+Project Gutenberg Online Distributed Proofreading Team
+(http://www.pgdp.net) from page images generously made available by the
+Making of America Books Collection of the University of Michigan's Digital
+Library Production Service (http://www.umdl.umich.edu/)
+
+
+
+Note: Images of the original pages are available through
+      the Making of America Books Collection of the
+      University of Michigan's Digital Library Production
+      Service. See
+      http://www.hti.umich.edu/cgi/t/text/text-idx?c=moa;idno=AJF2351.0001.001
+
+
+Transcriber's note:
+
+      Minor typographical errors have been corrected without note.
+
+      The oe ligature has been transcribed as [oe].
+
+      A table of contents, though not present in the original, has been
+      provided below:
+
+         PREFACE.
+         INTRODUCTION.
+         PROFESSIONAL ETHICS.
+         APPENDIX.
+           No. I.
+           No. II.
+           No. III.
+
+
+
+
+
+PROFESSIONAL ETHICS.
+
+AN ESSAY ON PROFESSIONAL ETHICS.
+
+by
+
+GEORGE SHARSWOOD.
+
+
+ Id non eo tantum, quod si vis illa dicendi malitiam instruxerit, nihil
+ sit publicis privatisque rebus perniciosius eloquentia: sed nos quoque
+ ipsi, qui pro virile parte conferre aliquid ad facultatem dicendi
+ conati sumus, pessime mereamur de rebus humanis, SI LATRONI COMPAREMUS
+ HÆC ARMA, NON MILITI.
+                                                    QUINCT. DE INST. OR.
+
+
+
+
+
+
+Second Edition.
+
+Philadelphia:
+T. & J. W. Johnson & Co.,
+Law Booksellers and Publishers,
+No. 535 Chestnut Street.
+1860.
+
+Entered, according to Act of Congress, in the year 1860,
+by T. & J. W. Johnson & Co.,
+in the Clerk's Office of the District Court for the Eastern District
+of Penn'a.
+
+C. Sherman & Son, Printers,
+S. W. Cor. Seventh and Cherry Streets, Philadelphia.
+
+
+
+
+                                   TO
+
+                           MY HONORED MASTER,
+
+                      JOSEPH R. INGERSOLL, LL.D.,
+
+                                INSCRIBED
+
+                                  AS A
+
+                              TESTIMONY OF
+
+                         RESPECT AND GRATITUDE.
+
+
+
+
+PREFACE.
+
+
+The following Essay was originally published under the title of "A
+Compend of Lectures on the Aims and Duties of the Profession of the Law,
+delivered before the Law Class of the University of Pennsylvania." A
+portion of it had been read by the author as an Introductory Lecture at
+the opening of the Fifth Session of the Law Department of that
+Institution, October 2d, 1854. The young gentlemen, alumni, and students
+of the school, who were present on that occasion, requested a copy for
+publication, in order that each of them might possess a memento of their
+connection with the Institution. The author preferred to publish the
+entire Compend than merely a part of it. He hesitated much in doing so,
+because the questions discussed are difficult, and opinions upon them
+variant, and he could scarcely hope that he had in every case succeeded
+in just discrimination. A review of the matter now, when a second
+edition has been called for, has suggested, however, no important change
+in the principles advanced, though a few additions have been made, some
+inaccuracies corrected, and an introduction upon the importance of the
+profession, in a public point of view, prefixed.
+
+                                                             G. S.
+
+
+
+
+INTRODUCTION.
+
+
+The dignity and importance of the Profession of the Law, in a public
+point of view, can hardly be over-estimated. It is in its relation to
+society at large that it is proposed to consider it. This may be done by
+showing its influence upon legislation and jurisprudence. These are the
+right and left hands of government in carrying out the great purposes of
+society. By legislation is meant the making of law--its primary
+enactment or subsequent alteration. Jurisprudence is the science of what
+the law is or means, and its practical application to cases as they
+arise. The province of legislation is _jus dare_--of jurisprudence,
+_jus dicere_. The latter is entirely in the hands of lawyers as a
+body--the former almost entirely.
+
+Legislation is indeed a nobler work than even jurisprudence. It is the
+noblest work in which the intellectual powers of man can be engaged, as
+it resembles most nearly the work of the Deity. It is employed as well
+in determining what is right or wrong in itself--the due proportion of
+injuries and their remedies or punishments--as in enforcing what is
+useful and expedient. How wide the scope of such a work! The power of
+society over its individual members, or, in other words, sovereignty,
+which is practically vested in the legislature, is a type of the Divine
+power which rules the physical and moral universe. "There is one
+Lawgiver," says the Apostle James. Not that the Supreme Being is the
+sole universal lawgiver in the sense of a creator of law, whose will
+alone determines the boundaries of right and wrong. God is the creator
+of the beings who are the subjects of law. He is the author of law--the
+one lawgiver--in the same sense that he, who first discovered a plain
+figure, may be said to be the author of all theorems, which may be
+predicated of it. He who first called attention to the curious curve,
+made by a point in the periphery of a wheel as it turns on the ground,
+is in a certain sense the discoverer of all the truths, which may be
+mathematically demonstrated in respect to it.
+
+Law in its true sense is not the work of mere will--not an act of
+intellectual caprice. It is a severe and necessary deduction from the
+relations of things. The Divine legislator sees and knows these
+relations perfectly. He can draw no wrong deduction from them. He can
+make no mistake. Whatever laws have certainly emanated from Him are
+certainly right. This is the sense in which it is true that "there is
+one Lawgiver:" all others but attempt the work; He alone is competent to
+perform it. There is no mathematical certainty in our reasoning on moral
+as there is on physical relations. We know that the three angles of a
+triangle are equal to two right angles with an assurance we can never
+have in regard to any moral truth whatever. The Divine law is a
+deduction necessarily and mathematically certain as much so as any truth
+in geometry. Human law can aim only at such a probable deduction as
+results from a finite and imperfect knowledge.
+
+The system of law delivered by Moses to the Jews deserves, therefore,
+the most careful study at the hands of all who believe him to have been
+a divinely commissioned lawgiver. These laws were not intended for any
+other people than the Israelites; they were adapted to their
+circumstances, climate, country, neighbors, to the period of the world
+when they were promulgated, and during which they were to prevail. They
+were certainly not meant as a model for any other form of government,
+for any other people, or for any other time. Many laws are to be found
+there which are unnecessary and superfluous if applied elsewhere. Many
+actions, innocent in themselves, are prohibited. All the _mala
+prohibita_ are not _mala in se_. But one thing is as clear as a sunbeam,
+and that is a very important light to the student of Ethics; if God was
+the author of these laws, nothing morally wrong was commanded or
+allowed by them. When it was said of the Jews through the prophet, "I
+gave them statutes which were not good," it cannot mean not morally
+good; laws which it would be sinful in them to obey. The word in the
+original is not the word appropriated in that language to right,
+conformity to rule, but to goodness in its most general sense. Good
+statutes mean wise and expedient statutes. By no process can the logical
+mind be brought to the conclusion that the perfectly wise and good
+lawgiver, in framing a code of laws for any people, would impose as a
+punishment "for the hardness of their hearts," a penalty, submission to
+which would itself be punishable as a sin against the law of nature. He
+might command or allow as such punishment what in itself was inexpedient
+and injurious to them, and which upon the promulgation of a new law
+repealing the old and prohibiting what it allowed, would become by the
+sanction of the same lawgiver thenceforth universally _malum
+prohibitum_. The authority of God as a lawgiver is certainly not
+confined to a mere declaration of what is right or wrong by the law of
+Nature.
+
+There can be no merely arbitrary laws. It is necessary to bear in mind
+that we are now considering the province of the legislator, who ought to
+enact no law without an end. "Civil legislative power," says Rutherforth
+(B. II, c. vi, s. 10), "is not in the strict sense of the word an
+absolute power of restraining or altering the rights of the subjects: it
+is limited in its own nature to its proper objects, to those rights only
+in which the common good of the society or of its several parts requires
+some restraint or alteration. So that whenever we call the civil
+legislative power, either of society in general or of a particular
+legislative body within any society, an absolute legislative power, we
+can only mean that it has no external check upon it in fact; for all
+civil legislative power is in its own nature under an internal check of
+right: it is a power of restraining or altering the rights of the
+subjects for the purpose of advancing or securing the general good, and
+not of restraining or altering them for any purpose whatever, and much
+less for no purpose at all." There are, therefore, no arbitrary laws
+which fulfil the end of law. Doubtless the true objects of society and
+government may be mistaken by him who sets up to be law-maker, or if
+those objects are properly appreciated, the means for advancing them may
+be mistaken. It is not wonderful that in a matter which demands the
+highest wisdom, many should try and fail.
+
+It becomes important to inquire what are the true ends of society and
+government? Man is a gregarious animal--a social being. He may exist in
+solitude, but he cannot enjoy life: he cannot perfect his nature. Those
+who have watched and studied closely the habits of those irrational
+animals, who live in communities, as the ant, the bee, and the beaver,
+have observed not only a settled system and subordination, but the
+existence of some wonderful faculty, like articulate speech, by which
+communication takes place from one to another; a power essential to
+order. Man, the highest social animal in the scale of earthly being,
+has also the noblest faculty of communication.
+
+The final cause--the reason why man was made a social being--is that
+society was necessary to the perfection of his physical, intellectual,
+and moral powers, in order to give the fullest return to the labor of
+his hands and to secure the greatest advances in knowledge and wisdom.
+It is for no vain national power or glory, for no experimental
+abstraction, that governments are instituted among men. It is for man as
+an individual. It is to promote his development; and in that consists
+his true happiness. The proposition would be still more accurate were it
+said, society is constituted that men may be free--free to develop
+themselves--free to seek their own happiness, following their own
+instincts or conclusions. Without society--and government, which of
+course results from it--men would not be free. An individual in a state
+of isolation might defend himself from savage beasts, and more savage
+men, as long as his strength lasted, but when sickness or age came on,
+the product of the labor of his hands, accumulated by a wise foresight
+to meet such a contingency, would become the prey of the stronger. The
+comparatively weak-minded and ignorant would be constantly subject to
+the frauds of the more cunning.
+
+It is enough to look at the effects of the division of employments and
+the invention of labor-saving machinery, to recognize the invaluable
+results of society in the development of wealth and power. In a state of
+isolation a man's entire time and strength would be needed for the
+supply of his physical wants. As men advance in knowledge and wisdom the
+standard of their mere physical wants is elevated. They demand more
+spacious and comfortable dwellings, more delicate viands and finer
+clothing.
+
+   "Allow not nature more than nature needs,
+    Man's life is cheap as beasts'."
+
+It is not true that men would be morally better or happier, if their
+style of living were reduced to the greatest plainness consistent with
+bare comfort. Our taste in this respect, as for the fine arts, as it
+becomes more refined, becomes more susceptible of high enjoyment. When
+large fortunes are suddenly made by gambling, or what is equivalent
+thereto, then it is that baleful luxury is introduced--a style of living
+beyond the means of those who adopt it, and spreading through all
+classes. Taste, cultivated and enjoyed at the expense of morals,
+degrades and debases instead of purifying and elevating character. Men,
+who have accumulated wealth slowly by labor of mind or body, do not
+spend it extravagantly. If they use it liberally, that creates no envy
+in their poorer neighbor, no ruinous effort to equal what is recognized
+to be the due reward of industry and economy. The luxury, which
+corrupted and destroyed the republic of Rome, was the result of large
+fortunes suddenly acquired by the plunder of provinces, the conquests of
+unjust wars. The most fruitful source of it, in our own day, is what has
+been well termed _class legislation_--laws which either directly or
+indirectly are meant to favor particular classes of the community. They
+are supported by popular reasons and specious arguments, yet there is
+one test of the true character of such laws, an _experimentum crucis_,
+of which, in general, they cannot bear the application. Legislation,
+which requires or which will pay to be bored or bought, is unequal
+legislation; and therefore unwise and unjust. Bentham's rule, though
+false as the standard of right and wrong, is in general the true rule of
+practical legislation, the greatest good of the greatest number. It is
+expressed with the most force and accuracy by that master of the
+science, Bynkershoek; _Utilitas, utilitas, justi PROPE mater et æqui_:
+in which observe that the word _prope_ is emphatic. Legislation for
+classes violates this plain rule of equal justice, and moreover does
+not, in the long run, benefit those for whom it is intended. The
+indirect evils upon society at large are even more injurious than those
+which are direct. Men are often thus poor to-day and rich to-morrow. The
+bubble, while it dances in the sunbeam, glitters with golden hues,
+though destined almost immediately to burst and be seen no more.
+
+What government owes to society, and all it owes, is the impartial
+administration of equal and just laws. This produces security of life,
+of liberty, and of property. It has become a favorite maxim, that it is
+the duty of government to promote the happiness of the people. The
+phrase may be interpreted so as to mean well, but it is a very
+inaccurate and unhappy one. It is the inalienable right of men to pursue
+their _own_ happiness; each man under such restraints of law as will
+leave every other man equally free to do the same. The true and only
+true object of government is to secure this right. The happiness of the
+people is the happiness of the individuals who compose the mass.
+Speaking now with reference to those objects only, which human laws can
+reach and influence, he is the happy man, who sees his condition in life
+constantly and gradually, though it may be slowly, improving. Let
+government keep its hands off--do nothing in the way of creating the
+subject-matter of speculation--and things naturally fall into this
+channel. There will be some speculators, as there will be some gamblers;
+but they will be few. The stock market is filled with fancies, which the
+government has manufactured and continues to manufacture to order. It is
+the duty of government to encourage the accumulation of the savings of
+industry. The best way to do so is to guard the strong box from the
+invasion of others, and not itself to invade it. Property has an
+especial claim to protection against the government itself. The power of
+taxation in the legislature is in fact a part of the _eminent domain_; a
+power that must necessarily be reposed in the discretion of every
+government to furnish the means of its own existence. One grievous
+invasion of property--and of course ultimately of labor, from whose
+accumulations all property grows--is by government itself, in the shape
+of taxation for objects not necessary for the common defence and general
+welfare. Men have a right not only to be well governed, but to be
+cheaply governed--as cheaply as is consistent with the due maintenance
+of that security, for which society was formed and government
+instituted. This, the sole legitimate end and object of law, is never to
+be lost sight of--security to men in the free enjoyment and development
+of their capacities for happiness--SECURITY--nothing less--but nothing
+more. To compel men to contribute of the earnings or accumulations of
+industry, their own or inherited, to objects beyond this, not within the
+legitimate sphere of legislation, to appropriate the money in the public
+treasury to such objects, is a perversion and abuse of the powers of
+government, little if anything short of legalized robbery. What is the
+true province of legislation, ought to be better understood. It is worth
+while to remark, that in every new and amended State constitution, the
+bill of rights spreads over a larger space; new as well as more
+stringent restrictions are placed upon legislation. There is no danger
+of this being carried too far; as Chancellor Kent appears to have
+apprehended that it might be. There is not much danger of erring upon
+the side of too little law. The world is notoriously too much governed.
+Legislators almost invariably aim at accomplishing too much.
+Representative democracies, so far from being exempt from this vice, are
+from their nature peculiarly liable to it. Annual legislatures--with
+generally two-thirds new members every year--increase the evil. The
+members fall into the common mistake, that their commission is to act,
+not to decide in the first place whether action is necessary. They would
+be blamed and ridiculed, if they adjourned without doing something
+important. Hence the annual volumes of our Acts of Assembly are
+fearfully growing in bulk. It is not merely of the extent of local
+legislation, the vast multiplication of charters for every imaginable
+purpose, or of the constantly recurring tampering with the most general
+subjects of interest, finance, revenue, banking, education, pauperism,
+&c., that there is reason to complain; but scarce a session of one of
+our legislatures passes without rash and ill-considered alterations in
+the civil code, vitally affecting private rights and relations. Such
+laws are frequently urged by men, having causes pending, who dare not
+boldly ask that a law should be made for their particular case, but who
+do not hesitate to impose upon the legislature by plausible arguments
+the adoption of some general rule, which by a retrospective
+construction, will have the same operation. It is a most monstrous
+practice, which lawyers are bound by the true spirit of their oath of
+office, and by a comprehensive view of their duty to the Constitution
+and laws, which they bear so large a part as well in making as
+administering, to discountenance and prevent. It is to be feared, that
+sometimes it is the counsel of the party who recommends and carefully
+frames the bill, which, when enacted into a law, is legislatively to
+decide the cause. It is time that a resort to such a measure should be
+regarded in public estimation as a flagrant case of professional
+infidelity and misconduct.
+
+This brief sketch of the true province of legislation is enough to
+evince its vast importance. How great is the influence of the lawyers
+as a class upon legislation! Let any man look upon all that has been
+done in this department, and trace it to its sources. He will
+acknowledge that legislation, good or bad, springs from the Bar. There
+is in this country no class of lawyers confined to the mere business of
+the profession--no mere attorneys--no mere special pleaders--no mere
+solicitors in Chancery--no mere conveyancers. However more accurate and
+profound may be the learning of men, whose studies are thus limited to
+one particular branch, it is not to be regretted either on account of
+its influence on the science or the profession. The American lawyer,
+considering the compass of his varied duties, and the probable call
+which will be made on him especially to enter the halls of legislation,
+must be a Jurist. From the ranks of the Bar, more frequently than from
+any other profession, are men called to fill the highest public stations
+in the service of the country, at home and abroad. The American lawyer
+must thus extend his researches into all parts of the science, which has
+for its object human government and law: he must study it in its grand
+outlines as well as in the filling up of details. He is as frequently
+called upon to inquire what the law ought to be as what it is. While a
+broad and marked line separates, and always ought to separate the
+departments of Legislation and Jurisprudence, it is a benefit to both
+that the same class of men should be engaged in both. Practice will thus
+be liberalized by theory, and theory restrained and corrected by
+practice. The mere abstractionist or _doctrinaire_ would aim at the
+formation of a code of great simplicity: the practitioner sees in it the
+parent of uncertainty and injustice. Legal propositions cannot be framed
+with the certainty of mathematical theories. The most carefully studied
+language still leaves room for interpretation and construction. Time
+itself, which works such mighty changes in all things, produces a state
+of circumstances not in the mind of the lawgiver. The existing system,
+it may be, is an unwieldy, inconvenient structure, heavy and grotesque
+from the mixed character of its architecture outwardly, inwardly its
+space too much occupied and its inmates embarrassed by passages and
+circuities. The abstractionist would at once demolish it, and replace it
+by a light, commodious and airy dwelling, more symmetrical and chaste in
+its appearance, better fitted for the comfort and usefulness of its
+inhabitants. The practitioner, who has become familiar with it, who
+observes and admires that silent legislation of the people, which shows
+itself not on the pages of the statute book, and receives its
+recognition in courts of justice only after it has ceased to need even
+that to give it form and vitality, and who understands, therefore, how,
+with little inconvenience, it is made to accommodate itself to every
+change of condition, sits down to a careful calculation of the cost and
+risk of such wholesale change. History and practical experience, alike,
+suggest to him, that the structure is a castle as well as a dwelling, a
+place for security as well as comfort; that its foundations have been
+laid deeply on the solid rock--its masonry more firmly knit together by
+the time it has endured. Yet he will not deny that what can be done
+consistently with security ought to be done. It is worse than in vain to
+oppose all amendment. It will break down every artificial barrier that
+may be reared against it, if it be not quietly and wisely directed in
+those channels which it seeks at the least expense to security and
+stability. Surely it is not conceding too much to this spirit to admit,
+that laws should be composed in accurate but perspicuous language,
+without redundancy of words or involution of sentences; that the policy
+of public measures should not be wrapt up in the folds of State mystery;
+and that all legislation should be based upon the principle of leaving
+the greatest liberty of private judgment and action, consistent with
+public peace and private security. A blind attachment to principles of
+jurisprudence or rules of law because they are ancient, when the
+advancement of the useful arts, the new combinations of trade and
+business, and the influence of more rapid and general intercourse demand
+their repeal or modification, is as much to be deprecated as rash
+innovation and unceasing experiment. Indeed it scarcely ever fails to
+defeat its own end, and though it may retard for a while, renders the
+course of reform more destructive than it otherwise would have been.
+True conservatism is gradualism--the movement onward by slow, cautious,
+and firm steps--but still movement, and that onward. The world, neither
+physically, intellectually, nor morally, was made to stand still. As in
+her daily revolutions on her own axis as well as her annual orbit round
+the sun, she never returns precisely to the same point in space which
+she has ever before occupied, it would seem to be the lesson which the
+Great Author of all Being would most deeply impress upon mind as he has
+written it upon matter; "by ceaseless motion all that is subsists."
+
+What has thus been very cursorily presented will evince that it is the
+province of legislation, by slow and cautious steps, to amend the laws,
+to render them more equal in their operation upon all classes, not
+favoring the rich more than the poor, nor one class of either more than
+another, providing an easy, cheap, and expeditious administration of
+justice by tribunals, whose learning and impartiality shall be so
+secured as to possess the confidence of the community, and by general
+rules for the regulation of conduct and the distribution of estates most
+conformed to the analogies of that system, which is familiar to the
+people in their common law.
+
+Great as is the influence which the profession of the law can and does
+exercise upon the legislation of a country, the actual administration of
+law is entirely in their hands. To a large extent by private counsel, by
+the publication of works of research and learning, by arguments in
+courts of justice to assist those who are to determine what is the law,
+and to apply it to the facts, as well as in the actual exercise of
+judicature, this whole important province of government, which comes
+home so nearly to every man's fireside, is intrusted necessarily to
+lawyers.
+
+In this country we live under the protection of written constitutions;
+not only so, but written constitutions, which have assumed to place
+limits upon the power of majorities, acting at least through their
+ordinary representatives. The construction of these constitutions, or
+constitutional law as it is termed, forms a very important branch of
+American jurisprudence. There have been, and are, in other countries,
+charters, written or unwritten--organic or fundamental laws--but without
+this distinguishing feature. The fundamental laws, thus established in
+point of fact, emanate from the government, and have no sanction beyond
+the oath of those intrusted with the administration of them, the force
+of public opinion, and the responsibility of the representative to his
+constituent. Our constitutions emanate not from the government, but the
+State, the society, the creator of the government; and are, therefore,
+in the strictest sense of the words, _leges legum_. The radical
+principle of our system is, that the act of the legislative body, beyond
+or contrary to the power confided to it by the Constitution, is a
+nullity, and absolutely void. The courts must so pronounce, and the
+executive must execute their judgments with the whole force of the
+State. Upon such a subject it is best to use the very language--the
+_ipsissima verba_--of John Marshall, as, at the same time, expressing
+the doctrine with the greatest force and perspicuity, and presenting, in
+the mere statement, the most convincing argument of its importance. "It
+is emphatically the province and duty of the judicial department to say
+what the law is. Those who apply the rule to particular cases, must, of
+necessity, expound and interpret that rule. If two laws conflict with
+each other, the courts must decide on the operation of each. So if a law
+be in opposition to the Constitution; if both the law and the
+Constitution apply to a particular case, so that the court must either
+decide that case conformably to the law, disregarding the Constitution,
+or conformably to the Constitution, disregarding the law: the court must
+determine which of these conflicting rules governs the case. This is of
+the very essence of judicial duty. If, then, the courts are to regard
+the Constitution, and the Constitution is superior to any ordinary act
+of the legislature, the Constitution, and not such ordinary act, must
+govern the case to which they both apply. Those, then, who controvert
+the principle that the Constitution is to be considered in court as a
+paramount law, are reduced to the necessity of maintaining that courts
+must close their eyes on the Constitution and see only the law. This
+doctrine would subvert the very foundation of all written constitutions.
+It would declare that an act, which, according to the principles and
+theory of our government, is entirely void, is yet, in practice,
+completely obligatory. It would declare that, if the legislature shall
+do what is expressly forbidden, such act, notwithstanding the express
+prohibition, is, in reality, effectual. It would be giving to the
+legislature a practical and real omnipotence with the same breath which
+professes to restrict their powers within narrow limits. It is
+prescribing limits, and declaring that those limits may be passed at
+pleasure." (Marbury _v._ Madison, 1 Cranch, 177.) More weighty words
+than these have never, speaking of human things, fallen from the lips of
+man: weighty in themselves from their own simple but eloquent
+conclusiveness--weightier still from their unspeakable importance, the
+immeasurable influence they have had, and, it is to be hoped, will ever
+continue to have, upon the destinies of the United States of America.
+The judiciary department, though originating nothing, but acting only
+when invoked by parties in the prosecution of their rights, is thus
+necessarily an important political branch of the government. That
+department spreads the broad and impregnable shield of its protection
+over the life, limbs, liberty, and property of the citizen, when invaded
+even by the will of the majority. Our Bills of Rights are, therefore,
+not mere enunciations of abstract principles, but solemn enactments by
+the people themselves, guarded by a sufficient sanction. They have not,
+perhaps, as yet, carried far enough their provisions for the security of
+property from the unjust action of government. The obligation of
+contracts has been declared sacred; the right of eminent domain
+restricted by the provision for compensation. Yet, even as to contracts,
+the legislature may still exercise dangerous powers over the remedy,
+short of taking it away entirely, and over the rules of evidence. As to
+eminent domain, they possess an undefined right to determine the time
+and manner of ascertaining the compensation. Our constitutions are
+frequently undergoing revision; and too much care cannot be exercised to
+strengthen our securities in this quarter. Personal liberty, trial by
+jury, the elective and other political franchises, liberty of
+conscience, of speech and of the press, are able to protect themselves
+in a great measure from their own democratic affinities. It is true,
+that there really is no difference between wresting from a man the few
+dollars, the products or savings of his industry for any period of time,
+and depriving him of his liberty, or chaining him to a log, to work for
+another during the same period. Property eminently stands in need of
+every parchment barrier, which has been or can be thrown around it. An
+eminent Judge in our own State once threw out the opinion that there
+existed in the Constitution no disaffirmance of the power of the
+legislature to take the property of an individual for _private uses_
+with or without compensation. "The clause," he argued, "by which it is
+declared that no man's property shall be taken or applied to _public_
+use, without compensation made, is a disabling, not an enabling one, and
+the right would have existed in full force without it." (Harvey _v._
+Thomas, 10 Watts, 63.) Fortunately, the decision of the court in that
+case did not require a resort to that reasoning, and but little
+examination was sufficient to satisfy the mind that this _obiter dictum_
+was unsustained by either principle or authority. A power in the
+legislature to take the property of A. and give it to B. directly, would
+be of the very essence of despotism. When it is declared in the Bill of
+Rights that no man shall be deprived of his life, liberty, or property,
+unless by the judgment of his peers, or the law of the land, this
+phrase, "law of the land," does not mean merely an act of the
+legislature. If it did, every restriction upon the legislative
+department would be practically abrogated. By an authority as old as
+Lord Coke, in commenting upon these same words in _Magna Charta_, they
+are to be rendered "without due process of law: that is, by indictment
+or presentment of good and lawful men, when such deeds be done in due
+manner, or by writ original of the common law, without being brought
+into answer but by due process of the common law." (2 Inst. 50.) The
+American laws are numerous and uniform to the point (see 1 American Law
+Mag. 315); and the same eminent Judge, to whom reference has been made
+in a later case, declared his adhesion to the sound and true doctrine in
+the most emphatic language, without noticing his own previous _dictum_
+to the contrary. "It was deemed necessary," said he, "to insert a
+special provision in the Constitution to enable them (the legislature)
+to take private property even for public use, and on compensation made;
+but it was not deemed necessary to disable them specially in regard to
+taking the property of an individual, with or without compensation, in
+order to give it to another, not only because the general provision in
+the Bill of Rights was deemed sufficiently explicit for that, but
+because it was expected that no legislature would be so regardless of
+right as to attempt it. Were this reasonable expectation to be
+disappointed, it would become our plain and imperative duty to obey the
+immediate and paramount will of the people, expressed by their voices in
+the adoption of the Constitution, rather than the repugnant will of
+their delegates acting under a restricted but transcended authority."
+(Norman _v._ Heist, 5 W. & S. 171.)
+
+Yet, while the right of private property cannot be thus directly
+invaded, its security against the acts of the legislature is not as
+perfect as it might and ought to be made. The legislature must be
+allowed a large discretion in judging what is a public use: on that
+pretext much may be brought within its sweep unjustly, and the courts,
+in the absence of a constitutional rule, would be embarrassed in
+defining its limits. Experience has shown that much power to do wrong
+lurks under grants by no means essential to the public good. Besides
+what has been before referred to, the assumption of judicial functions
+by the Legislature and the broad field of Chancery jurisdiction over
+trust estates, which it has been held that they may exercise
+immediately, if they see fit, instead of vesting them in appropriate
+tribunals, are fraught with serious danger. The proneness of bodies so
+constituted to disembarrass themselves of the ordinary rules of
+evidence, to act upon _ex parte_ statements and testimony imperfectly
+authenticated, as well as the absence of all legal forms from their
+proceedings, and their numbers, among whom the responsibility of giving
+due attention to the case is divided, add to the peril. The power of
+legislating retrospectively has far too wide a scope; the constitutional
+inhibition of _ex post facto_ laws having been construed to apply to
+criminal or penal cases merely, restraining the legislature from making
+that an offence which was not so at the time of its commission, or
+increasing the punishment annexed to it. The course of legislation in
+this country amply demonstrates the wisdom, and even necessity, of
+extending the same prohibition to civil cases. There is no particular
+or partial inconvenience, which could outweigh the general benefits of a
+provision that no law, public or private, should operate retrospectively
+upon past acts; that the judgment of the tribunals upon every case
+should be according to the law as it was at the time of the transaction,
+which the parties were bound to know, and in accordance with which they
+are to be presumed to have acted.
+
+As well in the domain of public as of private law, the great fundamental
+principle for judge and counsellor ought to be, THAT AUTHORITY IS
+SACRED. There is no inconvenience so great, no private hardship so
+imperative, as to justify the application of a different rule to the
+resolution of a case, than the existing state of the law will warrant.
+"There is not a line from his pen," says Mr. Binney of Chief Justice
+Tilghman, "that trifles with the sacred deposit in his hands by claiming
+to fashion it according to a private opinion of what it ought to be.
+Judicial legislation he abhorred, I should rather say, _dreaded_, as an
+implication of his conscience. His first inquiry in every case was of
+the oracles of the law for their response; and when he obtained it,
+notwithstanding his clear perception of the justice of the cause, and
+his intense desire to reach it, if it was not the justice of the law, he
+dared not to administer it. He acted upon the sentiment of Lord Bacon,
+that it is the foulest injustice to remove landmarks, and that to
+corrupt the law is to poison the very fountains of justice. With a
+consciousness that to the errors of the science there are some limits,
+but none to the evils of a licentious invasion of it, he left it to our
+annual legislature to correct such defects in the system as time either
+created or exposed; and better foundation in the law can no man lay." It
+is not to be denied that there is some difficulty in stating with
+accuracy the limits of the rule _stare decisis_. One, or even more than
+one, recent precedent, especially when it relates to the application
+rather than to the establishment of a rule, is not of so binding a
+character that it must be followed, even though contrary to principles
+adjudged in older cases: but it is just as clear that when a decision
+has been long acquiesced in, when it has been applied in numerous cases,
+and become a landmark in the branch of the science to which it relates,
+when men have dealt and made contracts on the faith of it, whether it
+relates to the right of property itself, or to the evidence by which
+that right may be substantiated, though it may appear to us "flatly
+absurd and unjust," to overrule such a decision is an act of positive
+injustice, as well as a violation of law, and an usurpation by one
+branch of the government upon the powers of another. An example will
+illustrate this position. In the case of Walton _v._ Shelley (1 Term
+Rep. 296), in 1786, the King's Bench, Lord Mansfield, Chief Justice,
+decided that a person is not a competent witness to impeach a security
+which he has given, though he is not interested in the event of the
+suit, on the trial of which he is offered. In Jordaine _v._ Lashbrooke
+(7 Term Rep. 601), the same court, in 1798, under the presidency of Lord
+Kenyon, rightly overruled that decision. Now it so happens that Walton
+_v._ Shelley was recognized as authority and followed in Pennsylvania,
+in 1792, in Stille _v._ Lynch (2 Dall. 194), before it had been
+overruled in England: and though limited as it was understood to be in
+Bent _v._ Baker (3 Term Rep. 34), to negotiable paper (Pleasants _v._
+Pemberton, 2 Dall. 196), it has never been varied from since that time,
+though it has frequently been admitted that Walton _v._ Shelley was
+properly overruled. It ought not now to be overruled in Pennsylvania.
+"After the decisions cited," says Judge Rogers, in Gest _v._ Espy (2
+Watts, 268), "this cannot be considered an open question, nor do we
+think ourselves at liberty now to examine the foundations of the rule."
+Unfortunately our Supreme Court have not always put this sound and wise
+limitation upon their own power. In the case of Post _v._ Avery (5 W. &
+S. 509), they declared in regard to a rule of more than thirty years'
+standing, and confirmed by numerous cases, that they had "vainly hoped
+that the inconvenience of the rule would have attracted the attention of
+the legislature, _who alone are competent to abolish it_;" but as
+nothing was to be expected from that quarter, "they were driven by
+stress of necessity" to overrule a case expressly decided on the
+authority of the rule. (Hart _v._ Heilner, 3 Rawle, 407.) And two years
+afterwards, after having made the remarkable declaration that the
+legislature alone was competent to abolish the rule, they nevertheless
+pronounced it "exploded altogether." (McClelland _v._ Mahon, 1 Barr,
+364.)
+
+Lord Bacon says of retrospective laws: "_Cujus generis leges raro et
+magna cum cautione sunt adhibenda: neque enim placet Janus in legibus._"
+Without any saving clause may the epithet and denunciation be applied to
+judicial laws. They are always _retrospective_, but worse on many
+accounts than _retrospective statutes_. Against the latter we have at
+least the security of the constitutional provision that prohibits the
+passage of any law, which impairs the obligation of a contract,
+executory or executed; and it has been well held that this prohibition
+applies to such an alteration of the law of evidence in force at the
+time the contract was made, as would practically destroy the contract
+itself by destroying the only means of enforcing it. There is no such
+constitutional provision against judicial legislation. It sweeps away a
+man's rights, vested, as he had reason to think, upon the firmest
+foundation, without affording him the shadow of redress. Nor could
+there, in the nature of things, be any such devised. When a court
+overrules a previous decision, it does not simply repeal it; it must
+pronounce it never to have been law. There is no instance on record, in
+which a court has instituted the inquiry, upon what grounds the suitor
+had relied in investing his property or making his contract, and
+relieved him from the disastrous consequences, not of his, but of their
+mistake, or the mistake of their predecessors. The man who, on the faith
+of Steele _v._ The Ph[oe]nix Ins. Co. (3 Binn. 306), decided in 1811,
+and treated as so well settled in itself and all its logical
+consequences, that in 1832 (Hart _v._ Heilner, 3 Rawle, 407) the Supreme
+Court, declined to hear the counsel, who relied on its authority,
+invested his money in the purchase of a claim which could be proved only
+by the testimony of the assignor, found himself stripped of his property
+by a decision in 1845, the results of which were broader than even the
+legislature itself would have been competent to effect, or indeed the
+people themselves in their sovereign capacity, at least so long as the
+Constitution of the United States continues to be "the supreme law of
+the land, anything in the _constitution_ and laws of any State to the
+contrary notwithstanding."
+
+But judicial is much worse than legislative retrospection in another
+aspect. The act of Assembly, if carefully worded, is at least a certain
+rule. The act of the judicial legislature is invariably the precursor of
+uncertainty and confusion. Apply to it a test, which may be set down as
+unerring, never failing soon to discover the true metal from the base
+counterfeit: its effect upon litigation. A decision in conformity to
+established precedents is the mother of repose on that subject; but one
+that departs from them throws the professional mind at sea without
+chart or compass. The cautious counsellor will be compelled to say to
+his client that he cannot advise. One cause is the general uncertainty
+to which it leads. Men will persuade themselves easily, when it is their
+interest to be persuaded, that if one well-established rule has been
+overthrown, another, believed to be quite as wrong and perhaps not so
+well fortified by time and subsequent cases, may share the same fate.
+Shall counsel risk advising his client not to prosecute his claim or
+defence, when another bolder than he, may moot the point and conduct
+another cause resting upon the same question to a successful
+termination? The very foundations of confidence and security are shaken.
+The law becomes a lottery, in which every man feels disposed to try his
+chance. Another cause of this uncertainty is more particular. A court
+scarcely ever makes an open and direct overthrow of a deeply founded
+rule at one stroke. It requires repeated blows. It can be seen to be in
+danger, but not whether it is finally to fall. Hence it frequently
+happens that there is a sliding scale of cases; and when the final
+overthrow comes, it is very difficult to determine, whether any and
+which steps of the process remain. Shortly after the decision in Post
+_v._ Avery, the case of Fraley _v._ Bispham was tried in one of the
+inferior courts; in which the Judge, thinking that Post _v._ Avery,
+however the intention may have been disclaimed, did in fact overrule
+Steele _v._ The Ph[oe]nix, rejected as incompetent one of the nominal
+plaintiffs, a retiring partner, who upon dissolution had sold out for a
+price _bona fide_ paid, all his interest in the firm to his copartners,
+who continued the business. A motion was made for a new trial, and
+before the rule came on to be heard, Patterson _v._ Reed (7 W. & S. 144)
+had appeared, and the court, on the authority of that case, which
+decided that an assignment must be colorable and made for the purpose of
+rendering the assignor a witness in order to exclude him, ordered a new
+trial. Before the case was again called for trial, the first volume of
+Barr's Reports had been published, in which the Supreme Court said:
+"The time is come, when the doctrine of Steele _v._ The Ph[oe]nix Ins.
+Co. must be exploded altogether. The essential interests of justice
+demand that the decision in that case be no longer a precedent for
+anything whatever." (McClelland _v._ Mahon, 1 Barr, 364.) And the Judge
+before whom the cause was then tried had no other course left, but again
+to reject the witness, the very same thing on account of which a new
+trial had been ordered.
+
+The case of Post _v._ Avery is a most striking illustration of judicial
+legislation and its mischievous results. It is usual to hear it excused
+on account of the unequal and unjust operation of the rule reversed, by
+which one party was heard but not the other, and the temptation it held
+out for the manufacture of false claims, to be supported by perjury. But
+it is to lose sight of the real question involved to raise such an
+issue: for, like the execution of a notorious culprit by the expeditious
+process of a mob and a lamp-post, instead of the formalities and delays
+of law and courts, it may be a very good thing for the community to
+have rid itself of the offender, but the way by which it was
+accomplished was a heavy blow at the very root of the tree of public and
+private security.
+
+There is another decision of the Supreme Court of Pennsylvania, not so
+bold and avowed an act of judicial legislation as that just mentioned,
+but not less transparent, which may be cited as strongly illustrating
+the same consequences of uncertainty and litigation flowing from a
+disregard of the principle adverted to. From the year 1794, there had
+existed in Pennsylvania an act of Assembly limiting the lien of the
+debts of a decedent on his real estate, at first to seven, afterwards to
+five years. No question ever arose before the court in regard to it.
+Lien was considered to mean lien and not obligation: lands to be subject
+to execution for all debts of the owner prosecuted to judgment, and of
+course not barred by the Statute of Limitations; and the limitation of
+the lien merely intended for the protection of purchasers from the heirs
+or devisees or their lien creditors. Such was recognized to be the true
+meaning of the law in 1795 (Hannum _v._ Spear, 1 Yeats, 566), and so
+distinctly ruled in 1830 (Bruch _v._ Lantz, 2 Rawle, 392); yet on
+grounds palpably only relevant to what, in the opinion of the court, the
+law ought to be, it was held in 1832, in Kerper _v._ Hoch (1 Watts, 9),
+that the period named was a limitation not of the lien but of the debt
+itself, and available in favor of heirs and devisees, volunteers under
+the debtor and succeeding to his rights _cum onere_. As we have seen,
+but two cases are to be produced of litigation arising out of this law
+carried to the highest tribunal from 1794 to 1832. More than twenty
+cases are to be found reported since, in which that court has been
+called upon to draw distinctions and settle the precise extent of their
+own law. Thus a little complicated system has grown up on this
+construction of the act. A volume, indeed, might be written on Kerper
+_v._ Hoch and its satellites, when if the act had been let alone to
+speak for itself, and the prior decision followed, it would have been a
+simple and intelligible rule of action, until the legislature saw fit
+to alter it. It seems that this consideration pressed upon at least one
+of the judges, who joined in that decision; for in a subsequent case,
+when Kerper _v._ Hoch was cited, that Judge, with characteristic candor,
+interrupted the counsel with the remark: "We will abide by the rule, but
+it was erroneously decided." (Hocker's Appeal, 4 Barr, 498.)
+
+This, then, is the legitimate province of Jurisprudence, _Stare super
+antiquas vias_, to maintain the ancient landmarks, to respect authority,
+to guard the integrity of the law as a science, that it may be a certain
+rule of decision, and promote that security of life, liberty, and
+property, which, as we have seen, is the great end of human society and
+government. Thus industry will receive its best encouragement; thus
+enterprise will be most surely stimulated; thus constant additions to
+capital by savings will be promoted; thus the living will be content in
+the feeling that their earnings are safely invested; and the dying be
+consoled with the reflection that the widow and orphan are left under
+the care and protection of a government, which administers impartial
+justice according to established laws.
+
+With jurisprudence, lawyers have the most, nay all, to do. The opinion
+of the Bar will make itself heard and respected on the Bench. With sound
+views, their influence for good in this respect may well be said to be
+incalculable. It is indeed the noblest faculty of the profession to
+counsel the ignorant, defend the weak and oppressed, and to stand forth
+on all occasions as the bulwark of private rights against the assaults
+of power, even under the guise of law; but it has still other functions.
+It is its office to diffuse sound principles among the people, that they
+may intelligently exercise the controlling power placed in their hands,
+in the choice of their representatives in the Legislature and of Judges,
+in deciding, as they are often called upon to do, upon the most
+important changes in the Constitution, and above all in the formation of
+that public opinion which may be said in these times, almost without a
+figure, to be _ultimate sovereign_. Whether they seek them or are
+sought, lawyers, in point of fact, always have filled, in much the
+larger proportion over every other profession, the most important public
+posts. They will continue to do so, at least so long as the profession
+holds the high and well-merited place it now does in the public
+confidence.
+
+
+
+
+PROFESSIONAL ETHICS.
+
+
+There is, perhaps, no profession, after that of the sacred ministry, in
+which a high-toned morality is more imperatively necessary than that of
+the law. There is certainly, without any exception, no profession in
+which so many temptations beset the path to swerve from the line of
+strict integrity; in which so many delicate and difficult questions of
+duty are continually arising. There are pitfalls and man-traps at every
+step, and the mere youth, at the very outset of his career, needs often
+the prudence and self-denial, as well as the moral courage, which belong
+commonly to riper years. High moral principle is his only safe guide;
+the only torch to light his way amidst darkness and obstruction. It is
+like the spear of the guardian angel of Paradise:
+
+              No falsehood can endure
+    Touch of celestial temper, but returns
+    Of force to its own likeness.
+
+The object of this Essay is to arrive at some accurate and intelligible
+rules by which to guide and govern the conduct of professional life. It
+would not be a difficult task to declaim in general propositions--to
+erect a perfect standard and leave the practitioner to make his own
+application to particular cases. It is a difficult task, however, as it
+always is in practice, to determine the precise extent of a principle,
+so as to know when it is encountered and overcome by another--to weigh
+the respective force of duties which appear to come in conflict. In all
+the walks of life men have frequently to do this: in none so often as at
+the Bar.
+
+The responsibilities, legal and moral, of the lawyer, arise from his
+relations to the court, to his professional brethren and to his client.
+It is in this order that it is proposed to consider and discuss the
+various topics which grow out of this subject.
+
+The oath directed by law in this State to be administered upon the
+admission of an attorney to the bar, "to behave himself in the office of
+attorney according to the best of his learning and ability, and with all
+good fidelity, as well to the court as to the client; that he will use
+no falsehood, nor delay any man's cause for lucre or malice," presents a
+comprehensive summary of his duties as a practitioner.[1]
+
+Fidelity to the court, fidelity to the client, fidelity to the claims of
+truth and honor: these are the matters comprised in the oath of office.
+
+It is an oath of office, and the practitioner, the incumbent of an
+office--an office in the administration of justice[2]--held by authority
+from those who represent in her tribunals the majesty of the
+commonwealth, a majesty truly more august than that of kings or
+emperors. It is an office, too, clothed with many privileges--privileges,
+some of which are conceded to no other class or profession.[3] It is,
+therefore, that the legislature have seen fit to require that there
+should be added to the solemnity of the responsibility, which every man
+virtually incurs when he enters upon the practice of his profession,
+the higher and more impressive sanction of an appeal to the Searcher of
+all Hearts.
+
+Fidelity to the court, requires outward respect in words and actions.
+The oath as it has been said, undoubtedly looks to nothing like
+allegiance to the person of the judge; unless in those cases where his
+person is so inseparable from his office, that an insult to the one, is
+an indignity to the other. In matters collateral to official duty, the
+judge is on a level with the members of the bar, as he is with his
+fellow-citizens; his title to distinction and respect resting on no
+other foundation, than his virtues and qualities as a man.[4] There are
+occasions, no doubt, when duty to the interests confided to the charge
+of the advocate demands firm and decided opposition to the views
+expressed or the course pursued by the court, nay, even manly and open
+remonstrance; but this duty may be faithfully performed, and yet that
+outward respect be preserved, which is here inculcated. Counsel should
+ever remember how necessary it is for the dignified and honorable
+administration of justice, upon which the dignity and honor of their
+profession entirely depend, that the courts and the members of the
+courts, should be regarded with respect by the suitors and people; that
+on all occasions of difficulty or danger to that department of
+government, they should have the good opinion and confidence of the
+public on their side. Good men of all parties prefer to live in a
+country, in which justice according to law is impartially administered.
+Counsel should bear in mind also the wearisomeness of a judge's office;
+how much he sees and hears in the course of a long session, to try his
+temper and patience. Lord Campbell has remarked that it is rather
+difficult for a judge altogether to escape the imputation of discourtesy
+if he properly values the public time; for one of his duties is to
+"render it disagreeable to counsel to talk nonsense." Respectful
+submission, nay, most frequently, even cheerful acquiescence in a
+decision, when, as is most generally the case, no good result to his
+cause can grow from any other course, is the part of true wisdom as well
+as civility. An exception may be noted to the opinion of the Bench, as
+easily in an agreeable and polite, as in a contemptuous and insulting
+manner. The excitement of the trial of a cause caused by the conflict of
+testimony, making often the probabilities of success to vibrate
+backwards and forwards with as much apparent uncertainty as the chances
+in a game of hazard, is no doubt often the reason and apology for
+apparent disrespect in manner and language; but let it be observed, that
+petulance in conflicts with the Bench, which renders the trial of causes
+disagreeable to all concerned, has most generally an injurious effect
+upon the interests of clients.
+
+Indeed, it is highly important that the temper of an advocate should be
+always equal. He should most carefully aim to repress everything like
+excitability or irritability. When passion is allowed to prevail, the
+judgment is dethroned. Words are spoken, or things done, which the
+parties afterwards wish could be unsaid or undone. Equanimity and
+self-possession are qualities of unspeakable value. An anecdote may
+serve to illustrate this remark. There was a gentleman of the Bar of
+Philadelphia, many years ago, who possessed these qualities in a very
+remarkable degree. He allowed nothing that occurred in a cause to
+disturb or surprise him. On an occasion in one of the neighboring
+counties, the circuit of which it was his custom to ride, he was trying
+a cause on a bond, when a witness for defendant was introduced, who
+testified that the defendant had taken the amount of the bond, which was
+quite a large sum, from his residence to that of the obligee, a distance
+of several miles, and paid him in silver in his presence. The evidence
+was totally unexpected; his clients were orphan children; all their
+fortune was staked on this case. The witness had not yet committed
+himself as to how the money was carried. Without any discomposure--without
+lifting his eyes or pen from paper--he made on the margin of his notes
+of trial a calculation of what that amount in silver would weigh; and
+when it came his turn to cross-examine, calmly proceeded to make the
+witness repeat his testimony step by step,--when, where, how, and how
+far the money was carried--and then asked him if he knew how much that
+sum of money weighed, and upon naming the amount, so confounded the
+witness, party, and counsel engaged for the defendant, that the defence
+was at once abandoned, and a verdict for the plaintiff rendered on the
+spot.[5]
+
+Another plain duty of counsel is to present every thing in the cause to
+the court openly in the course of the public discharge of its duties. It
+is not often, indeed, that gentlemen of the Bar so far forget themselves
+as to attempt to exert privately an influence upon the judge, to seek
+private interviews, or take occasional opportunities of accidental or
+social meetings to make _ex parte_ statements, or to endeavor to impress
+their views. They know that such conduct is wrong in itself, and has a
+tendency to impair confidence in the administration of justice, which
+ought not only to be pure but unsuspected. A judge will do right to
+avoid social intercourse with those who obtrude such unwelcome matters
+upon his moments of relaxation. There is one thing, however, of which
+gentlemen of the Bar are not sufficiently careful,--to discourage and
+prohibit their clients from pursuing a similar course. The position of
+the judge in relation to a cause under such circumstances is very
+embarrassing, especially, as is often the case, if he hears a good deal
+about the matter before he discovers the nature of the business and
+object of the call upon him. Often the main purpose of such visits is
+not so much to plead the cause, as to show the judge who the party
+is--an acquaintance, perhaps--and thus, at least, to interest his
+feelings. Counsel should set their faces against all undue influences of
+the sort; they are unfaithful to the court, if they allow any improper
+means of the kind to be resorted to. _Judicem nec de obtinendo jure
+orari oportet nec de injuria exorari._ It may be in place to remark here
+that the counsel in a cause ought to avoid all unnecessary communication
+with the jurors before or during any trial in which he may be
+concerned. He should enforce the same duty upon his client. Any attempt
+by an attorney to influence a juror by arguments or otherwise, will, of
+course, if discovered and brought to the notice of the court, lead to
+expulsion or suspension from the Bar, according to the degree and
+quality of the offence. The freedom of the jury-box from extraneous
+influences is a matter of such vital moment in our system that the
+courts are bound to watch over it with jealous eyes. "It would be an
+injury to the administration of justice," says C. J. Tilghman, "not to
+declare that it is gross misbehavior for any person to speak with a
+juror, or for a juror to permit any person to speak with him, respecting
+the cause he is trying, at any time after he is summoned and before the
+verdict is delivered." "The words thus uttered," says Judge Hare, "by
+one of the best men and purest magistrates that ever filled the judicial
+office, must find an echo in every bosom. The principle which dictated
+them does not require the aid of argument or elucidation; it is native
+to the conscience, and will be apparent to all who consult the monitor
+in their own breast. The wrong is aggravated when the taint of personal
+interest mingles with it, as when committed by a party to the cause, but
+appears in the worst form when it is the act of attorneys or counsel,
+who are the sworn officers of the court, whose duty it is to act as
+guardians of the fountains of justice, and who are false to their charge
+when they defile or taint those waters, which they are pledged to keep
+pure and unpolluted. Such conduct in counsel is a gross breach of trust,
+for which a removal from the trust is but an inadequate punishment."[6]
+
+There is another duty to the court, and that is, to support and maintain
+it in its proper province wherever it comes in conflict with the
+co-ordinate tribunal--the jury. The limits of these two provinces are
+settled with great accuracy; and even if a judge makes a mistake, the
+only proper place to correct his error is in the superior tribunal,--the
+Court of Errors. It has been held in a multitude of cases, that verdicts
+against the charge of the court in point of law, will be set aside
+without limitation as to the number of times, and that without regard to
+the question whether the direction of the court in point of law was
+right or wrong. There is a technical reason, which makes this course in
+all cases imperative. The losing party, if the jury were allowed to
+decide the law for him, would be deprived of his exception, and of his
+unquestionable right to have the law of his case pronounced upon by the
+Supreme Court. _Ad questiones juris respondeant judices,--ad questiones
+facti juratores._ A disregard by the jury of the law, as laid down by
+the judge, is always therefore followed by additional and unnecessary
+delay and expense, and it is never an advantage to a party in the long
+run to obtain a verdict in opposition to the direction of the court.[7]
+It is best for counsel to say in such cases, where nothing is left by
+the charge to the jury, that they do not ask for a verdict. It has a
+fair, candid, and manly aspect towards court, jury, opposite party, and
+even client. Instances of counsel urging or endeavoring to persuade a
+jury to disregard the charge may sometimes occur, but they are
+exceedingly rare when there is good feeling between the Bench and the
+Bar, and when the members of the profession have just and enlightened
+views of their duty as well as interest.
+
+It need hardly be added that a practitioner ought to be particularly
+cautious, in all his dealings with the court, to use no deceit,
+imposition, or evasion--to make no statements of facts which he does not
+know or believe to be true--to distinguish carefully what lies in his
+own knowledge from what he has merely derived from his instructions--to
+present no paper-books intentionally garbled. "Sir Matthew Hale
+abhorred," says his biographer, "those too common faults of
+misrepresenting evidence, quoting precedents or books falsely, or
+asserting anything confidently by which ignorant juries and weak judges
+are too often wrought upon."[8] One such false step in a young lawyer
+will do him an injury in the opinion of the Bench and of his
+professional brethren, which it will take years to redeem, if indeed it
+ever can be entirely redeemed.
+
+A very great part of a man's comfort, as well as of his success at the
+Bar, depends upon his relations with his professional brethren. With
+them he is in daily necessary intercourse, and he must have their
+respect and confidence, if he wishes to sail along in smooth waters. He
+cannot be too particular in keeping faithfully and liberally every
+promise or engagement he may make to them. One whose perfect
+truthfulness is even suspected by his brethren at the Bar has always an
+uneasy time of it. He will be constantly mortified by observing
+precautions taken with him which are not used with others. It is not
+only morally wrong but dangerous to mislead an opponent, or put him on
+a wrong scent in regard to the case. It would be going too far to say
+that it is ever advisable to expose the weakness of a client's cause to
+an adversary, who may be unscrupulous in taking advantage of it; but it
+may be safely said, that he who sits down deliberately to plot a
+surprise upon his opponent, and which he knows can succeed only by its
+being a surprise, deserves to fall, and in all probability will fall,
+into the trap which his own hands have laid. "Whoso diggeth a pit," says
+the wise man, "shall fall therein, and he that rolleth a stone, it will
+return upon him." If he should succeed, he will have gained with his
+success not the admiration and esteem, but the distrust and dislike of
+one of his associates as long as he lives. He should never unnecessarily
+have a personal difficulty with a professional brother. He should
+neither give nor provoke insult. Nowhere more than at the Bar is that
+advice valuable:
+
+                               "Beware
+    Of entrance to a quarrel; but being in,
+    Bear it that the opposed may beware of thee."
+
+There is one more caution to be given under this head. Let him shun most
+carefully the reputation of a sharp practitioner. Let him be liberal to
+the slips and oversights of his opponent wherever he can do so, and in
+plain cases not shelter himself behind the instructions of his client.
+The client has no right to require him to be illiberal--and he should
+throw up his brief sooner than do what revolts against his own sense of
+what is demanded by honor and propriety.
+
+Nothing is more certain than that the practitioner will find, in the
+long run, the good opinion of his professional brethren of more
+importance than that of what is commonly called the public. The
+foundations of the reputation of every truly great lawyer will be
+discovered to have been laid here. Sooner or later, the real public--the
+business men of the community, who have important lawsuits, and are
+valuable clients--indorse the estimate of a man entertained by his
+associates of the Bar, unless indeed there be some glaring defect of
+popular qualities. The community know that they are better qualified to
+judge of legal attainments, that they have the best opportunity of
+judging, and that they are slow in forming a judgment. The good opinion
+and confidence of the members of the same profession, like the King's
+name on the field of battle, is "a tower of strength;" it is the title
+of legitimacy. The ambition to please the people, to captivate jurors,
+spectators, and loungers about the court room, may mislead a young man
+into pertness, flippancy, and impudence, things which often pass current
+for eloquence and ability with the masses; but the ambition to please
+the Bar can never mislead him. Their good graces are only to be gained
+by real learning, by the strictest integrity and honor, by a courteous
+demeanor, and by attention, accuracy and punctuality in the transaction
+of business.
+
+The topic of fidelity to the client involves the most difficult
+questions in the consideration of the duty of a lawyer.
+
+He is legally responsible to his client only for the want of ordinary
+care and ordinary skill. That constitutes gross negligence. It is
+extremely difficult to fix upon any rule which shall define what is
+negligence in a given case. The habits and practice of men are widely
+different in this regard. It has been laid down that if the ordinary and
+average degree of diligence and skill could be determined, it would
+furnish the true rule.[9] Though such be the extent of legal liability,
+that of moral responsibility is wider. Entire devotion to the interest
+of the client, warm zeal in the maintenance and defence of his rights,
+and the exertion of his utmost learning and ability,--these are the
+higher points, which can only satisfy the truly conscientious
+practitioner.
+
+But what are the limits of his duty when the legal demands or interests
+of his client conflict with his own sense of what is just and right?
+This is a problem by no means of easy solution.
+
+That lawyers are as often the ministers of injustice as of justice is
+the common accusation in the mouth of gainsayers against the profession.
+It is said there must be a right and a wrong side to every lawsuit. In
+the majority of cases it must be apparent to the advocate, on which side
+is the justice of the cause; yet he will maintain, and often with the
+appearance of warmth and earnestness, that side which he must know to be
+unjust, and the success of which will be a wrong to the opposite party.
+Is he not then a participator in the injustice?
+
+It may be answered in general:--
+
+Every case is to be decided by the tribunal before which it is brought
+for adjudication upon the evidence, and upon the principles of law
+applicable to the facts as they appear upon the evidence. No court or
+jury are invested with any arbitrary discretion to determine a cause
+according to their mere notions of justice. Such a discretion vested in
+any body of men would constitute the most appalling of despotisms. Law,
+and justice according to law--this is the only secure principle upon
+which the controversies of men can be decided. It is better on the whole
+that a few particular cases of hardship and injustice, arising from
+defect of evidence or the unbending character of some strict rule of
+law, should be endured, than that general insecurity should pervade the
+community from the arbitrary discretion of the judge. It is this which
+has blighted the countries of the East as much as cruel laws or despotic
+executives. Thus the legislature has seen fit in certain cases to assign
+a limit to the period within which actions shall be brought; in order to
+urge men to vigilance, and to prevent stale claims from being suddenly
+revived against men whose vouchers are destroyed or whose witnesses are
+dead. It is true, _in foro conscientiæ_, a defendant, who knows that he
+honestly owes the debt sued for and that the delay has been caused by
+indulgence or confidence on the part of his creditor, ought not to plead
+the statute. But if he does plead it, the judgment of the court must be
+in his favor.
+
+Now the lawyer is not merely the agent of the party; he is an officer of
+the court. The party has a right to have his case decided upon the law
+and the evidence, and to have every view presented to the minds of his
+judges, which can legitimately bear upon that question. This is the
+office which the advocate performs. He is not morally responsible for
+the act of the party in maintaining an unjust cause, nor for the error
+of the court, if they fall into error, in deciding it in his favor. The
+court or jury ought certainly to hear and weigh both sides; and the
+office of the counsel is to assist them by doing that, which the client
+in person, from want of learning, experience, and address, is unable to
+do in a proper manner. The lawyer, who refuses his professional
+assistance because in his judgment the case is unjust and indefensible,
+usurps the functions of both judge and jury.
+
+As an answer to any sweeping objection made to the profession in
+general, the view thus presented may be quite satisfactory. It by no
+means follows, however, as a principle of private action for the
+advocate, that all causes are to be taken by him indiscriminately and
+conducted with a view to one single end, _success_. It is much to be
+feared, however, that the prevailing tone of professional ethics leads
+practically to this result. He has an undoubted right to refuse a
+retainer, and decline to be concerned in any cause, at his discretion.
+It is a discretion to be wisely and justly exercised. When he has once
+embarked in a case, he cannot retire from it without the consent of his
+client or the approbation of the court.[10] To come before the court
+with a revelation of facts, damning to his client's case, as a ground
+for retiring from it, would be a plain breach of the confidence reposed
+in him, and the law would seal his lips.[11] How then is he to acquit
+himself? Lord Brougham, in his justly celebrated defence of the Queen,
+went to very extravagant lengths upon this subject; no doubt he was led
+by the excitement of so great an occasion to say what cool reflection
+and sober reason certainly never can approve. "An advocate," said he,
+"in the discharge of his duty knows but one person in all the world, and
+that person is his client. To save that client by all means and
+expedients, and at all hazards and costs to other persons, and among
+them to himself, is his first and only duty; and in performing this
+duty he must not regard the alarm, the torments, the destruction he may
+bring upon others. Separating the duty of a patriot from that of an
+advocate, he must go on reckless of consequences; though it should be
+his unhappy lot to involve his country in confusion."
+
+On the other hand, and as illustrative of the practical difficulty,
+which this question presented to a man, with as nice a perception of
+moral duty as perhaps ever lived, it is said by Bishop Burnet, of Sir
+Matthew Hale: "If he saw a cause was unjust, he for a great while would
+not meddle further in it, but to give his advice that _it was so_; if
+the parties after that would go on, they were to seek another
+counsellor, for he would assist none in acts of injustice; if he found
+the cause doubtful or weak in point of law, he always advised his
+clients to agree their business. Yet afterwards he abated much of the
+scrupulosity he had about causes that appeared at first unjust, upon
+this occasion; there were two causes brought him, which by the ignorance
+of the party or their attorney, were so ill-represented to him that they
+seemed to be very bad; but he inquiring more narrowly into them, found
+they were really very good and just; so after this he slackened much of
+his former strictness of refusing to meddle in causes upon the ill
+circumstances that appeared in them at first."[12]
+
+It may be delicate and dangerous ground to tread upon to undertake to
+descend to particulars upon such a subject. Every case must, to a great
+degree, depend upon its own circumstances, known, peradventure, to the
+counsel alone; and it will often be hazardous to condemn either client
+or counsel upon what appears only. A hard plea--a sharp point--may
+subserve what is at bottom an honest claim, or just defence; though the
+evidence may not be within the power of the parties, which would make it
+manifest.
+
+There are a few propositions, however, which appear to me to be sound in
+themselves, and calculated to solve this problem practically in the
+majority of cases: at least to assist the mind in coming to a safe
+conclusion _in foro conscientiæ_, in the discharge of professional duty.
+
+There is a distinction to be made between the case of prosecution and
+defence for crimes; between appearing for a plaintiff in pursuit of an
+unjust claim, and for a defendant in resisting what appears to be a just
+one.
+
+Every man, accused of an offence, has a constitutional right to a trial
+according to law: even if guilty, he ought not to be convicted and
+undergo punishment unless upon legal evidence; and with all the forms
+which have been devised for the security of life and liberty. These are
+the panoply of innocence when unjustly arraigned; and guilt cannot be
+deprived of it, without removing it from innocence. He is entitled,
+therefore, to the benefit of counsel to conduct his defence, to
+cross-examine the witnesses for the State, to scan, with legal
+knowledge, the forms of the proceeding against him, to present his
+defence in an intelligible shape, to suggest all those reasonable doubts
+which may arise from the evidence as to his guilt, and to see that if he
+is convicted, it is according to law. A circumstance the celebrated Lord
+Shaftesbury once so finely turned to his purpose must often happen to a
+prisoner at his trial. Attempting to speak on the bill for granting
+counsel to prisoners in cases of high treason, he was confounded, and
+for some time could not proceed, but recovering himself, he said, "What
+now happened to him would serve to fortify the arguments for the bill.
+If he innocent and pleading for others was daunted at the augustness of
+such an assembly, what must a man be who should plead before them for
+his life?"[13] The courts are in the habit of assigning counsel to
+prisoners who are destitute, and who request it; and counsel thus named
+by the court cannot decline the office.[14] It is not to be termed
+screening the guilty from punishment, for the advocate to exert all his
+ability, learning, and ingenuity, in such a defence, even if he should
+be perfectly assured in his own mind of the actual guilt of the
+prisoner.[15]
+
+It is a different thing to engage as private counsel in a prosecution
+against a man whom he knows or believes to be innocent. Public
+prosecutions are carried on by a public officer, the Attorney-General,
+or those who act in his place; and it ought to be a clear case to induce
+gentlemen to engage on behalf of private interests or feelings, in such
+a prosecution. It ought never to be done against the counsel's own
+opinion of its merits. There is no call of professional duty to balance
+the scale, as there is in the case of a defendant. It is in every case
+but an act of courtesy in the Attorney-General to allow private counsel
+to take part for the Commonwealth; such a favor ought not to be asked,
+unless in a cause believed to be manifestly just. The same remarks apply
+to mere assistance in preparing such a cause for trial out of court, by
+getting ready and arranging the evidence and other matters connected
+with it: as the Commonwealth has its own officers, it may well, in
+general, be left to them. There is no obligation on an attorney to
+minister to the bad passions of his client; it is but rarely that a
+criminal prosecution is pursued for a valuable private end, the
+restoration of goods, the maintenance of the good name of the
+prosecutor, or closing the mouth of a man who has perjured himself in a
+court of justice. The office of Attorney-General is a public trust,
+which involves in the discharge of it, the exertion of an almost
+boundless discretion, by an officer who stands as impartial as a judge.
+"The professional assistant, with the regular deputy, exercises not his
+own discretion, but that of the Attorney-General, whose _locum tenens_
+at sufferance, he is; and he consequently does so under the obligation
+of the official oath."[16] On the other hand, if it were considered that
+a lawyer was bound or even had a right to refuse to undertake the
+defence of a man because he thought him guilty, if the rule were
+universally adopted, the effect would be to deprive a defendant, in such
+cases, of the benefit of counsel altogether.
+
+The same course of remark applies to civil causes. A defendant has a
+legal right to require that the plaintiffs demand against him should be
+proved and proceeded with according to law. If it were thrown upon the
+parties themselves, there would he a very great inequality between them,
+according to their intelligence, education, and experience,
+respectively. Indeed, it is one of the most striking advantages of
+having a learned profession, who engage as a business in representing
+parties in courts of justice, that men are thus brought nearer to a
+condition of equality, that causes are tried and decided upon their
+merits, and do not depend upon the personal characters and
+qualifications of the immediate parties.[17] Thus, too, if a suit be
+instituted against a man to recover damages for a tort, the defendant
+has a right to all the ingenuity and eloquence he can command in his
+defence, that even if he has committed a wrong, the amount of the
+damages may not exceed what the plaintiff is justly entitled to recover.
+But the claim of a plaintiff stands upon a somewhat different footing.
+Counsel have an undoubted right, and are in duty bound, to refuse to be
+concerned for a plaintiff in the legal pursuit of a demand, which
+offends his sense of what is just and right. The courts are open to the
+party in person to prosecute his own claim, and plead his own cause;
+and although he ought to examine and be well-satisfied before he refuses
+to a suitor the benefit of his professional skill and learning, yet it
+would be on his part an immoral act to afford that assistance, when his
+conscience told him that the client was aiming to perpetrate a wrong
+through the means of some advantage the law may have afforded him. "It
+is a popular but gross mistake," says the late Chief Justice Gibson, "to
+suppose that a lawyer owes no fidelity to any one except his client, and
+that the latter is the keeper of his professional conscience. He is
+expressly bound by his official oath to behave himself, in his office of
+attorney, with all fidelity to the court as well as the client; and he
+violates it when he consciously presses for an unjust judgment, much
+more so when he presses for the conviction of an innocent man.... The
+high and honorable office of a counsel would be degraded to that of a
+mercenary, were he compelled to do the biddings of his client against
+the dictates of his conscience."[18] The sentiment has been expressed
+in flowing numbers by our great commentator, Sir William Blackstone:--
+
+   "To Virtue and her friends a friend,
+    Still may my voice the weak defend:
+    Ne'er may my prostituted tongue
+    Protect the oppressor in his wrong;
+    Nor wrest the spirit of the laws,
+    To sanctify the villain's cause."
+
+Another proposition which may be advanced upon this subject is, that
+there may and ought to be a difference made in the mode of conducting a
+defence against what is believed to be a righteous, and what is believed
+to be an unrighteous claim. A defence in the former case should be
+conducted upon the most liberal principles. When he is contending
+against the claim of one, who is seeking, as he believes, through the
+forms of law, to do his client an injury, the advocate may justifiably
+avail himself of every honorable ground to defeat him. He may begin at
+once by declaring to his opponent or his professional adviser, that he
+holds him at arm's length, and he may keep him so during the whole
+contest. He may fall back upon the instructions of his client, and
+refuse to yield any legal vantage ground, which may have been gained
+through the ignorance or inadvertence of his opponent. Counsel, however,
+may and even ought to refuse to act under instructions from a client to
+defeat what he believes to be an honest and just claim, by insisting
+upon the slips of the opposite party, by sharp practice, or special
+pleading--in short, by any other means than a fair trial on the merits
+in open court. There is no professional duty, no virtual engagement with
+the client, which compels an advocate to resort to such measures, to
+secure success in any cause, just or unjust; and when so instructed, if
+he believes it to be intended to gain an unrighteous object, he ought
+to throw up the cause, and retire from all connection with it, rather
+than thus he a participator in other men's sins.
+
+Moreover, no counsel can with propriety and a good conscience express to
+court or jury his belief in the justice of his client's cause, contrary
+to the fact. Indeed, the occasions are very rare in which he ought to
+throw the weight of his own private opinion into the scales in favor of
+the side he has espoused. If that opinion has been formed on a statement
+of facts not in evidence, it ought not to be heard,--it would be illegal
+and improper in the tribunal to allow any force whatever to it; if on
+the evidence only, it is enough to show from that the legal and moral
+grounds on which such opinion rests. Some very sound and judicious
+observations have been made by Mr. Whewell in a recent work on the
+Elements of Moral and Political Science, which deserve to be quoted at
+length;--
+
+"Some moralists," says he, "have ranked with the cases in which
+convention supersedes the general rule of truth, an advocate asserting
+the justice, or his belief in the justice, of his client's cause. Those
+who contend for such indulgence argue that the profession is an
+instrument for the administration of justice: he is to do all he can for
+his client: the application of laws is a matter of great complexity and
+difficulty: that the right administration of them in doubtful cases is
+best provided for if the arguments on each side are urged with the
+utmost force. The advocate is not the judge.
+
+"This may be all well, if the advocate let it be so understood. But if
+in pleading he assert his belief that his cause is just when he believes
+it unjust, he offends against truth, as any other man would do who in
+like manner made a like assertion.
+
+"Every man, when he advocates a case in which morality is concerned, has
+an influence upon his hearers, which arises from the belief that he
+shares the moral sentiments of all mankind. This influence of his
+supposed morality is one of his possessions, which, like all his
+possessions, he is bound to use for moral ends. If he mix up his
+character as an advocate with his character as a moral agent, using his
+moral influence for the advocate's purpose, he acts immorally. He makes
+the moral rule subordinate to the professional rule. He sells to his
+client not only his skill and learning, but himself. He makes it the
+supreme object of his life to be not a good man, but a successful
+lawyer.
+
+"There belong to him, moreover, moral ends which regard his profession;
+namely, to make it an institution fitted to promote morality. To raise
+and purify the character of the profession, so that it may answer the
+ends of justice without requiring insincerity in the advocate, is a
+proper end for a good man who is a lawyer; a purpose on which he may
+well and worthily employ his efforts and influence."[19]
+
+Nothing need be added to enforce what has been so well said. The remark,
+however, may be permitted, that the expression of private opinion as to
+the merits of a controversy often puts the counsel at fearful odds. A
+young man, unknown to the court or the jury, is trying his first case
+against a veteran of standing and character: what will the asseveration
+of the former weigh against that of the latter? In proportion, then, to
+the age, experience, maturity of judgment, and professional character of
+the man, who falsely endeavors to impress the court and jury with the
+opinion of his confidence in the justice of his case, in that proportion
+is there danger that injury will be done and wrong inflicted--in that
+proportion is there moral delinquency in him who resorts to it.
+
+Much interest was excited some years ago in England, by the
+circumstances attending the defence of Courvoisier, indicted for the
+murder of Lord William Russell. The crime was one of great atrocity. It
+came out after his conviction, that during the trial he had confessed
+his guilt to his counsel, of whom the eminent barrister Charles
+Phillips, Esq., was one. Mr. Phillips was accused of having endeavored,
+notwithstanding this confession, to fasten suspicion on the other
+servants in the house, to induce the belief that the police had
+conspired with them to manufacture evidence against the prisoner, and to
+impress the jury with his own personal belief in the innocence of his
+client. How far these accusations were just in point of fact was the
+subject of lively discussion in the newspapers and periodicals of the
+time.[20]
+
+The language of counsel, on such occasions, during the excitement of the
+trial, in the fervor of an address to the jury, is not to be calmly and
+nicely scanned in the printed report. The testimony of such a witness as
+Baron Parke, at the time and on the spot,--he, too, aware of the exact
+position of Mr. Phillips--and that confirmed by Chief Justice Tindal,
+is conclusive. To charge him with _acting falsehood_, that is, with
+presenting the case as it appeared upon the testimony, earnestly and
+confidently, means that he did not do that, which would have been worse
+than retiring from his post.
+
+The non-professional, as well as professional public in England,
+however, agreed in saying that he would not have been justified in
+withdrawing from the case: he was still bound to defend the accused upon
+the evidence; though a knowledge of his guilt, from whatever source
+derived, might and ought materially to influence the mode of the
+defence. No right-minded man, professional or otherwise, will contend
+that it would have been right in him to have lent himself to a defence,
+which might have ended, had it been successful, in bringing down an
+unjust suspicion upon an innocent person; or even to stand up and
+falsely pretend a confidence in the truth and justice of his cause,
+which he did not feel. But there were those on this side of the
+Atlantic, who demurred to the conclusion, that an advocate is under a
+moral obligation to maintain the defence of a man who has admitted to
+him his guilt. Men have been known, however, under the influence of some
+delusion, to confess themselves guilty of crimes which they had not
+committed: and hence, to decline acting as counsel in such a case, is a
+dangerous refinement in morals.[21] Nothing seems plainer than the
+proposition, that a person accused of a crime is to be tried and
+convicted, if convicted at all, _upon evidence_, and _whether guilty or
+not guilty_, if the evidence is insufficient to convict him, he has _a
+legal right_ to be acquitted. The tribunal that convicts without
+sufficient evidence may decide according to the fact; but the next jury,
+acting on the same principle, may condemn an innocent man. If this be
+so, is not the prisoner in every case entitled to have the evidence
+carefully sifted, the weak points of the prosecution exposed, the
+reasonable doubts presented which should weigh in his favor? And what
+offence to truth or morality does his advocate commit in discharging
+that duty to the best of his learning and ability? What apology can he
+make for throwing up his brief? The truth he cannot disclose; the law
+seals his lips as to what has thus been communicated to him in
+confidence by his client. He has no alternative, then, but to perform
+his duty. It is his duty, however, as an advocate merely, as Baron Parke
+has well expressed it, to use ALL FAIR ARGUMENTS ARISING ON THE
+EVIDENCE. Beyond that, he is not bound to go in any case; in a case in
+which he is satisfied in his own mind of the guilt of the accused, he is
+not justified in going.
+
+Under all circumstances, the utmost candor should be used towards the
+client. This is imperatively demanded alike by considerations of duty
+and interest. It is much better for a man occasionally to lose a good
+client, than to fail in so plain a matter. It is nothing but selfishness
+that can operate upon a lawyer when consulted to conceal from the party
+his candid opinion of the merits, and the probable result. It is fair
+that he should know it; for he may not choose to employ a man whose
+views may operate to check his resorting to all lawful means to effect
+success. Besides, most men, when they consult an attorney, wish a candid
+opinion; it is what they ask and pay for. It is true, that it is often
+very hard to persuade a man that he has not the best side of a lawsuit:
+his interest blinds his judgment: his passion will not allow him to
+reflect calmly, and give due weight to opposing considerations. There
+are many persons who will go from lawyer to lawyer with a case, until
+they find one who is willing to express an opinion which tallies with
+their own. Such a client the lawyer, who acts firmly upon the principle
+to which I have adverted, will now and then lose; but even such an one,
+when finally unsuccessful, as the great probability is that he will be,
+when he comes to sit down and calculate all that he has lost in time,
+money, and character, by acting contrary to the advice first given, will
+revert to the candid and honest opinion he then received, and determine,
+if ever he gets into another difficulty of the kind, to resort to that
+attorney, and abide by his advice. Thus may a man build up for himself a
+character far outweighing, even in pecuniary value, all such paltry
+particular losses; it is to such men that the best clients resort; they
+have the most important and interesting lawsuits, and enjoy by far the
+most lucrative practice.
+
+A very important part of the advocate's duty is to moderate the passions
+of the party, and where the case is of a character to justify it, to
+encourage an amicable compromise of the controversy. It happens too
+often at the close of a protracted litigation that it is discovered,
+when too late, that the play has not been worth the candle, and that it
+would have been better, calculating everything, for the successful party
+never to have embarked in it--to have paid the claim, if defendant, or
+to have relinquished it, if he was plaintiff. Counsel can very soon
+discover whether such is likely to be the case, and it cannot be doubted
+what their plain duty is under such circumstances.
+
+Besides this, the advocate is bound in honor, as well as duty, to
+disclose to the client at the time of the retainer, every circumstance
+of his own connection with the parties or prior relation to the
+controversy, which can or may influence his determination in the
+selection of him for the office. An attorney is bound to disclose to his
+client every adverse retainer, and even every prior retainer, which may
+affect the discretion of the latter. No man can be supposed to be
+indifferent to the knowledge of facts, which work directly on his
+interests, or bear on the freedom of his choice of counsel. When a
+client employs an attorney, he has a right to presume, if the latter be
+silent on the point, that he has no engagements which interfere, in any
+degree, with his exclusive devotion to the cause confided to him; that
+he has no interest which may betray his judgment or endanger his
+fidelity.[22]
+
+It is in some measure the duty of counsel to be the keeper of the
+conscience of the client; not to suffer him, through the influence of
+his feelings or interest, to do or say anything wrong in itself, and of
+which he would himself afterwards repent. This guardianship may be
+carefully, and at the same time kindly exerted. One particular will be
+mentioned in which its exercise is frequently called for. The client
+will be often required, in the course of a cause, to make affidavits of
+various kinds. There is no part of his business with his client, in
+which a lawyer should be more cautious, or even punctilious, than this.
+He should be careful lest he incur the moral guilt of subornation of
+perjury, if not the legal offence. An attorney may have communications
+with his client in such a way, in instructing him as to what the law
+requires him to state under oath or affirmation, in order to accomplish
+any particular object in view, as to offer an almost irresistible
+temptation and persuasion to stretch the conscience of the affiant up to
+the required point. Instead of drawing affidavits, and permitting them
+to be sworn to as a matter of course, as it is to be feared is too often
+the case, counsel should on all occasions take care to treat an oath
+with great solemnity, as a transaction to be very scrupulously watched,
+because involving great moral peril as well as liability to public
+disgrace and infamy. It lies especially in the way of the profession to
+give a high tone to public sentiment upon this all-important subject,
+the sacredness of an oath. It is always the wisest and best course, to
+have an interview with the client, and draw from him by questions,
+whether he knows the facts which you know he is required to state, so
+that you may judge whether, as a conscientious man, he ought to make
+such affidavit.
+
+Another particular may be adverted to: the attempt to cover property
+from the just demands of creditors. It is to be feared that gentlemen
+of the Bar sometimes shut their eyes and, under the influence of
+feelings of commiseration for an unfortunate client, feign not to see
+what is really very palpable to everybody else. Surely they ought never
+to sanction, directly or indirectly such shams, especially when the
+machinery of a judicial sale is introduced more securely to accomplish
+the object. A purchase is made in the name of a friend for the debtor's
+benefit and with the debtor's money, though it may be hard to make that
+appear by legal evidence. When advice is asked, as it sometimes is, how
+such a thing may be safely and legally done, the idea held prominently
+before the party by his counsel should be, that his estate is the
+property of his creditors, and that nothing but their consent will
+justify an appropriation of any part of it to his benefit.
+
+Lawyers too may very materially assist in giving a high tone to public
+sentiment in the matter of stay and exemption laws. It is not every case
+in which a man has a legal that he has a moral right to claim the
+benefit of such laws. When a debtor with ample means to pay only wants
+to harass and worry his creditor, who has resorted to legal process and
+obtained a judgment, by keeping him out of his money, as it is often
+expressed, as long as he can; or where he wishes to take advantage of
+hard times to make more than legal interest, or with concealed means
+unknown to the execution plaintiff, claims the exemption: these are
+cases which counsel ought to hold up in their proper light to those whom
+they advise, and wash their hands of the responsibility of them.
+According to the Jewish law, the cloak or outer garment, which was
+generally used by the poorer classes as a covering during sleep, could
+not be retained by the creditor to whom it had been given in pledge, and
+of course was exempt by law from seizure for debt; and our blessed
+Saviour, in his sermon on the mount, has been supposed to refer to this
+exemption law, when he said: "And if any man will sue thee at the law
+and take away thy coat, let him have thy cloak also;" that is, confine
+not yourself in your transactions with your fellow-men to giving them
+simply the strict measure of their legal rights: give them all that is
+honestly theirs as far as you have ability, whether the law affords them
+a remedy or not. There have been some noble instances of bankrupts who,
+upon subsequently retrieving their fortunes, have fully discharged all
+their old debts, principal and interest, though released or barred by
+the Statute of Limitations; but such instances would be more common if
+the spirit of the high and pure morality, which breathes through the
+sermon on the mount, prevailed more extensively.
+
+An important clause in the official oath is "to delay no man's cause for
+lucre or malice." It refers, no doubt, primarily, to the cause intrusted
+to the attorney, and prohibits him from resorting to such means for the
+purpose of procuring more fees, or of indulging any feeling he may have
+against his client personally. Such conduct would be a clear case of a
+violation of the oath. But it is a question, also, whether the case
+generally, in which he is retained, is not comprehended.[23] How far,
+then, can he safely go in delaying the cause for the benefit of, and in
+pursuance of the instructions of his client? A man comes to him and
+says: "I have no defence to this claim; it is just and due, but I have
+not the means to pay it; I want all the time you can get for me." The
+best plan in such instances, is, no doubt, at once frankly to address
+his opponent, and he will generally be willing to grant all the delay
+which he knows, in the ordinary course can be gained, and perhaps more,
+as a consideration for his own time and trouble saved. If, however, that
+be impracticable, it would seem that the suitor has a right to all the
+delay, which is incident to the ordinary course of justice. The counsel
+may take all means for this purpose, which do not involve artifice or
+falsehood in himself or the party. The formal pleas put in are not to be
+considered as false in this aspect, except such as are required to be
+sustained by oath. In an ejectment, for example, an appearance need not
+be entered until the second term, the legislature having seen fit to
+give that much respite to the unjust possessor of real estate. But to
+stand by and see a client swear off a case on account of the absence of
+a material witness, when he knows that no witness can be material; or
+further to make affidavit that his appeal or writ of error is not
+intended for delay, when he knows that it is intended for nothing else,
+no high-minded man will be privy or consent to such actions, much less
+have any active participation in them.
+
+Subject, however, to the qualifications which have been stated, when a
+cause is undertaken, the great duty which the counsel owes to his
+client, is an immovable fidelity. Every consideration should induce an
+honest and honorable man to regard himself, as far as the cause is
+concerned, as completely identified with his client. The criminal and
+disgraceful offence of taking fees of two adversaries, of allowing
+himself to be approached corruptly, whether directly or indirectly, with
+a view to conciliation, ought, like parricide in the Athenian law, to be
+passed over in silence in a code of professional ethics.[24] All
+considerations of self should be sunk by the lawyer in his duty to the
+cause. The adversary may be a man of station, wealth, and influence; his
+good will may be highly valuable to him; his enmity may do him great
+injury. He should not permit such thoughts to arise in his mind. He
+should do his duty manfully, without fear, favor, or affection.
+
+At the same time, let it be observed, that no man ought to allow himself
+to be hired to abuse the opposite party. It is not a desirable
+professional reputation to live and die with, that of a rough tongue,
+which makes a man to be sought out, and retained to gratify the
+malevolent feelings of a suitor in hearing the other side well lashed
+and vilified. An opponent should always be treated with civility and
+courtesy, and if it be necessary to say severe things of him or his
+witnesses, let it be done in the language, and with the bearing, of a
+gentleman. There is no point in which it becomes an advocate to be more
+cautious, than in his treatment of the witnesses. In general, fierce
+assaults upon them, unnecessary trifling with their feelings, rough and
+uncivil behavior towards them in cross-examination, whilst it may
+sometimes exasperate them to such a pitch, that they will perjure
+themselves in the drunkenness of their passion, still, most generally
+tells badly on the jury. They are apt to sympathize with a witness under
+such circumstances.[25] It is as well unwise as unprofessional, in
+counsel, to accuse a witness of having forsworn himself, unless some
+good ground, other than the mere instruction of the client, is present
+in the evidence to justify it. He may sift most searchingly, and yet
+with a manner and courtesy which affords no ground for irritation,
+either in witness or opponent; and in such case, if his questions
+produce irritation, it is a circumstance which will weigh in his favor.
+
+The practitioner owes to his client, with unshaken fidelity, the
+exertion of all the industry and application of which he is capable to
+become perfect master of the questions at issue, to look at them in all
+their bearings, to place himself in the opposite interest, and to
+consider and be prepared as far as possible, for all that may be said or
+done on the contrary part. The duty of full and constant preparation, is
+too evident to require much elaboration. It is better, whenever it is
+possible to do so, to make this examination immediately upon the
+retainer, and not to postpone it to later stages in the proceedings. The
+opportunity is often lost, of ascertaining facts, and securing evidence,
+from putting off till too late, the business of understanding thoroughly
+all that it will be necessary to adduce on the trial. In this way, a
+lawyer will attain what is very important, that his client may be always
+prepared, as well as himself, have his attention alive to his case, know
+what witnesses are important, and keep a watch upon them, so that their
+testimony may not be lost, and upon the movements of his adversary, lest
+he should at any time be taken by surprise. It would be an excellent
+rule for him, at short stated periods, to make an examination of the
+record of every case which he has under his charge. It always operates
+disadvantageously to an attorney in the eyes of those who employ him, as
+well as the public, when he fails in consequence of some neglect or
+oversight. Frequent applications to the court, to relieve him from the
+consequences of his inattention, tell badly on his character and
+business. He may be able to make very plausible excuses; but the public
+take notice, that some men with large business never have occasion to
+make such excuses, and that other men with less, are constantly making
+them. Every instance of the kind helps to make up such a character. A
+young man should be particularly cautious, and dread such occurrences as
+highly injurious to his prospects. If he escapes the notice and
+animadversion of his constituent, and the legal consequences of his
+neglect, by the intervention of the court, or the indulgence of his
+opponent, the members of the Bar are lynx-eyed in observing such things.
+
+It may appear like digressing from our subject, to speak of such
+qualities as attention, accuracy, and punctuality, but like the minor
+morals of common life, they are little rills which at times unite and
+form great rivers. A life of dishonor and obscurity, if not ignominy,
+has often taken its rise from the fountain of a little habit of
+inattention and procrastination. System is everything. It can accomplish
+wonders. By this alone, as by a magic talisman, may time be so
+economized that business can be attended to and opportunities saved for
+study, general reading, exercise, recreation, and society. "A man that
+is young in years," says Lord Bacon, "may be old in hours, if he has
+lost no time." Hurry and confusion result from the want of system; and
+the mind can never be clear when a man's papers and business are in
+disorder. It is recorded of the pensionary De Witt, of the United
+Provinces, who fell a victim to the fury of the populace in the year
+1672, that he did the whole business of the republic, and yet had time
+left for relaxation and study in the evenings. When he was asked how he
+could possibly bring this to pass, his answer was, that "nothing was so
+easy; for that it was only doing one thing at a time, and never putting
+off anything till to-morrow that could he done to-day." "This steady and
+undissipated attention to one object," remarks Lord Chesterfield, in
+relating this anecdote, "is a sure mark of a superior genius." It is of
+the highest importance, also, that a lawyer should in early professional
+life, cultivate the habit of accuracy. It is a great advantage over
+opposing counsel,--a great recommendation in the eyes of intelligent
+mercantile and business men. A professional note to a merchant
+carelessly written will often of itself produce an unfavorable
+impression on his mind; and that impression he may communicate to many
+others. The importance of a good handwriting cannot be overrated. A
+plain legible hand every man can write who chooses to take the pains. A
+good handwriting is a passport to the favor of clients, and to the good
+graces of judges, when papers come to be submitted to them. It would be
+a good rule for a young lawyer, though at first perhaps irksome and
+inconvenient, never to suffer a letter or paper to pass from his hands
+with an erasure or interlineation. The time and trouble it may cost at
+the outset will be repaid in the end by the habit he will thereby
+acquire of transacting his business with care, neatness, and accuracy.
+
+He cannot be faithful to his clients unless he continues to be a hard
+student of the learning of his profession. Not merely that he should
+thoroughly investigate the law applicable to every case which may be
+intrusted to him; though that, besides its paramount necessity to enable
+him to meet the responsibility he has assumed to that particular client,
+will be the subsidiary means of important progress in his professional
+acquisitions. "Let any person," says Mr. Preston, "study one or two
+heads of the law fully and minutely, and he will have laid the
+foundation or acquired the aptitude for comprehending other heads of
+the law."[26] But, besides this, he should pursue the systematic study
+of his profession upon some well-matured plan. When admitted to the Bar,
+a young man has but just begun, not finished, his legal education. If he
+have mastered some of the most general elementary principles, and has
+acquired a taste for the study, it is as much as can be expected from
+his clerkship. There are few young men who come to the Bar, who cannot
+find ample time in the first five or seven years of their novitiate, to
+devote to a complete acquisition of the science they profess, if they
+truly feel the need of it, and resolve to attain it. The danger is great
+that from a faulty preparation,--from not being made to see and
+appreciate the depth, extent, and variety of the knowledge they are to
+seek, they will mistake the smattering they have acquired for profound
+attainments. The anxiety of the young lawyer is a natural one at once to
+get business--as much business as he can. Throwing aside his books, he
+resorts to the many means at hand of gaining notoriety and attracting
+public attention, with a view of bringing clients to his office. Such an
+one in time never fails to learn much by his mistakes, but at a sad
+expense of character, feeling, and conscience. He at last finds that in
+law, as in every branch of knowledge, "a little learning is a dangerous
+thing;" that what he does not know falsifies often in its actual
+application that which he supposed he certainly did know; and after the
+most valuable portion of his life has been frittered away upon objects
+unworthy of his ambition, he is too apt to conclude that it is now too
+late to redeem his time; he finds that he has lost all relish for
+systematic study, and when he is driven to the investigation of
+particular questions, is confounded and embarrassed--unable to thread
+his way through the mazes of authorities, to reconcile apparently
+conflicting cases, or deduce any satisfactory conclusion from them--in
+short, he has no greater aptitude, accuracy, and discrimination than
+when he set out in the beginning of his studies. No better advice can
+be given to a young practitioner, than to confine himself generally to
+his office and books, even if this should require self-denial and
+privation, to map out for himself a course of regular studies, more or
+less extended, according to circumstances, to aim at mastering the works
+of the great luminaries of the science, Coke, Fearne, Preston, Powell,
+Sugden, and others, not forgetting the maxim, _melius est petere fontes
+quam sectari rivulos_, and to investigate for himself the most important
+and interesting questions, by an examination and research of the
+original authorities. "He that reacheth deepest seeth the amiable and
+admirable, secrets of the law,"[27] and thus may the student "proceed in
+his reading with alacrity, and set upon and know how to work into with
+delight these rough mines of hidden treasure."[28]
+
+It may be allowed here to commend to most serious consideration, the
+remarks of one of the most eminent of the profession--Horace Binney--a
+gentleman of our own Bar, whose example enforces and illustrates their
+value: "There are two very different methods of acquiring a knowledge of
+the laws of England, and by each of them, men have succeeded in public
+estimation to an almost equal extent. One of them, which may be called
+the old way, is a methodical study of the general system of law, and of
+its grounds and reasons, beginning with the fundamental law of estates
+and tenures, and pursuing the derivative branches in logical succession,
+and the collateral subjects in due order; by which the student acquires
+a knowledge of principles that rule in all departments of the science,
+and learns to feel as much as to know what is in harmony with the system
+and what not. The other is, to get an outline of the system, by the aid
+of commentaries, and to fill it up by the desultory reading of treatises
+and reports, according to the bent of the student, without much shape or
+certainty in the knowledge so acquired, until it is given by
+investigation in the course of practice. A good deal of law may be put
+together by a facile or flexible man, in the second of these modes, and
+the public are often satisfied; but the profession itself knows the
+first, by its fruits, to be the most effectual way of making a great
+lawyer."[29]
+
+Such a course of study as is here recommended, is not the work of a day
+or a year. In the meantime let business seek the young attorney; and
+though it may come in slowly, and at intervals, and promise in its
+character neither fame nor profit, still, if he bears in mind that it is
+an important part of his training, that he should understand the
+business he does thoroughly, that he should especially cultivate, in
+transacting it, habits of neatness, accuracy, punctuality, and despatch,
+candor towards his client, and strict honor towards his adversary, it
+may be safely prophesied that his business will grow as fast as it is
+good for him that it should grow; while he gradually becomes able to
+sustain the largest practice, without being bewildered and overwhelmed.
+
+Let him be careful, however, not to settle down into a mere lawyer. To
+reach the highest walks of the profession, something more is needed. Let
+polite literature be cultivated in hours of relaxation. Let him lose not
+his acquaintance with the models of ancient taste and eloquence. He
+should study languages, as well from their practical utility in a
+country so full of foreigners, as from the mental discipline, and the
+rich stores they furnish. He should cultivate a pleasing style, and an
+easy and graceful address. It may be true, that in a "court of justice,
+the veriest dolt that ever stammered a sentence, would be more attended
+to, with a case in point, than Cicero with all his eloquence,
+unsupported by authorities,"[30] yet even an argument on a dry point of
+law, produces a better impression, secures a more attentive auditor in
+the judge, when it is constructed and put together with attention to the
+rules of the rhetorical art; when it is delivered, not stammeringly, but
+fluently; when facts and principles, drawn from other fields of
+knowledge, are invoked to support and adorn it; when voice, and gesture,
+and animation, give it all that attraction which earnestness always and
+alone imparts. There is great danger that law reading, pursued to the
+exclusion of everything else, will cramp and dwarf the mind, shackle it
+by the technicalities with which it has become so familiar, and disable
+it from taking enlarged and comprehensive views even of topics falling
+within its compass as well as of those lying beyond its legitimate
+domain. An amusing instance of this is said to have occurred in the
+debate in the House of Commons, on the great question as to the right of
+the Parliament of Great Britain to tax the Colonies. At the close of the
+discussion, in which Fox and Burke, as well as others, had distinguished
+themselves, a learned lawyer arose and said that the real point on which
+the whole matter turned, had been unaccountably overlooked. In the midst
+of deep silence and anxious expectation from all quarters of the House,
+he proceeded to show that the lands of the Colonies had been originally
+granted by the Crown, and were held _ut de honore_, as of the Manor of
+Greenwich, in the county of Kent; and thence he concluded that as the
+Manor of Greenwich was represented in Parliament, so the lands of the
+North American Colonies (by tenure, a part of the Manor) were
+represented by the knights of the shire for Kent.[31]
+
+Let me remark, too, before hastening to another topic more immediately
+connected with the duties of active professional life, that the
+cultivation of a taste for polite literature has other importance
+besides its value as a preparation and qualification for practice and
+forensic contests. Nothing is so well adapted to fill up the interstices
+of business with rational enjoyment, to make even a solitary life
+agreeable, and to smooth pleasantly and honorably the downward path of
+age. The mental vigor of one who is fond of reading, other things being
+equal, becomes impaired at a much later period of life. The lover of
+books has faithful companions and friends, who will never forsake him
+under the most adverse circumstances. "As soon as I found," said Sir
+Samuel Romilly, "that I was to be a busy lawyer for life, I strenuously
+resolved to keep up my habit of non-professional reading; for I had
+witnessed so much misery in the last years of many great lawyers, whom I
+had known, from their loss of all taste for books, that I regarded their
+fate as my warning." Mr. Gibbon was wont to say that he would not
+exchange his love of reading for the wealth of the Indies. It is indeed
+a fortune, of which the world's reverses can never deprive us. It
+fortifies the soul against the calamities of life. It moderates, if it
+is not strong enough to govern and control the passions. It favors not
+the association of the cup, the dice-box, or the debauch. The atmosphere
+of a library is uncongenial with them. It clings to home, nourishes the
+domestic affections, and the hopes and consolations of religion.
+
+Another very delicate and often embarrassing question in the relation of
+attorney and client is in regard to the subject of compensation for
+professional services.
+
+In all countries advanced in civilization, and whose laws and manners
+have attained any degree of refinement, there has arisen an order of
+advocates devoted to prosecuting or defending the lawsuits of others.
+Before the tribunals of Athens, although the party pleaded his own
+cause, it was usual to have the oration prepared by one of an order of
+men devoted to this business, and to compensate him liberally for his
+skill and learning. Many of the orations of Isocrates, which have been
+handed down to us, are but private pleadings of this character. He is
+said to have received one fee of twenty talents, about eighteen
+thousand dollars of our money, for a speech that he wrote for Nicocles,
+king of Cyprus. Still, from all that appears, the compensation thus
+received was honorary or gratuitous merely. Among the early institutions
+of Rome, the relation of patron and client, which existed between the
+patrician and plebeian, bound the former to render the latter assistance
+and protection in his lawsuits, with no other return than the general
+duty, which the client owed to his patron. As every patrician could not
+be a sufficiently profound lawyer to resolve all difficulties, which
+might arise in the progress of a complex system of government and laws,
+though he still might accomplish himself in the art of eloquence, there
+arose soon a new order of men, the jurisconsults. They also received no
+compensation. On the public days of market, or assembly, the masters of
+the art were seen walking in the forum, ready to impart the needful
+advice to the meanest of their fellow-citizens, from whose votes on a
+future occasion, they might solicit a grateful return. As their years
+and honors increased, they seated themselves at home, on a chair or
+throne, to expect with patient gravity the visits of their clients, who
+at the dawn of day, from the town and country, began to thunder at their
+doors.[32] Often, indeed, the patron was able in his own person to
+exercise the office both of advocate and counsellor. It was only in the
+more glorious, because the more virtuous, period of the republic, that
+the relation was sustained upon so honorable a foundation. In the
+progress of society, the business of advocating causes became a distinct
+profession; and then it was usual to pay a fee in advance, which was
+called a gratuity or present. As this was a mere honorary recompense,
+the client was under no legal obligation to pay it. But the result
+necessarily was, that if the usual present was not given, the advocate
+did not consider himself bound in honor to undertake the advocation of
+the cause before the courts. Afterwards, Marcus Cincius Alimentus, the
+tribune of the people, procured the passage of the law known as the
+_Cincian_ law, prohibiting the patron or advocate from receiving any
+money or other present for any cause; and annulling all gratuities or
+presents made by the client to the patron or advocate. But as no penalty
+was prescribed for the breach of the law, it of course became a dead
+letter. The Emperor Augustus afterwards re-enacted the Cincian law, and
+prescribed penalties for its breach. But towards the end of his reign,
+the advocates were again authorized to receive fees or presents from
+their clients. The Emperor Tiberius also permitted them to receive such
+forced gratuities. This led to the abuse referred to by Tacitus, and
+induced the Senate to insist upon the enforcement of the re-enactment of
+the Cincian law, or rather a law limiting the amount of the fees of
+advocates.[33] Nero revoked the law of Claudian, which was subsequently
+re-enacted by the Emperor Trajan, with the additional restriction that
+the advocate should not be permitted to receive his fee or gratuity,
+until the cause was decided. The younger Pliny mentions a law, which
+authorized the advocate, after the pleadings in the cause had been made
+and the judgment had been given, to receive the fee, which might be
+voluntarily offered by the client, either in money or a promise to pay.
+Erskine, in his Institutes of the Law of Scotland, understands the law
+in the Digest _De Extraordinariis Cognitionibus_ as authorizing a suit
+for the fee of a physician or advocate without a previous agreement for
+a specific sum.[34]
+
+The consequences may be best told in the impressive language of the
+historian of the Decline and Fall of the Empire: "The noble art, which
+had once been preserved as the sacred inheritance of the patricians, was
+fallen into the hands of freedmen and plebeians, who, with cunning
+rather than with skill, exercised a sordid and pernicious trade. Some of
+them procured admittance into families for the purpose of fomenting
+differences, of encouraging suits, and of preparing a harvest of gain
+for themselves or their brethren. Others, recluse in their chambers,
+maintained the dignity of legal professors, by furnishing a rich client
+with subtleties to confound the plainest truth, and with arguments to
+color the most unjustifiable pretensions. The splendid and popular class
+was composed of the advocates, who filled the Forum with the sound of
+their turgid and loquacious rhetoric. Careless of fame and of justice,
+they are described for the most part, as ignorant and rapacious guides,
+who conducted their clients through a maze of expense, of delay, and of
+disappointment; from whence, after a tedious series of years, they were
+at length dismissed when their patience and fortune were almost
+exhausted."[35] Is not this probably the history of the decline of the
+profession in all countries from an honorable office to a money-making
+trade?
+
+It is the established law of England, that a counsellor or barrister
+cannot maintain a suit for his fees.[36] There is in that country a
+class of mere attorneys, who attend to legal business out of court, who
+bring suits and conduct them up to issue; but who are not allowed to
+speak in court. This latter privilege is confined to serjeants and
+barristers. Attorneys are regulated by statute, and are subject to many
+restrictions; having a rate of fees, settled either by statute or
+established usage; and required to be fixed by the taxation of an
+officer of the court before a suit can be brought for them. Barristers
+are admitted only under the regulations established by the various inns
+of court; and the serjeants, who long had the monopoly of the Bar of the
+Common Pleas, are appointed by patent from the king. A barrister cannot
+be an attorney.[37]
+
+In this country, there is in general no distinction between attorneys
+and counsellors. The same persons fulfil the duties of both. Hence no
+difference is made between their right to recover compensation for
+services in the one capacity or the other.[38] In Pennsylvania, it was
+held at one time that an attorney could not recover, without an express
+promise, anything beyond the trifling and totally inadequate sum
+provided in the fee-bill. That pure and eminent jurist Chief Justice
+Tilghman thought that the policy of refusing a legal remedy for anything
+beyond that had not been adopted without great consideration.[39] He
+stands not alone in the opinion that it has been neither for the honor
+nor profit of the Bar to depart from the ancient rule.[40] It has been
+departed from in this State, and the early decision overruled, however;
+and it must be frankly admitted, that the current of decisions in our
+sister States is in the same way.[41]
+
+It is supposed that the ancient rule was artificial in its structure,
+and practically unjust,--that it is wholly inconsistent with our ideas
+of equality to suppose that the business or profession, by which any one
+earns the daily bread of himself or of his family, is so much more
+honorable than the business of other members of the community as to
+prevent him from receiving a fair compensation for his services on that
+account.[42] It has been pronounced ridiculous to attempt to perpetuate
+a monstrous legal fiction, by which the hard-working lawyers of our day,
+toiling till midnight in their offices, are to be regarded in the eye of
+the law in the light of the patrician jurisconsults of ancient Rome,
+when
+
+      ---- dulce diu fuit et solemne, reclusa
+    Mane domo vigilare, clienti promere jura,--
+
+and who at daybreak received the early visits of their humble and
+dependent clients, and pronounced with mysterious brevity the oracles of
+the law.[43]
+
+These are arguments which are more plausible than sound: they are
+imposing, but not solid. The question really is, what is best for the
+people at large,--what will be most likely to secure them a high-minded,
+honorable Bar? It is all-important that the profession should have and
+deserve that character. A horde of pettifogging, barratrous,
+custom-seeking, money-making lawyers, is one of the greatest curses
+with which any state or community can be visited. What more likely to
+bring about such a result than a decision, which strips the Bar of its
+character as a learned profession, on the principle avowed by one court,
+that it is now a calling as much as any mechanical art,--or by another,
+in effect, that the order of things is in the present condition of
+society reversed, and clients are really the _patrons_ of their
+attorneys? A more plausible reason is that the client is safer from the
+oppression of extortionate counsel, by putting both upon the equal
+footing of legal right and obligation. It would appear, however, better
+that the parties should make an express agreement before or at the time
+of retainer, or that the amount should be left to the justice of the
+counsel, and the honor and liberality of the client subsequently. Every
+judge, who has ever tried a case between attorney and client, has felt
+the delicacy and difficulty of saying what is the measure of just
+compensation. It is to be graduated, according to a high legal
+authority, with a proper reference to the nature of the business
+performed by the counsel for the client, and his standing in his
+profession for learning and skill; whereby the value of his services is
+enhanced to his client.[44] Is then the standing and character of the
+counsel in his profession for learning and skill to be a question of
+fact to be determined by the jury in every case in which a lawyer sues
+his client? How determined, if necessary to the decision of the
+question? Not surely by the crude opinions of the jurors; but by
+testimony of members of the same profession on the subject. This never
+is done; it would be a very difficult as well as delicate question for a
+lawyer to pronounce upon the standing of a professional brother. The
+most that can be done is to call gentlemen to say what they would have
+considered reasonable for such services, had they been performed by
+themselves. Some may testify up to a very high point, from an excusable,
+though foolish vanity; others to a very low one, from the despicable,
+desire of attracting custom to a cheap shop.[45] No one can ever have
+seen such a cause tried without feeling, that the Bar had received by it
+an impulse downwards in the eyes of bystanders and the community. The
+case is thrown into the jury-box, to be decided at haphazard, according
+as the twelve men may chance to think or feel. He, who narrowly watches
+such controversies, cannot fail to see that the right of a counsel to
+enforce his claim for legal compensation is far from being calculated to
+protect the client from oppression and extortion.
+
+It is not worth while, however, to quarrel with the decision. Let us
+inquire rather what should be the course of counsel, without regard to
+it. He certainly owes it to his profession, as well as himself, that
+when the client has the ability, his services should be recompensed; and
+that according to a liberal standard.[46] There are many cases, in which
+it will be his duty, perhaps more properly his privilege, to work for
+nothing. It is to be hoped, that the time will never come, at this or
+any other Bar in this country, when a poor man with an honest cause,
+though without a fee, cannot obtain the services of honorable counsel,
+in the prosecution or defence of his rights. But it must be an
+extraordinary--a very peculiar case--that will justify an attorney in
+resorting to legal proceedings, to enforce the payment of fees. It is
+better that he should be a loser, than have a public contest upon the
+subject with a client. The enlightened Bar of Paris, have justly
+considered the character of their order involved in such proceedings;
+and although by the law of France, an advocate may recover for his fees
+by suit, yet they regard it as dishonorable, and those who should
+attempt to do it, would be immediately stricken from the roll of
+attorneys.[47]
+
+Regard should be had to the general usage of the profession, especially
+as to the rates of commission to be charged for the collection of
+undefended claims. Except in this class of cases, agreements between
+counsel and client that the compensation of the former shall depend upon
+final success in the lawsuit--in other words contingent fees--however
+common such agreements may be, are of a very dangerous tendency, and to
+be declined in all ordinary cases. In making his charge, after the
+business committed to him has been completed, as an attorney may well
+take into consideration the general ability of his client to pay, so he
+may also consider the pecuniary benefit, which may have been derived
+from his services. For a poor man, who is unable to pay at all, there
+may be a general understanding that the attorney is to be liberally
+compensated in case of success. What is objected to, is an agreement to
+receive a certain part or proportion of the sum, or subject-matter, in
+the event of a recovery, and nothing otherwise.
+
+It is unnecessary to inquire here whether such a contract is void as
+champertous, and contrary to public policy. None of the English statutes
+on the subject of champerty have been reported as in force here; but it
+was once a question whether it was not an offence at common law,
+independently altogether, of any statute enactment. Enlightened judges
+in several of our sister States have so considered it. "The purchase of
+a lawsuit," says Chancellor Kent, "by an attorney, is champerty in its
+most odious form; and it ought equally to be condemned on principles of
+public policy. It would lead to fraud, oppression, and corruption. As a
+sworn minister of the courts of justice, the attorney ought not to be
+permitted to avail himself of the knowledge he acquires in his
+professional character, to speculate in lawsuits. The precedent would
+tend to corrupt the profession, and produce lasting mischief to the
+community."[48] "This is not the time nor place," says Chief Justice
+Gibson, "to discuss the legality of contingent fees; though it be clear
+that if the British statutes of champerty were in force here, such fees
+would be prohibited by them. But a contract of the sort is certainly not
+to be encouraged by implication, from a questionable usage, nor
+established by less than a positive stipulation."[49] A contract to
+allow a compensation for services in procuring the passage of a private
+Act of Assembly, has been held to be unlawful and void, as against
+public policy.[50] "The practice," said Judge Rogers, in delivering the
+opinion of the court, "which has generally obtained in this State, to
+allow a contingent compensation for legal services, has been a subject
+of regret; nor am I aware of any direct decision by which the practice
+has received judicial sanction in our courts." The case of _Ex parte
+Plitt_,[51] however, recognizes fully the lawfulness of contingent fees,
+though in his opinion Judge Kane says: "It is not a practice to be
+generally commended, exposing honorable men not unfrequently to
+misapprehension and illiberal remark, and giving the apparent sanction
+of their example to conduct, which they would be among the foremost to
+reprehend. Such contracts may sometimes be necessary in a community such
+as that of Pennsylvania has been, and perhaps as it is yet; and when
+they have been made in abundant good faith--_uberrima fide_--without
+suppression or reserve of fact or exaggeration of apprehended
+difficulties, or under influence of any sort or degree; and when the
+compensation bargained for is absolutely just and fair, so that the
+transaction is characterized throughout by 'all good fidelity to the
+client,' the court will hold such contracts to be valid. But it is
+unnecessary to say, that such contracts, as they can scarcely be
+excepted from the general rule, which denounces as suspicious the
+dealings of fiduciaries with those under their protection, must undergo
+the most exact and jealous scrutiny before they can expect the judicial
+ratification." Finally, the question of law may be considered as at rest
+in Pennsylvania by the decision of the Supreme Court in Patten _v._
+Wilson,[52] which recognized an agreement between counsel and client to
+pay him out of the verdict as an equitable assignment, and gave effect
+to it as against an attaching creditor.
+
+It is not, however, with the lawfulness, but with the policy and
+morality of the practice, that we are now dealing. Admitting its
+legality, is it consistent with that high standard of moral excellence,
+which the members of this profession should ever propose to themselves?
+
+Let us look at what would be the results of such a practice, if it
+became general. If these are bad, if its tendency is to corrupt and
+degrade the character of the profession, then, however confident any man
+may feel in his moral power to ward off its evil influences from his own
+character and conduct, he should be careful not to encourage and give
+countenance to it by his example.
+
+It is one of that class of actions, which in particular instances may be
+indifferent; but their morality is to be tested by considering what
+would be the consequences of their general prevalence.
+
+It is to be observed, then, that such a contract changes entirely the
+relation of counsel, to the cause. It reduces him from his high position
+of an officer of the court and a minister of justice, to that of a party
+litigating his own claim. Having now a deep personal interest in the
+event of the controversy, he will cease to consider himself subject to
+the ordinary rules of professional conduct. He is tempted to make
+success, at all hazards and by all means, the sole end of his exertions.
+He becomes blind to the merits of the case, and would find it difficult
+to persuade himself, no matter what state of facts might be developed in
+the progress of the proceedings, as to the true character of the
+transaction, that it was his duty to retire from it.
+
+It places his client and himself in a new and dangerous relation. They
+are no longer attorney and client, but partners. He has now an interest,
+which gives him a right to speak as principal, not merely to advise as
+to the law, and abide by instructions. It is either unfair to him or
+unfair to the client. If he thinks the result doubtful, he throws all
+his time, learning, and skill away upon what, in his estimation, is an
+uncertain chance. He cannot work with the proper spirit in such a case.
+If he believes that the result will be success, he secures in this way a
+higher compensation than he is justly entitled to receive.
+
+It is an undue encouragement to litigation. Men, who would not think of
+entering on a lawsuit, if they knew that they must compensate their
+lawyer whether they win or lose, are ready upon such a contingent
+agreement to try their chances with any kind of a claim. It makes the
+law more of a lottery than it is.
+
+The worst consequence is yet to be told,--its effect upon, professional
+character. It turns lawyers into higglers with their clients. Of course
+it is not meant that these are always its actual results; but they are
+its inevitable tendencies,--in many instances its practical working. To
+drive a favorable bargain with the suitor in the first place, the
+difficulties of the case are magnified and multiplied, and advantage
+taken of that very confidence, which led him to intrust his interests to
+the protection of the advocate.[53] The parties are necessarily not on
+an equal footing in making such a bargain. A high sense of honor may
+prevent counsel from abusing his position and knowledge; but all have
+not such high and nice sense of honor. If our example goes towards
+making the practice of agreements for contingent fees general, we assist
+in placing such temptations in the way of our professional brethren of
+all degrees--the young, the inexperienced, and the unwary, as well as
+those whose age and experience have taught them that a lawyer's honor is
+his brightest jewel, and to be guarded from being sullied, even by the
+breath of suspicion, with the most sedulous care.
+
+A gentleman of the largest experience and highest character for
+integrity and learning at the Philadelphia Bar, thus strongly confirms
+the views which have been here expressed on the subject of contingent
+fees: "And further," says Mr. Price in his concluding advice to
+students, at the close of his Essay on Limitation and Lien, "permit me
+to advise and earnestly to admonish you, for the preservation of
+professional honor and integrity, to avoid the temptation of bargaining
+for fees or shares of any estate or other claim, contingent upon a
+successful recovery. The practice directly leads to a disturbance of the
+peace of society and to an infidelity to the professional obligation
+promised to the court, in which is implied an absence of desire or
+effort of one in the ministry of the Temple of Justice, to obtain a
+success that is not just as well as lawful. It is true, as a just
+equivalent for many cases honorably advocated and incompetently paid by
+the poor, a compensation may and will be received, the more liberal
+because of the ability produced by success; but let it be the result of
+no bargain, exacted as a price before the service is rendered, but
+rather the grateful return for benefits already conferred. If rigid in
+your terms, in protection of the right of the profession to a just and
+honorable compensation, let it rather be in the amount of the required
+retainer, when it will have its proper influence in the discouragement
+of litigation."
+
+A lawyer should avoid, as far as possible, all transactions of business
+with his clients, not only in regard to matters in suit in his hands,
+but in relation to other matters. He should avoid standing toward them,
+either in the relation of borrower or lender. A young practitioner
+should especially avoid borrowing of any one. Let him retrench, seek the
+humblest employment of drudgery rather than do it; but, if borrow he
+must, let it be of any one else than a client. All transactions of
+business between attorney and client are looked upon with eyes of
+suspicion and disfavor, in courts of justice.
+
+It is a settled doctrine of equity, in England, that an attorney cannot,
+while the business is unfinished in which he had been employed, receive
+any gift from his client, or bind his client in any mode to make him
+greater compensation for his services than he would have a right to
+demand if no contract should be made during the relation. If an attorney
+accept a gift from one thus connected with him, it may be recovered in a
+court of chancery, by the donor or his creditors, should it be necessary
+for them to assert a right to it to satisfy their demands. When the
+relation of solicitor and client exists, and a security is taken by the
+solicitor from his client, the presumption is that the transaction is
+unfair; and the onus of proving its fairness is upon the solicitor.[54]
+A man ought to be very careful of placing himself in a position to have
+any of his transactions regarded in that light. If it should ever come
+to be canvassed in court, the bandying of the phrases, fraud and
+presumption of fraud, as applied to him, may, and probably will, have an
+unfavorable effect on his reputation. Most emphatically should it be
+said, let nothing tempt him, not even the knowledge and consent of the
+client, to keep the money, which may have come to his hands
+professionally, one single instant longer than is absolutely necessary.
+The consequences of any difficulty arising upon this head, will be fatal
+to his professional character and prospects.
+
+The official oath, to which reference has already more than once been
+made, obliges the attorney "to use no falsehood." It seems scarcely
+necessary to enforce this topic. Truth in all its simplicity--truth to
+the court, client, and adversary--should be indeed the polar star of the
+lawyer. The influence of only slight deviations from truth, upon
+professional character, is very observable. A man may as well be
+detected in a great as a little lie. A single discovery, among
+professional brethren, of a failure of truthfulness, makes a man the
+object of distrust, subjects him to constant mortification, and soon
+this want of confidence extends itself beyond the Bar to those who
+employ the Bar. That lawyer's case is truly pitiable, upon the
+escutcheon of whose honesty or truth, rests the slightest tarnish.
+
+Let it be remembered and treasured in the heart of every student, that
+no man can ever be a truly great lawyer, who is not in every sense of
+the word, a good man. A lawyer, without the most sterling integrity, may
+shine for a while with meteoric splendor; but his light will soon go out
+in blackness of darkness. It is not in every man's power to rise to
+eminence by distinguished abilities. It is in every man's power, with
+few exceptions, to attain respectability, competence, and usefulness.
+The temptations which beset a young man in the outset of his
+professional life, especially if he is in absolute dependence upon
+business for his subsistence, are very great. The strictest principles
+of integrity and honor, are his only safety. Let him begin by swerving
+from truth or fairness, in small particulars, he will find his character
+gone--whispered away, before he knows it. Such an one may not indeed be
+irrecoverably lost; but it will be years before he will be able to
+regain a firm foothold. There is no profession, in which moral character
+is so soon fixed, as in that of the law; there is none in which it is
+subjected to severer scrutiny by the public. It is well, that it is so.
+The things we hold dearest on earth,--our fortunes, reputations,
+domestic peace, the future of those dearest to us, nay, our liberty and
+life itself, we confide to the integrity of our legal counsellors and
+advocates. Their character must be not only without a stain, but without
+suspicion. From the very commencement of a lawyer's career, let him
+cultivate, above all things, truth, simplicity, and candor: they are the
+cardinal virtues of a lawyer. Let him always seek to have a clear
+understanding of his object: be sure it is honest and right, and then
+march directly to it. The covert, indirect, and insidious way of doing
+anything, is always the wrong way. It gradually hardens the moral
+faculties, renders obtuse the perception of right and wrong in human
+actions, weighs everything in the balances of worldly policy, and ends
+most generally, in the practical adoption of the vile maxim, "that the
+end sanctifies the means." If it be true, as he has said, who, more than
+any mere man, before or since his day, understood the depths of human
+character, that one even may,
+
+                  "By telling of it,
+    Make such a sinner of his memory;
+    To credit his own lie:"--
+
+we should be careful never to speak or act, without regard to the
+_morale_ of our words or actions. A habit may and will grow to be a
+second nature.
+
+   "That monster, custom, who all sense doth eat,
+    Of habit's devil, is angel yet in this:
+    That to the use of actions fair and good
+    He likewise gives a frock or livery
+    That aptly is put on."
+
+There is no class of men among whom moral delinquency is more marked and
+disgraceful than among lawyers. Among merchants, so many honest men
+become involved through misfortune, that the rogue may hope to take
+shelter in the crowd, and be screened from observation. Not so the
+lawyer. If he continues to seek business, he must find his employment in
+lower and still lower grades; and will soon come to verify and
+illustrate the remark of Lord Bolingbroke, that "the profession of the
+law, in its nature the noblest and most beneficial to mankind, is in its
+abuse and abasement, the most sordid and pernicious."
+
+While such are the depths to which a lawyer may sink, look, on the other
+hand, at the noble eminence of honor, usefulness, and virtue, to which
+he may rise. Where is the profession, which, in this world, holds out
+brighter rewards? Genius, indeed, will leave its mark in whatever sphere
+it may move. But learning, industry, and integrity, stand nowhere on
+safer or higher ground, than in the walks of the law. In all free
+countries, it is the avenue not only to wealth, but to political
+influence and distinction. In England, a large proportion of the house
+of peers, owe their seats and dignities, as well as their possessions,
+either to their own professional success, or to that of some one of
+their ancestors.[55] In this country, all our Presidents but three, have
+been educated to the Bar. Of the men who have distinguished themselves
+in the cabinet, in the halls of legislation, and in foreign diplomacy,
+how large is the proportion of lawyers! How powerful has always been the
+profession in guiding the popular mind, in forming that greatest of all
+counterchecks to bad laws and bad administration,--public opinion! It is
+the school of eloquence--that, which more than all else besides, has
+swayed, still sways, and always will sway, the destinies of free
+peoples. Let a man, to the possession of this noble faculty, add the
+high character of purity and justice, integrity and honor, and where are
+to be found the limits of his moral power over his fellow-citizens?[56]
+It is well to read carefully and frequently, the biographies of eminent
+lawyers. It is good to rise from the perusal of the studies and labors,
+the trials and conflicts, the difficulties and triumphs, of such men, in
+the actual battle of life, with the secret feeling of dissatisfaction
+with ourselves. Such a sadness in the bosom of a young student, is like
+the tears of Thucydides, when he heard Herodotus read his history at the
+Olympic Games, and receive the plaudits of assembled Greece. It is the
+natural prelude to severer self-denial, to more assiduous study, to more
+self-sustaining confidence. Some one has recommended that Middleton's
+Life of Cicero should be perused, at frequent intervals, as the vivid
+picture of a truly great mind, in the midst of the most stirring scenes,
+ever intent upon its own cultivation and advancement, as its only true
+glory; and that in effect sketched by his own master hand.[57] The
+autobiography of Edward Gibbon will rouse an ambitious student like the
+sound of a trumpet. But of English biographies, there is no one, it
+occurs to me, better adapted to the purpose mentioned, than the Life of
+Sir William Jones, by Lord Teignmouth. It exhibits the wonders, which
+unremitted study, upheld by the pure and noble ambition of doing good,
+can accomplish in the space of a short life. He was a man of the most
+varied knowledge. An extensive and indeed extraordinary acquaintance
+with ancient and modern languages, was perhaps his chief accomplishment.
+Although he engaged very late in life in the study of the law, such was
+his industry and success, that he soon occupied the highest judicial
+station, in British India; and the profession are indebted to his pen,
+for one of the most beautiful of the elementary treatises, which adorn
+the lawyer's library. "In his early days," says his biographer, "he
+seems to have entered upon his career of study, with this maxim strongly
+impressed upon his mind, that whatever had been attained, was attainable
+by him; and it has been remarked, that he never neglected nor overlooked
+any opportunity of improving his intellectual faculties, or of acquiring
+esteemed accomplishments." Notwithstanding his numerous occupations at
+the Bar at home, the onerous duties of his station in India, and his
+premature death, before he had attained his forty-eighth year, he has
+left behind many learned works, which illustrate Oriental languages and
+history, and attest the extent of his labors and acquisitions. Indeed,
+it might be regarded as impossible, were we not informed of the regular
+allotment which he made of his time to particular occupations, and his
+scrupulous adherence to the distribution he had thus made. The moral
+character of this eminent man, was no less exemplary. It is the
+testimony of one of his contemporaries: "He had more virtues and less
+faults, than I ever yet knew in any human being; and the goodness of his
+head, admirable as it was, was exceeded by that of his heart." His own
+measure of true greatness, humanly speaking, he has left behind him, in
+very emphatic words: "If I am asked, who is the greatest man? I answer,
+the best. And if I am required to say, who is the best? I reply, he that
+has deserved most of his fellow-creatures."[58]
+
+This department of English literature has been recently much enriched
+by the labors of the present Lord High Chancellor of England, Lord
+Campbell. In America we have a few well written and instructive legal
+biographies, among which ought especially to be named, Mr. Wheaton's
+Life of William Pinkney, and Professor Parsons' interesting Memoir of
+his distinguished father, Chief Justice Parsons. Mr. Binney, at the
+close of his honored and honorable life, is paying the debt, which every
+man owes to his profession, in animated spirit-stirring sketches of his
+great and good contemporaries. How forcibly does this distinguished
+jurist illustrate the remark of Cicero in his Treatise on Old Age: "Sed
+videtis, ut senectus non modo languida atque iners non sit, verum etiam
+sit operosa, et semper agens aliquid et moliens; tale scilicet, quod
+cujusque studium in superiore vita fuit." What a noble example might be
+held up, in the life and character of Chief Justice Marshall! His
+biography, while it will be the record of active patriotism and
+humanity, will exhibit a course of arduous self-training, for the great
+conflicts of opinion, in which it was his lot afterwards to appear, with
+so much lustre. He had not the usual advantages of a collegiate
+education. The war of the Revolution, in which his ardent love of
+country, and of the principles of rational liberty, led him to enlist,
+and where he distinguished himself in the field, materially interfered
+with, and retarded his earlier professional studies; yet, the lofty
+eminence to which he attained in the opinion of his compatriots, even of
+those who could not concur in some of his views of the Constitution, the
+enduring monuments of his greatness in the decisions of the Supreme
+Court of the United States, bespeak an intellect of the very first
+order, mental power naturally vigorous, but brought, by proper exercise,
+to a degree of strength that made it tower above the general level of
+educated men. His opinions do not abound in displays of learning. His
+simplicity, a character so conspicuous in all his writings and
+actions--that first and highest characteristic of true greatness--led
+him to say and do just what was necessary and proper to the purpose in
+hand. Its reflected consequences on his own fame as a scholar, a
+statesman, or a jurist, seem never once to have occurred to him. As a
+judge, the Old World may be fairly challenged to produce his superior.
+His style is a model--simple and masculine. His reasoning--direct,
+cogent, demonstrative, advancing with a giant's pace and power, and yet
+withal so easy evidently to him, as to show clearly, a mind in the
+constant habit of such strong efforts. Though he filled for so many
+years the highest judicial position in this country, how much was his
+walk like the quiet and unobtrusive step of a private citizen, conscious
+of heavy responsibilities, and anxious to fulfil them; but unaware that
+the eyes of a nation--of many nations--were upon him! There was around
+him none of the glare, which dazzles; but he was clothed in that pure
+mellow light of declining evening, upon which we love to look. Where is
+the trust to society more sacred, where are duties more important, or
+consequences more extended, for individual or social weal or woe, than
+those which attach to the office he held? How apt, and aptly said, is
+that prayer of Wolsey, when he is informed of the promotion of Sir
+Thomas More to the place of Lord Chancellor:
+
+                  "May he ... do justice,
+    For truth's sake and his conscience; that his bones,
+    When he has run his course, and sleeps in blessings,
+    May have a tomb of orphans' tears wept on him."
+
+It is surely a just subject of national, as well as professional pride,
+that an American lawyer can thus, pointing to the example of such a man
+as JOHN MARSHALL, hold up his character, his reputation, his usefulness,
+his greatness, as incentives to high and honorable ambition; and
+especially, his life of unblemished virtue, and single-hearted
+purity,--after all, his highest praise, for, as old Shirley says,
+
+   "When our souls shall leave this dwelling,
+    The glory of one fair and virtuous action
+    Is above all the scutcheons on our tomb."
+
+Is it possible that a being so fearfully and wonderfully made as man,
+and animated by a spirit still more fearful and incomprehensible, was
+created for the brief term of a few revolutions of the planet he lives
+on? Shall his own physical and intellectual productions so long survive
+him? The massive piles of Egypt have endured for thousands of years:
+fluted column and sculptured architrave have stood for generations,
+monuments of his labor and skill. A poem of Homer, an oration of
+Demosthenes, an ode of Horace, a letter of Cicero, carry down to the
+remotest posterity the memorial of their names. Men found empires,
+establish constitutions, promulgate codes of laws; there have been
+Solons, Alexanders, Justinians, and Napoleons. There have been those
+justly called Fathers of their country, and benefactors of their race.
+Have they, too, sunk to become clods of the valley? The mind, which can
+look so far before and after--can subdue to its mastery the savages of
+the forests, and the fiercer elements of Nature--can stamp the creation
+of its genius upon the living canvas, or the almost breathing, speaking
+marble--can marshal the invisible vibrations of air into soul-stirring
+or soul-subduing music--can pour forth an eloquence of words, with magic
+power to lash the passions of many hearts into a raging whirlwind, or
+command them with a "peace, be still"--can make a book, a little book,
+which shall outlive pyramids and temples, cities and empires--can
+perceive and love beauty, in all its forms, and above all, moral beauty,
+and God, the infinite perfection of moral beauty,--no, this mind can
+never die. Its moral progress must go on in an unending existence, of
+which its life of fourscore years on earth is scarce the childhood. Let
+us beware then of raising these objects of ambition, wealth, learning,
+honor, and influence, worthy though they be, into an undue importance;
+nor in the too ardent pursuit of what are only means, lose sight of the
+great end of our being.
+
+
+
+
+APPENDIX.
+
+
+
+
+No. I.
+
+COURVOISIER'S CASE[59]
+
+
+On Tuesday night, May 5th, 1840, Lord William Russell, infirm, deaf, and
+aged, being in his seventy-third year, was murdered in his bed. He was a
+widower, living at No. 14 Norfolk Street, Park Lane, London, a small
+house, occupied by only himself and three servants,--Courvoisier, a
+young Swiss valet, and two women, a cook and house-maid. The evidence
+was of a character to show very clearly that the crime had been
+committed by some one in the house; but, Courvoisier's behavior
+throughout had been that of an innocent man. Two examinations of his
+trunk, by the officers of the police, showed nothing suspicious; rewards
+having been offered by the government and family of the deceased; for
+the detection of the criminal, a third examination was made of
+Courvoisier's box, which resulted in the discovery of a pair of white
+cotton gloves, two pocket handkerchiefs, and a shirt-front, stained with
+blood. The prisoner's counsel went to the trial with a full persuasion
+of his innocence, and conducted the cross-examination closely and
+zealously, especially of Sarah Mancer, one of the female domestics, with
+a view of showing that there was as much probability that the witness or
+the other domestic was the criminal as the prisoner; and that the
+police, incited by the hopes of the large rewards offered, had conspired
+to fasten the suspicion unjustly on him. At the close of the first day's
+proceedings, the prosecutors were placed unexpectedly in possession of a
+new and important item of evidence: the discovery of the plate of the
+deceased, which was missed, and that it had been left by the prisoner,
+at the place where it was found, about a week, perhaps only a very few
+days, before the committing of the murder. The parcel contained silver
+spoons, forks, a pair of gold auricles, all unquestionably the property
+of the unfortunate nobleman; and the only question remaining was,
+whether Courvoisier was the person who had so left it. If he were, it
+would, of course, grievously for him, increase the _probabilities_ that
+it must have been he who subsequently committed the murder, and with the
+object of plunder. On the ensuing morning, the person who had made this
+discovery (Mrs. Piolaine, the wife of a Frenchman, who kept a place of
+entertainment, called L'Hotel de Dieppe, in Leicester Place, Leicester
+Square), was shown a number of prisoners in the prison-yard, one of whom
+was Courvoisier, whom she instantly recognized as the person who had
+left the plate with her, and also had formerly lived in her employ.
+Courvoisier also suddenly recognized her, and with dismay. The immediate
+effect of his panic was the confession of his guilt to his counsel at
+the bar of the court, a few minutes afterwards, coupled with his desire,
+nevertheless, to be defended to the utmost. His probable object was
+simply to prepare his counsel against the forthcoming evidence. The
+prisoner was convicted, and afterwards confessed his crime. Mr.
+Phillips's conduct of the defence was criticized at the time, in the
+columns of the Examiner, but he suffered it to pass in silence. In 1849,
+that periodical renewed the accusation originally made, upon which the
+following correspondence appeared in the London Times of Nov. 20th,
+1849.
+
+
+TO THE EDITOR OF THE "TIMES."
+
+SIR,--I shall esteem it a great favor if you will allow the accompanying
+documents to appear in the "Times." Its universal circulation affords me
+an opportunity of annihilating a calumny recently revived, which has for
+nine years harassed my friends far more than myself.
+
+                                       I am, &c.,
+                                           CHARLES PHILLIPS.
+39 Gordon Square.
+
+
+                                            INNER TEMPLE, Nov. 14, 1849.
+
+MY DEAR PHILLIPS,--It was with pain that I heard yesterday of an
+accusation having been revived against you in the "Examiner" newspaper,
+respecting alleged dishonorable and most unconscientious conduct on your
+part, when defending Courvoisier against the charge of having murdered
+Lord William Russell. Considering that you fill a responsible judicial
+office, and have to leave behind you a name unsullied by any blot or
+stain, I think you ought to lose no time in offering, as I believe you
+can truly do, a public and peremptory contradiction to the allegations
+in question. The mere circumstances of your having been twice promoted
+to judicial office by two lord chancellors, Lord Lyndhurst and Lord
+Brougham, since the circulation of the reports to which I am alluding,
+and after those reports had been called to the attention of at least one
+of those noble and learned lords, is sufficient evidence of the
+groundlessness of such reports.
+
+Some time ago I was dining with Lord Denman, when I mentioned to him the
+report in question. His lordship immediately stated that he had inquired
+into the matter, and found the charge to be utterly unfounded; that he
+had spoken on the subject to Mr. Baron Parke, who had sat on the Bench
+beside Chief Justice Tindal, who tried Courvoisier, and that Baron Parke
+told him he had, for reasons of his own, most carefully watched every
+word that you uttered, and assured Lord Denman that your address was
+perfectly unexceptionable, and that you made no such statements as were
+subsequently attributed to you.
+
+Lord Denman told me that I was at liberty to mention this fact to any
+one; and expressed in noble and generous terms his concern at the
+existence of such serious and unfounded imputations upon your character
+and honor.
+
+Both Lord Denman and Baron Parke are men of as nice a sense of honor and
+as high a degree of consciousness as it is possible to conceive; and I
+think the testimony of two such distinguished judges ought to be
+publicly known, to extinguish every kind of suspicion on the subject.
+
+I write this letter to you spontaneously, and, hoping that you will
+forgive the earnestness with which I entreat you to act upon my
+suggestion, believe me ever yours sincerely,
+
+                                                    SAMUEL WARREN.
+MR. COMMISSIONER PHILLIPS.
+
+
+                                              39 GORDON SQUARE, Nov. 20.
+
+MY DEAR WARREN,--Your truly kind letter induces me to break the
+contemptuous silence, with which for nine years I have treated the
+calumnies, to which you allude. I am the more induced to this by the
+representations of some valued friends, that many honorable minds begin
+to believe the slander because of its repetition without receiving a
+contradiction. It is with disgust and disdain, however, that even thus
+solicited I stoop to notice inventions too abominable, I had hoped, for
+any honest man to have believed. The conduct of Lord Denman is in every
+respect characteristic of his noble nature. Too just to condemn without
+proof, he investigates the facts, and defends the innocent. His
+deliberate opinion is valuable indeed, because proceeding from one who
+is invaluable himself. My judicial appointments by the noblemen you
+mention would have entailed on them a fearful responsibility, had there
+been any truth in the accusations of which they must have been
+cognizant. I had no interest whatever with either of these chancellors,
+save that derived from their knowledge of my character, and their
+observation of my conduct. It is now five-and-twenty years ago since
+Lord Lyndhurst, when I had no friend here, voluntarily tendered me his
+favor and his influence, and his kindness to me remains to this day
+unabated. Of Lord Brougham, my ever warm and devoted friend, I forbear
+to speak, because words cannot express my affection or my gratitude. His
+friendship has soothed some affliction and enhanced every pleasure, and
+while memory lasts will remain the proudest of its recollections and the
+most precious of its treasures. This is no vain-glorious vaunting. The
+unabated kindness of three of the greatest men, who ever adorned the
+Bench, ought, in itself, to be a sufficient answer to my traducers. Such
+men as these would scarcely have given their countenance to one, who, if
+what were said of him were true, deserved their condemnation. I am not
+disposed, however, though I might be well warranted in doing so, to
+shelter myself under the authority of names, no matter how illustrious.
+I give to each and all of these charges a solemn and indignant
+contradiction, and I will now proceed to their refutation. The charges
+are threefold, and I shall discuss them _seriatim_.
+
+First, I am accused of having retained Courvoisier's brief after having
+heard his confession. It is right that I should relate the manner of
+that confession, as it has been somewhat misapprehended. Many suppose it
+was made to me alone, and made in the prison. I never was in the prison
+since I was called to the Bar, and but once before, being invited to see
+it by the then sheriffs. So strict is this rule, that the late Mr.
+Fauntleroy solicited a consultation there in vain with his other counsel
+and myself. It was on the second morning of the trial, just before the
+judges entered, that Courvoisier, standing publicly in front of the
+dock, solicited an interview with his counsel. My excellent friend and
+colleague, Mr. Clarkson, and myself immediately approached him. I beg of
+you to mark the presence of Mr. Clarkson, as it will become very
+material presently. Up to this morning I believed most firmly in his
+innocence, and so did many others as well as myself. "I have sent for
+you, gentlemen," said he, "to tell you I committed the murder!" When I
+could speak, which was not immediately, I said, "Of course then you are
+going to plead guilty?"--"No, sir," was the reply, "I expect you to
+defend me to the utmost." We returned to our seats. My position at this
+moment was, I believe, without parallel in the annals of the profession.
+I at once came to the resolution of abandoning the case, and so I told
+my colleague. He strongly and urgently remonstrated against it, but in
+vain. At last he suggested our obtaining the opinion of the learned
+judge, who was not trying the cause, upon what he considered to be the
+professional etiquette under circumstances so embarrassing. In this I
+very willingly acquiesced. We obtained an interview, and Mr. Baron
+Parke requested to know distinctly whether the prisoner insisted on my
+defending him, and, on hearing that he did, said, I was bound to do so,
+and to use all fair arguments arising on the evidence. I therefore
+retained the brief, and I contend for it, that every argument I used was
+a fair commentary on the evidence, though undoubtedly as strong as I
+could make them. I believe there is no difference of opinion now in the
+profession that this course was right. It was not until after eight
+hours' public exertion before the jury that the prisoner confessed; and
+to have abandoned him then would have been virtually surrendering him to
+death. This is my answer to the first charge.
+
+I am accused, secondly, of having "appealed to Heaven as to my belief in
+Courvoisier's innocence," after he had made me acquainted with his
+guilt. A grievous accusation! But it is false as it is foul, and carries
+its own refutation on its face. It is with difficulty I restrain the
+expression of my indignation; but respect for my station forbids me to
+characterize this slander as it deserves. It will not bear one moment's
+analysis. It is an utter impossibility under the circumstances. What!
+appeal to Heaven for its testimony to a lie, and not expect to be
+answered by its lightning? What! make such an appeal, conscious that an
+honorable colleague sat beside me, whose valued friendship I must have
+forever forfeited? But above all and beyond all, and too monstrous for
+belief, would I have dared to utter that falsehood in the very presence
+of the judge to whom, but the day before, I had confided the reality!
+There, upon the Bench above me, sat that time-honored man--that upright
+magistrate, pure as his ermine, "narrowly watching" every word I said.
+Had I dared to make an appeal so horrible and so impious--had I dared so
+to outrage his nature and my own conscience, he would have started from
+his seat and withered me with a glance. No, Warren, I never made such an
+appeal; it is a malignant untruth, and sure I am, had the person who
+coined it but known what had previously occurred, he never would have
+uttered from his libel mint so very clumsy and self-proclaiming a
+counterfeit. So far for the verisimilitude of this-charge. But I will
+not rest either on improbability, or argument, or even denial. I have a
+better and a conclusive answer. The trial terminated on Saturday
+evening. On Sunday I was shown in a newspaper the passage imputed to me.
+I took the paper to court on Monday, and, in the aldermen's room, before
+all assembled, after reading the paragraph aloud, I thus addressed the
+judges:--"I take the very first opportunity which offers, my lords, of
+most respectfully inquiring of you whether I ever used any such
+expression?"--"You certainly did not, Phillips," was the reply of the
+late lamented Lord Chief Justice, "and I will be your vouchee whenever
+you choose to call me,"--"And I," said Mr. Baron Parke, happily still
+spared to us, "had a reason, which the Lord Chief Justice did not know,
+for watching you narrowly, and he will remember my saying to him, when
+you sat down, 'Brother Tindal, did you observe how carefully Phillips
+abstained from giving any personal opinion in the case?' To this the
+learned Chief Justice instantly assented." This is my answer to the
+second charge.
+
+Thirdly, and lastly, I am accused of having endeavored to cast upon the
+female servants the guilt, which I knew was attributable to Courvoisier.
+You will observe, of course, that the gravamen of this consists in my
+having done so after the confession. The answer to this is obvious.
+Courvoisier did not confess till Friday: the cross-examination took
+place the day before, and so far, therefore, the accusation is disposed
+of. But it may be said I did so in my address to the jury. Before
+refuting this let me observe upon the disheartening circumstances under
+which that address was delivered. At the close of the, to me, most
+wretched day on which the confession was made, the prisoner sent me this
+astounding message by his solicitor: "Tell Mr. Phillips, my counsel,
+that I consider he has my life in his hands." My answer was, that as he
+must be present himself, he would have an opportunity of seeing whether
+I deserted him or not. I was to speak on the next morning. But what a
+night preceded it! Fevered and horror-stricken, I could find no repose.
+If I slumbered for a moment, the murderer's form arose before me,
+scaring sleep away, now muttering his awful crime, and now shrieking to
+me to save his life! I did try to save it. I did everything to save it,
+except that which is imputed to me, but that I did not, and I will prove
+it. I have since pondered much upon this subject, and I am satisfied
+that my original impression was erroneous. I had no right to throw up my
+brief, and turn traitor to the wretch, wretch though he was, who had
+confided in me. The counsel for a prisoner has no option. The moment he
+accepts his brief, every faculty he possesses becomes his client's
+property. It is an implied contract between him and the man who trusts
+him. Out of the profession this may be a moot point, but it was asserted
+and acted on by two illustrious advocates of our own day, even to the
+confronting of a king, and, to the regal honor be it spoken, these
+dauntless men were afterwards promoted to the highest dignities.
+
+You will ask me here whether I contend on this principle for the right
+of doing that of which I am accused, namely, casting the guilt upon the
+innocent? I do no such thing; and I deny the imputation altogether. You
+will still bear in mind what I have said before, that I scarcely could
+have dared to do so under the eye of Baron Parke and in the presence of
+Mr. Clarkson. To act so, I must have been insane. But to set this matter
+at rest, I have referred to my address as reported in the "Times"--a
+journal the fidelity of whose reports was never questioned. You will be
+amazed to hear that I not only did not do that of which I am accused;
+but that I did the very reverse. Fearing that, nervous and unstrung as I
+was, I might do any injustice in the course of a lengthened speech, by
+even an ambiguous expression, I find these words reported in the
+"Times,"--"Mr. Phillips said the prosecutors were bound to prove the
+guilt of the prisoner, not by inference, by reasoning, by such subtile
+and refined ingenuity as had been used, but by downright, clear, open,
+palpable demonstration. How did they seek to do this? What said Mr.
+Adolphus and his witness, Sarah Mancer? And here he would beg the jury
+not to suppose for a moment, in the course of the narrative with which
+he must trouble them, that he meant to cast the crime upon either of the
+female servants. It was not at all necessary to his case to do so. It
+was neither his interest, his duty, nor his policy, to do so. God forbid
+that any breath of his should send tainted into the world persons
+depending for their subsistence on their character." Surely this ought
+to be sufficient. I cannot allude, however, to this giant of the press,
+whose might can make or unmake a reputation, without gratefully
+acknowledging that it never lent its great circulation to these libels.
+It had too much justice. The "Morning Chronicle," the "Morning Herald,"
+and the "Morning Post," the only journals to which I have access, fully
+corroborated the "Times," if, indeed, such a journal needed
+corroboration. The "Chronicle" runs thus:--"In the first place, says my
+friend Mr. Adolphus, and says his witness Sarah Mancer--and here I beg
+to do an act of justice, and to assure you that I do not for a moment
+mean to suggest in the whole course of my narrative that this crime may
+have been committed by the female servants of the deceased nobleman."
+"The Morning Post" runs thus: "Mr. Adolphus called a witness, Sarah
+Mancer. But let me do myself justice, and others justice, by now
+stating, that in the whole course of my narrative with which I must
+trouble you, I beg you would not suppose that I am in the least degree
+seeking to cast the crime upon any of the witnesses. God forbid that any
+breath of mine should send persons depending on the public for
+subsistence into the world with a tainted character." I find the
+"Morning Herald" reporting me as follows: "Mr. Adolphus called a witness
+named Sarah Mancer. But let me do myself justice and others justice by
+now stating that in the whole course of the narrative with which I must
+trouble you, I must beg that you will not suppose that I am in the least
+degree seeking to cast blame upon any of the witnesses." Can any
+disclaimer be more complete? And yet, in the face of this, for nine
+successive years has this most unscrupulous of slanderers reiterated his
+charge. Not quite three weeks ago he recurs to it in these terms: "How
+much worse was the attempt of Mr. Phillips to throw the suspicion of the
+murder of Lord William Russell on the innocent female servants, in order
+to procure the acquittal of his client Courvoisier, of whose guilt he
+was cognizant?" I have read with care the whole report in the "Times" of
+that three hours' speech, and I do not find a passage to give this
+charge countenance. But surely, surely, in the agitated state in which I
+was, had even an ambiguous expression dropped from me, the above broad
+disclaimer would have been its efficient antidote.
+
+Such is my answer to the last charge; and, come what will, it shall be
+my final answer. No envenomed reiteration, no popular delusion, no
+importunity of friendship, shall ever draw from me another syllable. I
+shall remain in future, as I have been heretofore, _auditor tantum_. You
+know well how strenuously and how repeatedly you pressed me to my
+vindication, especially after Lord Denman's important conversation with
+you, and you know the stern disdain with which I dissented. The _mens
+conscia recti_, a thorough contempt for my traducer, the belief that
+truth would in the end prevail, and a self-humiliation at stooping to a
+defence, amply sustained me amid the almost national outcry which
+calumny had created. Relying doubtless upon this, month after month, for
+nine successive years, my accuser has iterated and reiterated his libels
+in terms so gross, so vulgar, and so disgraceful, that my most valued
+friends thought it my duty to them publicly to refute them. To that
+consideration, and to that alone, I have yielded; in deference to
+theirs, relinquishing my own opinions. If they suppose, however, that
+slander, because answered, will be silenced, they will find themselves
+mistaken.
+
+    Destroy the web of sophistry--in vain--
+    The creature's at his dirty work again.
+
+No, no, my dear friend, invention is a libeller's exhaustless capital,
+and refutation but supplies the food on which he lives. He may, however,
+pursue his vocation undisturbed by me. His libels and my answer are now
+before the world, and I leave them to the judgment of all honorable men.
+
+                                                      C. PHILLIPS.
+
+
+
+
+No. II.
+
+COURSE OF LEGAL STUDY[60]
+
+
+_Non multa sed multum_, is the cardinal maxim by which the student of law
+should be governed in his readings; at the commencement of his studies--in
+the office of his legal preceptor, REPETITION--REPETITION--REPETITION.
+Blackstone and Kent, should be read--and read again and again. These
+elementary works, with some others of an immediately practical
+cast--Tidd's Practice, Stephen's Pleading, Greenleaf's Evidence, Leigh's
+Nisi Prius, Mitford's Equity Pleading--well conned, make up the best
+part of office reading. Of course the Acts of Assembly should be gone
+over and over again. I do not say that this is all. The plan of reading,
+which I am about to recommend, may be begun in the office. Much will
+depend upon, what may be termed, the mental temperament of the student
+himself, which no one but the immediate preceptor can observe; and he
+will be governed accordingly in the selection of works to be placed in
+his hands. No lawyer does his duty, who does not frequently examine his
+student, not merely as a necessary means of exciting him to attention,
+and application; but in order to acquire such an acquaintance with the
+character of his pupil's mind--its quickness or slowness--its
+concentrativeness or discursiveness--as to be able to form a judgment
+whether he requires the curb or the spur. It is an inestimable advantage
+to a young man to have a judicious and experienced friend watching
+anxiously his progress, and able to direct him, when, if left to
+himself, he must wander in darkness and danger. "There be two things,"
+says Lord Coke, "to be avoided by him as enemies to learning,
+_præpostera lectio_ and _præpropera praxis_." Co. Litt. 70 b.
+
+I prefer presenting a certain order of subjects to be pursued;
+observing, however, that it may be somewhat irksome to pursue any one
+branch for too long a period unvaried. When that is found to be the
+case, the last five heads may be adopted as collateral studies, and
+pursued simultaneously with the first three.
+
+These heads or branches are--1. Real Estate and Equity. 2. Practice,
+Pleading, and Evidence. 3. Crime and Forfeitures. 4. Natural and
+International law. 5. Constitutional Law. 6. Civil Law. 7. Persons and
+Personal Property. 8. The Law of Executors and Administrators.
+
+
+I. REAL ESTATE AND EQUITY.
+
+As introductory to this head, Lord Hale's History of the Common Law may
+be perused with advantage. It was perhaps a mere sketch, intended to be
+afterwards filled up and completed. Still, however, it is a work of
+authority, as indeed is everything which proceeded from the pen of its
+distinguished author. He is correct and accurate to a remarkable degree.
+Reeves' History of the English Law is a full and comprehensive history
+of the English Law, accurate and judicious as well as full. Lord
+Mansfield is said to have advised its author in regard to its plan and
+execution. In this work the student is presented with all that is
+necessary that he should know of the earliest law-books, Bracton,
+Glanville, and Fleta, carefully collected and presented. The history of
+the law is separately traced under the reign of each king, and it may be
+of advantage to read at the same time some good history or histories of
+England parallel with the work. "Reeves' History of the English Law,"
+says Chancellor Kent, "contains the best account that we have of the
+progress of the law, from the time of the Saxons to the reign of
+Elizabeth. It covers the whole ground of the law included in the old
+abridgments, and it is a work deserving of the highest commendation. I
+am at a loss which most to admire, the full and accurate learning, which
+it contains, or the neat, perspicuous, and sometimes elegant style, in
+which that learning is conveyed." 1 Comm. 508.
+
+Dalrymple's Essay towards a general History of Feudal Property in Great
+Britain, is a brief but learned and philosophical treatise, which may be
+followed by Sullivan's Lectures on Feudal Law, a work copious in detail
+and exhibiting ably, among other topics, the influence of the feudal
+system upon the Modern Law of Tenures. Sir Martin Wright's Introduction
+to the Law of Tenures is one of the most accurate and profound of the
+essays on this topic; and is worthy of the most attentive study. Craig
+de Feudis was thought by Lord Mansfield much preferable to any judicial
+work which England had then produced. With these legal treatises on the
+feudal system may be read with great advantage, simultaneously,
+Robertson's History of Charles V, and Hallam's History of the Middle
+Ages.
+
+Sir Henry Finch's Law, or Nomotechnia, as he entitled it, may be taken
+up in this connection. It is said that until the publication of
+Blackstone's Commentaries, it was regarded as the best elementary book
+to be placed in the hands of law students; and we have the authority of
+Sir William Blackstone for saying that his method was greatly superior
+to that in all the treatises that were then extant: Blackstone's
+Analysis, Preface, 6. "His text," says Chancellor Kent, "was weighty,
+concise, and nervous, and his illustrations apposite, clear, and
+authentic;" though he adds, "But the abolition of the feudal tenures and
+the disuse of real actions, have rendered half of his work obsolete," 1
+Comm. 509; an objection, in the view we take of legal education, which
+should rather recommend the work than otherwise.
+
+At the same time with Finch take Doctor and Student by St. Germain--a
+little book which is replete with sound law, and has always been cited
+with approbation as an authority.
+
+The Prefaces to the several volumes of Lord Coke's Reports may be read
+now with great advantage. They contain much interesting information, and
+strongly impregnated as they are with Lord Coke's abundant learning and
+love of the law as a science and profession, they form an admirable
+introduction to The First Institute, or Lord Coke's Commentary upon
+Littleton's Tenures. It would be advisable, I think, to read first in
+order the sections of Littleton's Tenures, the original treatise upon
+which The Institute was a commentary. After that, no time or pains
+should be spared to master completely The First Institute. If the course
+now prescribed has been followed, the student will not require to be
+reminded, that even those parts, which seem to relate to obsolete heads
+of the law, ought to be read and understood. "There is not," says Mr.
+Butler, "in the whole of this golden book, a single line which the
+student will not in his professional career, find on more than one
+occasion eminently useful." There may be some extravagance in this
+assertion; but we may nevertheless agree with Mr. Ritso that "there is
+no knowledge of this kind, which may not, sooner or later, be in fresh
+demand; there is no length of time or change of circumstances, that can
+entirely defeat its operation or destroy its intrinsic authority. Like
+the old specie withdrawn from circulation upon the introduction of a
+new coinage, it has always its inherent value; the ore is still sterling
+and may be moulded into modern currency." The opinions of American
+lawyers confirm this conclusion. It is well known that C. J. Parsons was
+distinguished for his familiarity with the pages of The Institute. It
+was Mr. Pinkney's favorite law book; and "his arguments at the Bar,"
+says his biographer, Mr. Wheaton, "abounded with perpetual recurrences
+to the principles and analysis drawn from this rich mine of common law
+learning." Mr. Hoffman, in his Course of Legal Study, has also borne his
+testimony to its importance to the American practitioner. Chancellor
+Kent seems, as I have intimated in the note, to lean rather against Coke
+upon Littleton, as an Institute of Legal Education, although he
+acknowledges its value and authority as a book of reference.
+
+It appears to me that after Coke, Preston's Elementary Treatise on
+Estates may be read with advantage. He is perhaps unnecessarily diffuse
+and tautological; but he enters largely into the reasons of the abstruse
+doctrines of which he treats, and his work is calculated to lead the
+student to inquire more earnestly into the philosophy of the science.
+Fearne's Essay on the Learning of Contingent Remainders, should then be
+well studied. If no other book be read over a second time, it must not
+be omitted as to this. This volume is occupied in the discussion of
+points of great difficulty and abstruseness; yet the style is remarkable
+for clearness and perspicuity, and the reasoning is logical and
+irresistible. A taste or otherwise, for this book, will test the
+student's real progress. After Fearne, take up Sheppard's Touchstone of
+Common Assurances--a work generally supposed to have been written by Mr.
+Justice Doddridge, and not by William Sheppard, whose name it bears. It
+is a most valuable book, one of the most esteemed and authoritative of
+the old treatises. There is an edition by Mr. Preston, but I do not
+recommend it. Had he annotated in the common way, his labors and
+references would no doubt have increased the value of the book; but he
+has taken liberties with the text,--subdividing it, occasionally
+changing the phraseology, and inserting matter of his own: a course of
+proceeding in regard to any work, except a digest or dictionary, to
+which I cannot be reconciled. The Touchstone may be followed by Preston
+on Abstracts of Title, and Preston's Treatise on Conveyancing.
+
+I think that at this period, as a necessary introduction to the
+succeeding studies, some works on Equity Jurisprudence should be taken
+in hand; as the Treatise on Equity of which Henry Ballow is the reputed
+author. It is the text of Fonblanque's Equity. It had better be read by
+itself. Disquisitional notes of great length only confuse and confound
+the student; and Mr. Marvin has well said that Fonblanque's Equity
+"finally expired under the weight of its own notes." To this add
+Jeremy's Treatise on Equity, and Story's Commentaries on Equity
+Jurisprudence. The student may then read with advantage, Powell on
+Mortgages, with Coventry's Notes. It is to be lamented that Mr.
+Coventry did not prepare an original work, instead of overwhelming the
+text of Powell with his learned and valuable labors. Chancellor Kent has
+remarked, that between the English and American editors it is "somewhat
+difficult for the reader to know, without considerable difficulty, upon
+what ground he stands." Like the treatise on Equity, it has been nearly
+choked to death in the embraces of its annotators. Bacon's Reading upon
+the Statute of Uses, is a very profound treatise on that subject, though
+evidently left by its great author in an unfinished state. Sanders on
+Uses and Trusts, is a very comprehensive and learned work, and the
+subject, which may be styled the Metaphysics of the Law, requires close
+attention. Hill on Trustees, is a practical treatise, which may here be
+read with advantage, as also Lewis on Perpetuities. Sugden on Powers,
+has been said to be second to no elementary law book. It is a masterly
+elucidation of the subtle doctrines of the law on the subject of Powers,
+and is held in the highest estimation. It will perhaps be better
+appreciated and understood, if with it, or after it, is taken up
+Chance's Treatise on Powers,--a work more diffuse than Mr. Sugden's, and
+which examines, controverts, and discusses at large many of his
+positions. Sugden on Vendors and Purchasers may then follow.
+
+The titles on Leases and Terms for Years, and Rent, in Bacon's
+Abridgment, should be studied. These were the works of Chief Baron
+Gilbert. After this, Woodfall on Landlord and Tenant.
+
+Roscoe's Treatise on the Law of Actions relating to Real Property, may
+be read as a convenient introduction to Cruise on Fines and Recoveries,
+and Pigott on Common Recoveries.
+
+To these, in conclusion of this, by far the most important and
+fundamental branch of legal studies, may be added, Powell's Essay on the
+Learning of Devises, and Jarman on Wills.
+
+It will be remarked, that I have not set down in order, any Report
+Books; it is not that I undervalue that kind of study. It appears to me
+that in his regular reading, the student should constantly resort to and
+examine the principal cases referred to and commented upon by his
+authors. In this way, he will read them more intelligently, and they
+will be better impressed on his memory. Some reports may be read through
+continuously; such are Plowden, Hobart, Vernon, and I certainly think,
+Johnson's Chancery Reports should be thus read. Smith's Leading Cases is
+an excellent reading-book of this kind. The student of Pennsylvania Law
+will do well not to omit Binney's Reports. But I assign no particular
+place to this kind of study, because I think it may be taken up and laid
+aside at intervals, according to the bent of the student's inclination.
+When, in any particular part of his course, he finds his regular reading
+drags heavily--he has become fagged and tired of a particular
+subject--let him turn aside for a week or two, to some approved and
+standard Report Book; it will be useful reading, and he will be able to
+return refreshed to his proper course.
+
+It would extend this Appendix too much, if I were to go over the
+remaining parts of the prescribed plan, with the same particularity as I
+have this first and most important branch. It will be sufficient to
+indicate merely the books, and the order in which they may be most
+profitably read, under each division.
+
+
+II. PRACTICE, PLEADING, AND EVIDENCE.
+
+The Introduction to Crompton's Practice gives a full account of the
+jurisdiction of the courts, and the steps by which it was arrived at.
+This book is sometimes called Sellon's Practice, having been arranged by
+Mr. Sellon. The fourth part of The Institutes of Lord Coke. Tidd's
+Practice. Stephen on Pleading. Saunders' Reports, with Notes by
+Williams. Broom's Parties to Actions. Greenleaf on Evidence. Selwyn's
+Nisi Prius. Leigh's Nisi Prius. Mitford's Pleading in Equity. Story's
+Equity Pleading. Barton's Historical Treatise of a Suit in Equity.
+Newland's Chancery Practice. Gresley on Evidence in Equity.
+
+
+III. CRIMES AND FORFEITURES.
+
+Hale's History of the Pleas of the Crown. Foster's Crown Law. Yorke's
+Considerations on the Law of Forfeiture for High Treason. The third
+part of The Institutes of Lord Coke. Russell on Crimes and Misdemeanors.
+Chitty on Criminal Law.
+
+
+IV. NATURAL AND INTERNATIONAL LAW.
+
+Burlamaqui's Natural and Political Law. Grotius de Jure Belli et Pacis.
+Rutherford's Institutes. Vattel's Law of Nations. Bynkershoek Questiones
+Publici Juris. Wicquefort's Ambassador. Bynkershoek de Foro Legatorum.
+McIntosh's Discourse on the Study of the Law of Nature and Nations.
+Wheaton's History of International Law. Wheaton's International Law.
+Robinson's Admiralty Reports. Cases in the Supreme Court of the United
+States.
+
+
+V. CONSTITUTIONAL LAW.
+
+The second part of Lord Coke's Institutes. Hallam's Constitutional
+History of England. Wynne's Eunomus. De Lolme on the English
+Constitution, with Stephens' Introduction and Notes. The Federalist.
+Rawle on the Constitution. Story on the Constitution. All the cases
+decided in the Supreme Court of the United States, on constitutional
+questions, to be read methodically, as far as possible.
+
+
+VI. CIVIL LAW.
+
+I consider some study of this head as a necessary introduction to a
+thorough course on the subjects of Persons and Personal Property, and
+the topic, which is so important in the United States, of the Conflict
+of Laws.
+
+Butler's Horæ Juridicæ. Gibbon's History of the Decline and Fall, chap.
+44. Justinian's Institutes. Savigny's Traité de Droit Romain. Savigny's
+Histoire du Droit Romain au Moyen Age. Taylor's Elements of the Civil
+Law. Mackeldy's Compendium. Colquhoun's Summary of the Roman Civil Law.
+Domat's Civil Law.
+
+
+VII. PERSONS AND PERSONAL PROPERTY.
+
+Reeves on the Domestic Relations. Bingham's Law of Infancy and
+Coverture. Roper on Husband and Wife. Angel and Ames on Corporations.
+Les [OE]uvres de Pothier. Smith on Contracts. Story on Bailments. Jones
+on Bailments. Story on Partnership. Byles on Bills. Story on Promissory
+Notes. Abbott on Shipping. Duer on Insurance. Emerigon Traité des
+Assurances. Boulay-Paty Cour de Droit Commercial. Story on the Conflict
+of Laws.
+
+
+VIII. EXECUTORS AND ADMINISTRATORS.
+
+Roper on Legacies. Toller on Executors. Williams on Executors. The Law's
+Disposal, by Lovelass.
+
+I believe that the course that I have thus sketched, if steadily and
+laboriously pursued, will make a very thorough lawyer. There is
+certainly nothing in the plan beyond the reach of any young man, with
+ordinary industry and application, in a period of from five to seven
+years, with a considerable allowance for the interruptions of business
+and relaxation. One thing is certain,--there is no royal road to Law,
+any more than there is to Geometry. The fruits of study cannot be
+gathered without its toil. It seems the order of Providence that there
+should be nothing really valuable in the world not gained by labor,
+pain, care, or anxiety. In the law, a young man must be the architect of
+his own character, as well as of his own fortune. "The profession of the
+law," says Mr. Ritso, "is that, of all others, which imposes the most
+extensive obligations upon those who have had the confidence to make
+choice of it; and indeed there is no other path of life in which the
+unassumed superiority of individual merit is more conspicuously
+distinguished according to the respective abilities of the parties. The
+laurels that grow within these precincts are to be gathered with no
+vulgar hands; they resist the unhallowed grasp, like the golden branch
+with which the hero of the Æneid threw open the adamantine gates that
+led to Elysium."
+
+
+
+
+No. III.
+
+THE ENGLISH BAR.
+
+
+There are three orders of men at the English Bar: 1. Attorneys, or
+Solicitors in Chancery. 2. Barristers; and 3. Serjeants.
+
+1. _Attorneys and Solicitors._--Acts of Parliament have been made for
+the regulation of this class. The Stat. 6 & 7 Vict. c. 73, consolidating
+and amending several of the laws relating to attorneys and solicitors,
+prescribes the conditions of admission as an attorney, the time and mode
+of their service under articles; and the oaths to be administered to
+them; and authorizes the Judges of the courts of the common law, and the
+Master of the Rolls to appoint examiners to examine the fitness and
+capacity of all persons applying to be admitted as attorneys or
+solicitors; and the certificate, either of the common law or equity
+examiners, will be sufficient to entitle a person so examined to
+admission in all the courts, examination by both not being necessary. 3
+Stewart's Blackst. 29.
+
+2. _Barristers._--The proper legal denomination of this class is
+_apprentices_, being the first degree in the law conferred by the inns
+of court. Spelman defines apprentice, _tyro_, _discipulus_, _novitius in
+aliqua facultate_. This was probably the meaning of the term primarily;
+but as early as the reign of Edward I, it was employed to denote
+counsel below the state and degree of serjeant at law; one degree
+corresponding to that of bachelor, and the other to that of doctor, in
+the universities (Pearce's History of the Inns of Court, 28). Lord Coke
+informs us, however, that this degree was anciently preferred to that of
+serjeant (2 Inst. 214). They were termed _apprenticii ad legem_, or _ad
+barras_; and hence arose the cognomen of _barristers_. A barrister must
+have kept twelve terms, _i. e._, been three years a member of an inn of
+court, before he can be called to the Bar. After a member of an inn of
+court has kept twelve terms, he may, without being called, obtain
+permission to practice _under the Bar_. This class of practitioners are
+called _special pleaders_ or _equity draftsmen_ (according as they
+prepare pleadings in the common law or equity courts), or
+_conveyancers_, who prepare deeds. 3 Stewart's Blackst. 26, note. Those
+who are regularly called, however, may take upon them the causes of all
+suitors. Such of the barristers as have a patent of precedence, as
+king's counsel, sit within the Bar, with the serjeants; all others are
+called _utter_ or _outer barristers_.
+
+3. _Serjeants at law._--_Servientes ad legem_, or serjeant-countors. The
+coif or covering to the head worn by this order has also given a
+denomination to them. There exists some differences of opinion among
+judicial antiquarians as to the origin of the coif. It is supposed by
+some to have been invented about the time of Henry III, for the purpose
+of concealing the clerical tonsure, and thus disguising those renegade
+clerks, who were desirous of eluding the canon, restraining the clergy
+from practising as counsel in the secular courts. Hortensius, 349. By
+others it is referred to a much earlier period, when the practice in the
+higher courts was monopolized by the clergy, and those who were not in
+orders invented the coif to conceal the want of clerical tonsure. 1
+Campbell's Lives of the Chief Justices, 85, note. There are, indeed,
+several circumstances to remind us of the ecclesiastical origin of our
+profession in England. The terms--on the festival of St. Hilary (Bishop
+of Poictiers, in France, who flourished in the fourth century); Easter;
+the Holy Trinity; and of the blessed Michael, the Archangel;--the habits
+of the judges, their appearance in court in scarlet, purple, or black,
+at particular seasons--the use of the word _brother_ to denote serjeant,
+and _laity_ to distinguish the people at large from the profession--the
+coif of the serjeants--the bands worn by judges, serjeants, and counsel,
+and the gown and hood of graduates of the inns of court,--many of such
+circumstances raise a strong presumption that the legal university was
+founded before the time of the enactment of the canons in the reign of
+King Henry III, compelling the clergy to abandon the practice of the law
+in the secular courts (Pearce's History, 22). _Nulles clericus nisi
+causidicus_, was the character given of the clergy, soon after the
+Conquest, by William of Malmsbury. The judges, therefore, were usually
+created out of the sacred order, as was likewise the case among the
+Normans; and all the inferior offices were supplied by the lower
+clergy, which has occasioned their successors to be styled _clerks_ to
+this day (1 Bl. Com. 17). The livings in the gift of the Chancellor were
+originally intended as a provision for them, and an order was made in
+Parliament, 4 Edw. III, that "the Chancellor should give the livings in
+his gift, rated at twenty marks and under, to the King's clerks in
+Chancery, the Exchequer, and the two Benches, according to usage, and to
+none others." 1 Campbell's Lives of the Chancellors, 170, note.
+
+In the time of Fortescue, sixteen years' continuance in the study of the
+law was the period of time considered a necessary qualification in
+candidates for the coif. There seems, however, never to have been a
+regulation to that effect; and it is certain that persons have often
+been advanced to this degree before that time. By the common law no one
+can be appointed a judge of the superior courts, who has not attained
+the degree of the coif; which degree can only be conferred on a
+barrister of one of the four inns of court. As soon as any member of an
+inn of court is raised by royal writ to the state, degree, and dignity
+of a serjeant-at-law, he ceases to be a member of the society. He
+removes to a new hall, and appears for the future in the inn of court as
+a guest (Pearce, 52).
+
+The most valuable privilege formerly enjoyed by the serjeants (who,
+besides the judges, were limited to fifteen in number), was the monopoly
+of the practice in the Court of Common Pleas. A bill was introduced into
+Parliament in the year 1755; for the purpose of destroying this
+monopoly; but it did not pass. In 1834, a warrant under the sign manual
+of the Crown was directed to the Judges of the Common Pleas, commanding
+them to open that court to the Bar at large, on the ground that it would
+tend to the general dispatch of business. This order was received, and
+the court acted accordingly. But in 1839 the matter was brought before
+the court by the serjeants, when it was decided that the order was
+illegal; Tindal, C. J., declaring that, "from time immemorial, the
+serjeants have enjoyed the exclusive privilege of practising, pleading;
+and audience in the Court of Common Pleas. Immemorial enjoyment is the
+most solid of all titles; and we think the warrant of the Crown can no
+more deprive the serjeant, who holds an immemorial office, of the
+benefits and privileges which belong to it, than it could alter the
+administration of the law within the court itself." (10 Bingh. 571; 6
+Bingh. N. C. 187, 232, 235.) However, the Statute 9 & 10 Vict. c. 54,
+has since extended to all barristers the privileges of serjeants in the
+Court of Common Pleas.
+
+
+FOOTNOTES:
+
+[1] This oath seems first to have been prescribed by the Act of
+Assembly, passed August 22d, 1752: "An act for regulating and
+establishing fees." (1 Smith's Laws, 218.) It has been copied into the
+revised Act of 14th April, 1834, s. 69 (Pamphlet Laws, 354), with the
+addition of the clause to "support the Constitution of the United
+States, and the Constitution of this Commonwealth." In England, by the
+Stat. 4 Henry IV, c. 18 (A. D. 1402), it was provided, "that all
+attorneys shall be examined by the Justices, and by their discretion,
+their names put in the roll, and they that be good and virtuous, and of
+good fame, shall be received, and sworn well and truly to serve in their
+offices, and especially that they make no suit in a foreign country."
+The present oath or affirmation is, that he "will truly and honestly
+demean himself in the practice of an attorney, according to the best of
+his knowledge and ability." Stat. 2 Geo. II, c. 23 (A. D. 1729); Stat. 6
+& 7 Vict. c. 73. The qualification of a sergeant-at-law, is given at
+large in 2 Inst. 213; and in the valuable old book, "The Mirror of
+Justices," chap. 2, sec. 5, it is said that "every countor is chargeable
+by the oath, that he shall do no wrong nor falsity, contrary to his
+knowledge, but shall plead for his client the best he can, according to
+his understanding."
+
+[2] Hurst's case, 1 Levins, 72; 1 Sid. 94, 151; Raym. 56, 94; 1 Keb.
+349, 354, 387.
+
+[3] See Austin's case, 5 Rawle, 203. "An attorney at law," says C. J.
+Gibson, "is an officer of the court. The terms of the oath, exacted of
+him at his admission to the bar, prove him to be so;" "you shall behave
+yourself in your _office_ of attorney," &c. Again: it is declared in the
+Constitution, Article 1st, sec. 18 (Art. 1, sec. 19, of the amended
+Constitution of 1838), that "no member of Congress, or other person
+holding any _office_ (except _attorney at law_, and in the militia),
+shall be a member of either House," &c., which is a direct
+constitutional recognition. Prior to the Act of 14th April, 1834, which
+expressly required from them an oath to support the Constitution of the
+United States and the Constitution of the Commonwealth of Pennsylvania,
+attorneys at law were invariably held to be within the provisions of
+Art. 6, sect. 3, of the Constitution of the United States, and of Art.
+8, of the Constitution of Pennsylvania, requiring all officers,
+executive and judicial, to take the oath to support those constitutions
+respectively. In Wood's case (1 Hopkins, 6), solicitors in chancery were
+held to be officers, within the meaning of a similar clause in the
+Constitution of New York. "The admission of an attorney, solicitor, or
+counsellor," says the opinion in that case, "is a general appointment to
+conduct causes before the courts: this station, thus conferred by public
+authority, has its peculiar powers, privileges, and duties, and thus
+becomes an office in the administration of justice." Leigh's case (1
+Munford, 468), in which it was held, that attorneys are not officers,
+within the meaning of the statute of Virginia, requiring all persons
+holding any office, or place, under the commonwealth, to take an oath
+against duelling, does not perhaps conflict with this view. The case of
+Byrne's Admr's _v._ Stewart's Admr's (3 Desaus. 478), may, however, be
+found upon examination somewhat at variance--not the decision itself,
+but the views expressed by Chancellor Watres in his opinion. The case
+simply decided what would seem unquestionable, that the legislature had
+a right to prohibit any public officer, judicial or otherwise, from
+practising as an attorney or solicitor. The Chancellor said, "He (a
+solicitor) can he considered in no other light than that of a private
+agent for the citizens of the country, who may employ him to do their
+legal business in the courts; and although the law requires of him
+certain qualifications, and he receives a license from the judges, yet
+his office is no more a public one, than would be any other profession
+or trade, which the legislature might choose to subject to similar
+regulations, and which is the practice in many other countries. It
+cannot be doubted, that a man's trade or profession is his property; and
+if a law should be passed avowedly for the purpose of restraining any
+member of this bar, who was not a public officer, from exercising his
+profession, I should declare such law void." This is to assume high
+ground; but the idea that a man's profession or trade cannot be
+constitutionally interfered with by legislative enactments, seems
+scarcely tenable, and especially, so far as the profession of the law is
+concerned, in view of the absolute power with which every court is
+clothed, both as to the admission of their attorneys, and forejudging or
+striking them from the roll. Act of 14th April, 1834, s. 73 (Pamphlet
+Laws, 354). Courts of record and of general jurisdiction, are vested
+with exclusive power to regulate the conduct of their own officers, and
+in this respect their decisions are put on the same footing with that
+numerous class of cases, which is wisely confided to the legal
+discretion and judgment of the court, having jurisdiction over the
+subject-matter. Commonwealth _v._ The Judges, 5 Watts & Serg. 272; _Ex
+parte_ Burr, 9 Wheat. 531; _Ex parte_ Brown, 1 Howard (Miss.) Rep. 306;
+Perry _v._ State, 3 Iowa, 550; In the matter of Wills, 1 Mann, 392. "The
+power is one which ought to be exercised with great caution, but which
+is, we think, incidental to all courts, and necessary for the
+preservation of decorum and for the respectability of the profession."
+Marshall C. J. 9 Wheat. 531.
+
+[4] Per Gibson, C. J., in Austin's case, 5 Rawle, 204.
+
+[5] The exact weight of one hundred silver dollars of the old coinage is
+85.9375 ounces; of the new coinage, 80 ounces.
+
+[6] _Ex parte_ Carter, 1 Philada. Rep. 507. Blaike's Lessee _v._
+Chambers, 1 Serg. & Rawle, 169.
+
+[7] Court and juries have their respective spheres assigned to them,
+within which each is to act and move, without encroaching upon the
+jurisdiction or province of the other. In order, then, that jurors as
+well as others may know that the direction and decision of the court, on
+any question of law arising in the course of the trial of an issue of
+fact, is not to be disregarded, and that a verdict given against such
+direction, whatever it may be, can never avail anything, unless it be to
+occasion additional delay, trouble, and expense to the parties, as also
+to the public, the course of the court is to set the verdict aside, and
+to order a new trial. And a court, from whose decisions on questions of
+law, an appeal lies, by writ of error or otherwise, ought never to
+depart from this course; otherwise the party against whom the verdict is
+given loses the benefit of such appeal, and of having the question
+decided by the Appellate Court, which would be a most unjust and illegal
+deprivation of his right. Per Kennedy, J., in Flemming _v._ Marine Ins.
+Co. 4 Whart. 67. After two concurring verdicts against the direction of
+the court in point of law, a new trial will still be awarded.
+Commissioners of Berks County _v._ Ross, 3 Binn. 520. "Principles the
+most firmly established might be overturned, because a second jury were
+obstinate and rash enough to persevere in the errors of the first, in a
+matter confessed by all to be properly within the jurisdiction of the
+court; I mean the construction of the law arising from undisputed
+facts." Per Tilghman, C. J., Ibid. 524. It is not necessary to refer to
+the numerous cases, both in the English and American courts, which
+accord with these principles. A judicious selection of the leading ones
+is to be found in the note to 1 Wharton's Troubat & Haly, 529. The text
+and the note are confined, of course, to civil cases.
+
+[8] Burnet's Life of Sir Matthew Hale, 72.
+
+[9] An attorney is not answerable for every error or mistake; he ought
+not to be liable, in cases of reasonable doubt. Pitt _v._ Yalden, 4
+Burrows, 2060. He shall be protected, when he acts with good faith, and
+to the best of his skill and knowledge. Gilbert _v._ Williams, 8 Mass.
+57. The want of ordinary care and skill in such a person is gross
+negligence. Holmes _v._ Peck, 1 Rhode Island, Rep. 245; Cox _v._
+Sullivan, 7 Georgia, 144; Pennington _v._ Yell, 6 Engl. 212. As between
+the client and the attorney, the responsibility of the latter is as
+great and as strict here as in any country when want of good faith or
+attention to the cause is alleged; but in the exercise of the
+discretionary power usually confided in this country, and especially
+when the client resides at a great distance, an attorney ought not to be
+held liable where he has acted honestly and in a way he thought was for
+the interest of his client. Lynch _v._ The Commonwealth, 16 Serg. &
+Rawle, 368; Stakely _v._ Robison, 10 Casey, 317. When, however, an
+attorney disobeys the lawful instructions of his client, and a loss
+ensues, for that loss the attorney is responsible. Gilbert _v._
+Williams, 8 Mass. 57. If the holder of a note place it in the hands of
+an attorney-at-law, with instructions to bring suit upon it, and the
+attorney, acting under the honest impression that he would best promote
+the interests of his client by not bringing suit immediately, omits to
+do so, and the money is afterwards lost by the insolvency of the maker,
+the attorney is liable in an action against him; and the measure of
+damages is what might have been recovered from the maker of the note, if
+suit had been brought when the note was placed in the hands of the
+attorney for collection. Cox _v._ Livingston, 2 Watts. & Serg. 103;
+Wilcox _v._ Plummer, 4 Peters, 172. But a client has no right to control
+his attorney in the due and orderly conduct of a suit, and it is his
+duty to do what the court would order to be done, though his client
+instruct him otherwise. Anon., 1 Wendell, 108.
+
+[10] An attorney is not compelled to appear for any one unless he takes
+his fee or backs the warrant. Anon., 1 Salk. 87. The attorney cannot
+determine the relation himself, to his client's detriment. Love _v._
+Hall, 3 Yerger, 408. When a solicitor appointed by a party has acted as
+such, he cannot be displaced by the appointment of another, without an
+order of the court. Mumford _v._ Murray, 1 Hopkins, 369. After an
+attorney has entered his name upon the record, he cannot withdraw it
+without leave of the court; and until so withdrawn the service of a
+citation upon him in case of appeal is sufficient. United States _v._
+Curry, 6 Howard, U. S. Rep. 106.
+
+[11] A counsel, attorney, or solicitor, will in no case be permitted,
+even if he should be willing to do so, to divulge any matter which has
+been communicated to him in professional confidence. This is not his
+privilege, but the privilege of the client, and none but the client can
+waive it. Jenkinson _v._ The State, 5 Blackford, 465; Benjamin _v._
+Coventry, 19 Wendell, 353; Parker _v._ Carter, 4 Munf. 273; Wilson _v._
+Troup, 7 Johns. Ch. Rep. 25; Crosby _v._ Berger, 11 Paige, 377; Bank of
+Utica _v._ Mersereau, 3 Barbour Ch. Rep. 528; Aiken _v._ Kilburne, 27
+Maine, 252; Crisler _v._ Garland, 11 Smedes & Marshall, 136; Chew _v._
+The Farmers' Bank of Maryland, 2 Maryland Ch. Decis. 231. It will be
+found in some of these cases that though the counsel declined to be
+engaged for the client, yet the facts communicated were held
+confidential; the only exception recognized being where a purpose to
+perpetrate _in futuro_ a felony or an action _malum in se_ was
+disclosed. Bank of Utica _v._ Mersereau, 3 Barbour Ch. Rep. 377. In
+Moore _v._ Bray, 10 Barr, 519, it was held that communications of the
+object, for which an assignment of a mortgage was made, to a counsel
+concerned for the assignee, were privileged; although no question then
+arose as to the object of the assignment, and the counsel considered the
+communication in the light of a casual conversation. "The circle of
+protection," said Bell, J., "is not so narrow as to exclude
+communications a professional person may deem unimportant to the
+controversy, or the briefest and lightest talk the client may choose to
+indulge with his legal adviser, provided he regards him as such at the
+moment. To found a distinction on such a ground would be to measure the
+safety of the confiding party by the extent of his intelligence and
+knowledge, and to expose to betrayal those very anxieties, which prompt
+those in difficulty, to seek the ear of him in whom they trust in season
+and out of season."
+
+[12] Burnet's Life of Hale, 1 Hale's Works, 59, 60. "He began," says
+Lord Campbell, "with the specious but impracticable rule of never
+pleading except on the right side, which would make the counsel to
+decide without knowing either facts or law, and would put an end to the
+administration of justice." 1 Lord Campbell's Lives of the Chief
+Justices, 412. There is the following curious note by Baxter in Burnet's
+Life of Hale. "And indeed Judge Hale would tell me that Bishop Usher was
+much prejudiced against lawyers because the worst causes find their
+advocates; but that he and Mr. Selden had convinced him of the reasons
+of it to his satisfaction; and that he did by acquaintance with them
+believe that there were as many honest men among lawyers,
+proportionably, as among any profession of men in England (not excepting
+bishops or divines)." 1 Hale's Works, 106.
+
+[13] 2 Wynne's Eunomus, 557.
+
+[14] "Although Serjeants have a monopoly of practice in the Common
+Pleas, they have a right to practice, and do practice, at this bar; and
+if we were to assign one of them as counsel, and he were to refuse to
+act, we should make bold to commit him to prison." Per C. J. Hale. 2
+Campbell's Lives of the Chief Justices, 20; citing Freeman, 389; 2 Lev.
+129; 3 Keble, 424, 439, 440.
+
+[15] Let the circumstances against a prisoner be ever so atrocious, it
+is still the duty of the advocate to see that his client is convicted
+according to those rules and forms which the wisdom of the legislature
+have established, as the best protection of the liberty and security of
+the subject. Professor Christian's note to 4 Blackst. Com. 356. From the
+moment that any advocate can be permitted to say that he _will_ or will
+_not_ stand between the crown and the subject arraigned in the court
+where he daily sits to practise, from that moment the liberties of
+England are at an end. If the advocate refuses to defend from what _he
+may_ think of the charge or of the defence, he assumes the character of
+the judge, nay, he assumes it before the hour of judgment; and in
+proportion to his rank and reputation, puts the heavy influence of
+perhaps a mistaken opinion into the scale against the accused, in whose
+favor the benevolent principle of English law makes all presumptions,
+and which commands the very judge to be his counsel. Lord Erskine, 6
+Campbell's Lives of the Chancellors, 361.
+
+[16] Per Gibson, C. J., in Rush _v._ Cavenaugh, 2 Barr, 189.
+
+[17] "There are many who know not how to defend their causes in
+judgment, and there are many who do, and therefore pleaders are
+necessary; so that that which the plaintiffs or actors cannot or know
+not how to do by themselves, they may do by their serjeants, attorneys,
+or friends." Mirr. of Justices, ch. 2, sec. v.
+
+[18] Rush _v._ Cavenaugh, 2 Barr, 189. If the client in any suit
+furnishes his attorney with a plea which the attorney finds to be false,
+so that he cannot plead it for _the sake of_ his conscience, the
+attorney may plead in this case, _quod non fuit veraciter informatus_,
+and in so doing he does his duty. Jenkins, 52.
+
+[19] Whewell's Elements of Moral and Political Science, vol. 1, p. 257.
+
+[20] Law Magazine, February, 1850, May, 1854. Law Review, February,
+1850. Several articles on the subject, taken from the English press, are
+to be found in Littell's Living Age, vol. 24, pp. 179, 230, 306. I have
+added, in an appendix, Mr. Phillips's vindication of himself from these
+charges, in his correspondence with his friend Mr. Warren, preceded by a
+brief statement of the case.
+
+[21] The civil law will not allow a man to be convicted on his bare
+confession, not corroborated by evidence of his guilt; because there may
+be circumstances which may induce an innocent man to accuse himself.
+Bowyer's Commentaries, 355, note. Upon a simple and plain confession,
+the court hath nothing to do but to award judgment; but it is usually
+very backward in receiving and recording such confession out of
+tenderness to the life of the subject; and will generally advise the
+prisoner to retract it and plead to the indictment. 4 Blackst. Comm.
+329. 2 Hale, P. C. 225.
+
+[22] Per Story, J., in Williams _v._ Read, 3 Mason, 418.
+
+[23] In enumerating the things to which every pleader of others' causes
+ought to have a regard, the Mirror of Justices says, "That he put no
+false dilatories into court, nor false witnesses, nor move or offer any
+false corruptive deceits, leasings, or false lies, nor consent to any
+such, but truly maintain his client's cause, so that it fail not by any
+negligence or default in him, nor by any threatening, hurt, or villany,
+disturb the judge, plaintiff, serjeant, or any other in court, whereby
+he hinder the right or the hearing of the cause." Chap. 2, s. 5. This is
+indeed in the very words of the serjeant's oath, and Lord Coke remarks
+that it consists of four parts: "1. That he shall well and truly serve
+the king's people, as one of the serjeants at law. 2. That he shall
+truly counsel them that he shall be retained with, after his cunning. 3.
+That he shall not defer, wait, or delay their causes willingly for
+covetousness of money, or other thing that may tend to his profit. 4.
+That he shall give due attendance accordingly." 2 Inst. 214.
+
+[24] A pleader is suspendable when he is attainted to have received fees
+of two adversaries, in one cause. Mirror of Justices, chap. 2, sect. 5.
+
+[25] "It is impossible to state a case, in which a witness should be
+treated roughly. If you attempt it, every one feels offended, in the
+person of the witness. You make your work more difficult; the witness
+shuts himself up, considers you as his enemy, and stands upon his
+defence: whereas, an open countenance, and an easy insinuating address,
+unlocks his breast, and disarms him of his caution, if he has any."
+Deinology, 228. This admirable little work, which has been attributed to
+the pen of Lord Erskine, cannot be too highly recommended to the student
+of law. The postscript, which suggests considerations on the _viva voce_
+examination of witnesses, is particularly worthy a very attentive
+perusal.
+
+[26] Preston on Estates, 2.
+
+[27] Co. Litt. 71 _a._
+
+[28] Ibid. 6 _a._
+
+[29] Art. Edward Tilghman, in the Encyclopædia Americana, vol. xiv; The
+Leaders of the Old Bar of Philadelphia, 50. Let me recommend to the
+attention of the student a curious and interesting work, entitled "An
+introduction to the science of the law, showing the advantages of a
+legal education, grounded on the learning of Lord Coke's Commentaries,
+upon Littleton's Tenures, &c., by Frederick Ritso, Esq." There are few
+works of celebrity, in regard to which such opposite opinions have been
+maintained as the Commentaries of Sir William Blackstone. While some
+have expressed the most enthusiastic admiration, there have been others,
+like Mr. Austin, Professor of General Jurisprudence, in the University
+of London (Outlines of Lectures, 63), who have dealt in language of
+unsparing condemnation and contempt. Mr. Ritso thinks that "the error
+was in adopting them as an institute for the instruction and education
+of professional students, which was evidently no part of Blackstone's
+plan, nor within the scope of his engagement." In this point of view, he
+objects, that "he represents everything rather for effect, than with a
+view to demonstrate. Like the gnomon upon the sun-dial, he takes no
+account of any hours, but the serene:
+
+                                    Et quæ,
+    Desperat tractata nitescere posse, relinquit.
+
+In a professional point of view, this solicitude rather to captivate the
+imagination of the student, than to exercise and discipline the
+understanding, is equally unprofitable and inconvenient. It puts him off
+with ornamental illustration, instead of solid argument, and leads to a
+sort of half information, which is often much worse than no information
+at all upon the subject." There is some force in these remarks; yet, too
+many great lawyers have begun their studies with Blackstone, to leave
+any doubt that it is a proper first book. It paves the way for more
+repulsive, though more recondite and valuable works. I very much fear,
+indeed, that a disposition has existed of late years to repudiate Coke
+upon Littleton entirely. Chancellor Kent has shown his leaning in that
+direction (Comm. vol. i, 506, 512). I subscribe fully, however, to Mr.
+Butler's opinion: "He is the best lawyer, and will succeed best in his
+profession, who best understands Coke upon Littleton." It ought not,
+perhaps, to be placed in the hands of the student until he has made some
+progress in his reading of other works: but sooner or later, he should
+aim to master it. Lord Coke was, himself, deeply imbued with the love of
+his profession, and he is able to transfuse his own spirit into his
+readers. His method may be objectionable in some respects; but I cannot
+help thinking that the life of his work is gone when it is hacked to
+pieces, and then attempted to be fitted together again upon another
+man's skeleton. I have ventured to add in the Appendix (No. II), a
+sketch of such a course of reading, of not very extensive compass, as
+may with advantage be pursued by every young man after his admission to
+the Bar.
+
+[30] Maddock's Chancery. Preface.
+
+[31] Bowyer's Headings on the Canon Law, p. 44. Lord Campbell says that
+the person here mentioned was George Hardinge--a Welsh judge and nephew
+of Lord Camden. 5 Lives of the Chancellors, 20, 281. According to Lord
+Mahon, it was on the 15th of March, 1782, in the debate on a motion of
+Sir John Rouse, of want of confidence in the ministry after the
+surrender of Lord Cornwallis. He ascribes the remark to Sir James
+Marriott, but says that, although he was the assertor of this singular
+argument, the honor of its original invention seems rather to belong to
+Mr. Hardinge. 5 Mahon's Hist. 139.
+
+[32] Gibbon's Decline and Fall of the Roman Empire, c. xliv.
+
+[33] Continuus inde et sævus accusandis reis Sicilius, multique audaciæ
+ejus æmuli. Nam cuncta legum et magistratuum munia in se trahens
+Princeps, materiam prædandi patefecerat. Nec quidquam publicæ mercis tam
+venale fuit, quam advocatorum perfidia: adeo ut Samius insignis eques
+Romanus, quadringentis nummorum millibus, Sicilio datis, et cognita
+prevaricatione, ferro in domo ejus incubuerit. Igitur incipiente C.
+Silio consule designato, cujus de potentia et exitio in tempore
+memorabo, consurgunt patres, legemque Cinciam flagitant, qua cavetur
+antiquitus ne quis ob causam orandam pecuniam donumve accipiat. Tacit.
+Annul. 1. 11, c. 5.
+
+[34] Chancellor Walworth, in Adams _v._ Stevens, 26 Wendell, 21. While
+expressing, as will be seen presently, the opinion that authority as
+well as sound policy would have led me to a different conclusion from
+that at which Chancellor Walworth arrived, it is proper to acknowledge
+that I have drawn largely upon his learned judgment in this case, and at
+the same time to express the high admiration I entertain for the ability
+with which the last of the New York Chancellors illustrated the chair
+where such truly great men had sat before him.
+
+[35] Gibbon's Decline and Fall, c. xvii.
+
+[36] 3 Blackst. Com. 28; Davis Pref. 22; 1 Chanc. Rep. 38; Davis, 23;
+Hodgson _v._ Scarlett, 1 B. & Ald. 232; Finch. L. 188; and see Butler's
+note to 1 Co. Litt. 295 a. So it is with the advocates in the civil law.
+Vost ad Pand. tit. de Postal. Numb. 6, 7, 8; Gravina de Oster. lib. 1,
+s. 42, 43, 44. Boucher D'Asyis, Hist. Abrégé de L'Order des Avocats, c.
+iv. See also the commencement of the Dialogue des Avocats du Parl. de
+Paris, by Loisil, which contains curious particulars throughout
+respecting the ancient French Bar. An amusing anecdote is related of
+Pasquier, the famous French advocate. In 1583, while he was attending
+the assizes (_les grands jours_) at Troyes, he sat for his portrait, and
+after the painter had finished the likeness, which Pasquier had not yet
+examined, he asked him to represent him with a book in his hand. The
+painter said that it was too late, as the picture was completed without
+hands. Upon this the witty lawyer immediately wrote the following lines
+as a motto for the portrait:
+
+    Nulla hic Pascasio manus est: Lex Cincia quippe
+    Causidicos nulla sanxit habere manus.
+
+Forsyth's Hortensius, 424.
+
+[37] The reader will find in the Appendix, No. III, an account of the
+different orders of the English Bar.
+
+[38] In some States, the professions of attorney and counsellor at law
+are not distinct; the same person conducts the cause in all its stages;
+and it has not been considered that his authority ceases when judgment
+is obtained. The attorney is in some degree the agent as well as the
+attorney of the party. Huston, J., in Lynch _v._ The Commonwealth, 16
+Serg. & Rawle, 368.
+
+[39] Mooney _v._ Lloyd, 5 Serg. & Rawle, 416.
+
+[40] Hornblower, C. J., in Seeley et al. _v._ Crane, 3 Green, N. J. 35.
+"I shall be sorry to see the honorary character of the fees of
+barristers and physicians done away with. Though it seems to be a
+shadowy distinction, yet I believe it to be beneficial in effect. It
+contributes to preserve the idea of profession, of a class which belongs
+to the public, in the employment and remuneration of which no law
+interferes, but the citizen acts as he likes, '_foro conscientiæ_.'"
+Coleridge's Table Talk, vol. 2.
+
+[41] Gray _v._ Brackenridge, 2 Penna. Rep. 181; Foster _v._ Jack, 4
+Watts, 33. In New Jersey, an advocate's fees are not recoverable at law.
+Shaver _v._ Norris, Penning. 63; Seeley _v._ Crane, 3 Green, 35; Van
+Alter _v._ McKinney's Exrs. 1 Harrison, 236. That the general current of
+decisions is in the opposite direction, will be seen by consulting
+Stevens _v._ Adams, 23 Wendell, 57; S. C. 26 Wendell, 451; Newman _v._
+Washington, Martin & Yerger, 79; Stevens _v._ Monges, 1 Harrington, 127;
+Bayard _v._ McLane, 3 Harrington, 217; Duncan _v._ Beisthaupt, 1 McCord,
+149; Downing _v._ Major, 2 Dana, 228; Christy _v._ Douglas, Wright's Ch.
+Rep. 485; Webb _v._ Hepp, 14 Missouri, 354; Vilas _v._ Downer, 21
+Vermont, 419; Lecatt _v._ Sallee, 3 Porter, 115; Easton _v._ Smith, 1 E.
+D. Smith, 318.
+
+[42] Chancellor Walworth, in Adams _v._ Stevens, 26 Wendell, 451; Foster
+_v._ Jack, 4 Watts, 337.
+
+[43] Senator Verplanck, in Adams _v._ Stevens, 26 Wendell, 451.
+
+[44] Vilas _v._ Downer, 21 Vermont, 419. Responsibility in a
+confidential employment is a legitimate subject of compensation, and in
+proportion to the magnitude of the interests committed to the agent.
+Kentucky Bank _v._ Combs, 7 Barr, 543.
+
+[45] That evidence of usage is admissible to show what is the rule of
+compensation for similar services to those sued for, see Vilas _v._
+Downer, 21 Vermont, 424; Badfish _v._ Fox, 23 Maine, 94.
+
+[46] Concerning the pleader's salary, says the Mirror, chap. 2, sec. 5,
+"four things are to be regarded: 1. The greatness of the cause. 2. The
+pains of the serjeant. 3. His worth, as his learning, eloquence, and
+gift. 4. The usage of the court."
+
+[47] Les lois et les docteurs, les anciennes ordonnances et plusieurs
+anciens arrêts donnent aux avocats une action pour le paiement de leurs
+honoraires: mais, suivant la dernière jurisprudence du Parlement de
+Paris et la discipline actuelle du barreau, ou ne souffre point qu'un
+avocat intente une telle action. 1 Dupin, Profession d'Avocat, 110. Il
+est possible, que l'usage ne soit qu'un préjugé; mais ce préjugé a eu
+une salutaire influence sur la splendeur du barreau Francais. On ne
+prétend pas, en France, qu'un avocat n'a pas droit à un honoraire pour
+prix de ses travaux. Jamais on n'a refusé d'en allouer à ceux qui en ont
+réclamé. Dans plusieurs barreaux, ces réclamations sont même tolerées.
+Mais le barreau de Paris s'est montré plus sévère; et non seulement
+autrefois, mais encore aujourd'hui, tout avocat à la cour qui
+actionnerait un client en paiement d'honoraires serait rayé du tableau.
+Du reste, s'il est defendu d'exiger, il est permis de recevoir tout ce
+que le client veut bien assigner pour prix aux services de son avocat,
+en raison de ses peines et de l'importance des travaux. Ibid. 698.
+
+Les honoraires dus par les parties aux avocats chargés du soin de leur
+défense, ne doivent pas être restraints à la taxe établie par le tarif.
+Cette taxe a pour objet seulement de fixer la somme due par la partie
+qui succombe, et non d'apprecier les soins de l'avocat, appreciation qui
+doit être faite selon l'importance et la difficulté du travail. Ibid.
+699.
+
+[48] Arden _v._ Patterson, 5 Johns. Ch. Rep. 48.
+
+[49] Foster _v._ Jack, 4 Watts, 338, 339.
+
+[50] Clippinger _v._ Hepbaugh, 5 Watts. & Serg. 315; Marshall _v._ The
+Baltimore and Ohio Railroad Co., 16 Howard (S. C.) Rep. 336. That
+champerty is an offence at common law, and that contracts of that
+character, between client and counsel, are void on that ground, and as
+against public policy, will be found to have been maintained in Rust
+_v._ Larue, 4 Litt. 411; Caldwell's Administrators _v._ Shepherd's
+Heirs, 6 Monroe, 391; Thurston _v._ Percival, 1 Pick. 415; Arden _v._
+Patterson, 5 Johns. Ch. Rep. 48; Bleakley's case, 5 Paige, 311; Wallis
+_v._ Loubert, 2 Denio, 607; Backus _v_. Byron, 4 Michigan, 535; Elliott
+_v._ McClelland, 17 Alabama, 206. The cases on the other side, are,
+Thallhimer _v._ Brinckerhoff, 3 Cowen, 643; Ramsay's Devisees _v._
+Trent, 10 B. Monroe, 336; Bayard _v._ McLane, 3 Harrington, 216; Lytle
+_v._ State, 17 Arkansas, 608; Newkirk _v._ Cone, 18 Illinois, 449; Major
+_v._ Gibson, 1 Patton Jr. & Heath (Va.), 48; Wright _v._ Meek, 3 Iowa,
+472. In New York, by the Revised Statutes, it was made an offence,
+punishable by fine or imprisonment, and removal from the Bar, for any
+attorney, counsellor, or solicitor, directly or indirectly to buy, or be
+in any manner interested in buying, or to advance or procure money to be
+advanced upon anything in action, with the intent, or for the purpose of
+bringing any suit thereon. 2 Revised Stat. 386. The Code of Procedure
+appears to have changed the law in this respect, and to enable parties
+to make such bargains as they please with their attorneys. Code of
+Procedure, s. 258; Satterlee _v._ Frazer, 2 Sandf. S. C. Rep. 142;
+Benedict _v_. Stuart, 23 Barb. 420; Ogden _v._ Des Arts, 4 Duer (N. Y.),
+275; Sedgwick _v._ Stanton, 4 Kernan, 289. In Kentucky there appears to
+be a statute, which provides that any one not a party, receiving as
+compensation for services in prosecuting or defending a suit the whole
+or part of the subject-matter in suit, is guilty of champerty, and it
+has been held that this statute extends to attorneys. Davis _v._
+Sharron, 15 B. Monroe, 64. In England, contingent fees are held to be
+clearly within the statutes of champerty and maintenance. Penrice _v._
+Parker, Rep. Temp. Finch, 75.
+
+[51] 2 Wallace, Jr. Rep. 452.
+
+[52] 10 Casey, 299.
+
+[53] Paciscendi quidem ille piraticus mos; et imponentium periculis
+pretia, procul abominanda negotiatio, etiam a mediocriter improbis
+aberit: cum præsertim bonos homines bonasque causas tuenti non sit
+metuendus ingratus, qui si futurus, malo tamen ille peccet. Quinct. Lib.
+xii, c. 7.
+
+[54] Evans _v._ Ellis, 5 Denio, 640; Newman _v._ Payne, 2 Ves. 199;
+Walmsley _v._ Booth, 3 Atk. 25; Montesquieu _v._ Sandys, 18 Ves. 313.
+The doctrine has been fully followed in this country; Stockton _v._
+Ford, 11 How. U. S. 247; Starr _v._ Vanderheyden, 9 Johns. 253; Howell
+_v._ Ransom, 11 Paige, 538; De Rose _v._ Fay, 4 Edw. Ch. 40; Lewis _v._
+J. A., Ibid. 599; Berrien _v._ McLane, 1 Hoffman, Ch. Rep. 424; Miles
+_v._ Ervin, 1 McCord, Ch. Rep. 524; Rose _v._ Mynell, 7 Yerger, 30; Bibb
+_v._ Smith, 1 Dana, 482; Smith _v._ Thompson's Heirs, 7 B. Monroe, 308;
+Jennings _v._ McConnel, 17 Illinois, 148.
+
+An agreement made by a client with his counsel, after the latter had
+been employed in a particular business, by which the original contract
+is varied, and greater compensation is secured to the counsel than may
+have been agreed upon when first retained, is invalid and cannot be
+enforced. Lecatt _v._ Sallee, 3 Porter, 115.
+
+[55] In Foss's Grandeur of the Law, eighty-two existing peerages are
+stated to have sprung from the law. That was in 1843.
+
+[56] Non merum, si ob hanc facultatem homines sæpe etiam non nobiles
+consulatum consecuti sunt: præsertim cum hæc eadem res plurimas gratias,
+firmissimas amicitias, maxima studia pariat. Cic. pro Muræna.
+
+[57] Vivit, vivetque per omnium sæculorum memoriam. Dumque hoc vel forte
+vel providentia vel utcunque constitutum rerum naturæ corpus, quod ille
+pæne solus Romanorum animo vidit, ingenio complexus est, eloquentia
+illuminavit, manebit incolume: comitem ævi sui laudem Ciceronis trahet;
+omnisque posteritas illius in te scripta mirabitur, tuum in eum factum
+execrabitur: citiusque in mundo genus hominum, quam cadet. Vell. Patere.
+L. 2.
+
+[58] Sir William Jones adds to his other claims upon our admiration
+that of a decided partiality to the character and fortunes of our
+American Republics. "The sum of my opinion is," says he, "that while all
+the American people understand the modern art of war, and learn
+jurisprudence by serving in rotation upon grand and petit juries, their
+liberty is secure, and they will certainly flourish most when their
+public affairs are best administered by their Senate and Councils. I
+cannot think a monarchy or an oligarchy _stronger_ in substance,
+whatever they may be in appearance, than a popular government.... I
+shall not die in peace without visiting your United States for a few
+months before the close of the eighteenth century. May I find wisdom and
+goodness in your Senate, arms and judicature, which are power, in your
+commons, and the blessings of wealth and peace equally distributed among
+all." 2 Wynne's Eunomus, 359, note.
+
+[59] Note at p. 47.
+
+[60] Note at p. 75.
+
+
+
+***END OF THE PROJECT GUTENBERG EBOOK AN ESSAY ON PROFESSIONAL ETHICS***
+
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+<h1>The Project Gutenberg eBook, An Essay on Professional Ethics, by George
+Sharswood</h1>
+<pre>
+This eBook is for the use of anyone anywhere at no cost and with
+almost no restrictions whatsoever.  You may copy it, give it away or
+re-use it under the terms of the Project Gutenberg License included
+with this eBook or online at <a href = "http://www.gutenberg.org">www.gutenberg.org</a></pre>
+<p>Title: An Essay on Professional Ethics</p>
+<p>       Second Edition</p>
+<p>Author: George Sharswood</p>
+<p>Release Date: August 20, 2007  [eBook #22359]</p>
+<p>Language: English</p>
+<p>Character set encoding: ISO-8859-1</p>
+<p>***START OF THE PROJECT GUTENBERG EBOOK AN ESSAY ON PROFESSIONAL ETHICS***</p>
+<p>&nbsp;</p>
+<h4>E-text prepared by Marilynda Fraser-Cunliffe, Stephen Blundell,<br />
+    and the Project Gutenberg Online Distributed Proofreading Team<br />
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+      http://www.hti.umich.edu/cgi/t/text/text-idx?c=moa;idno=AJF2351.0001.001</a>
+	</td>
+  </tr>
+</table>
+<p>&nbsp;</p>
+<div class="trans1"><p class="trnhd">Transcriber's Notes</p>
+
+<p>Minor typographical errors have been corrected without note.</p>
+
+<p>A table of contents, though not present in the original, has been
+provided below:</p>
+
+<ul><li><a href="#PREFACE">PREFACE.</a></li>
+<li><a href="#INTRODUCTION">INTRODUCTION.</a></li>
+<li><a href="#PROFESSIONAL_ETHICS">PROFESSIONAL ETHICS.</a></li>
+<li><a href="#APPENDIX">APPENDIX.</a><ul>
+<li><a href="#No_I">No. I.</a></li>
+<li><a href="#No_II">No. II.</a></li>
+<li><a href="#No_III">No. III.</a></li></ul></li></ul>
+</div>
+<hr class="full" />
+<p>&nbsp;</p>
+<p>&nbsp;</p>
+<p>&nbsp;</p>
+
+<p class="trnhd"><big><big>Professional Ethics.</big></big></p>
+
+<hr style="width: 65%;" />
+
+<h1><small>AN ESSAY</small><br />
+<br />
+<small><small><small><i>ON</i></small></small></small><br />
+<br />
+PROFESSIONAL ETHICS.</h1>
+
+<p class="trnhd"><br /><br /><br />BY</p>
+
+<h2>GEORGE SHARSWOOD.<br /><br /><br /></h2>
+
+<p class="blockquot">Id non eo tantum, quod si vis illa dicendi malitiam instruxerit, nihil sit
+publicis privatisque rebus perniciosius eloquentia: sed nos quoque ipsi, qui pro
+virile parte conferre aliquid ad facultatem dicendi conati sumus, pessime mereamur
+de rebus humanis, <span class="smcap">si latroni comparemus h&aelig;c arma, non militi</span>.</p>
+
+<p class="author"><span class="smcap">Quinct. De Inst. Or.</span></p>
+
+<p class="center"><br /><br /><big><b>Second Edition.</b></big><br />
+<br /><br /><br />
+PHILADELPHIA:<br />
+<big>T. &amp; J. W. JOHNSON &amp; CO.,</big><br />
+LAW BOOKSELLERS AND PUBLISHERS,<br />
+<small>NO. 535 CHESTNUT STREET.</small><br />
+1860.<br />
+</p>
+
+<hr style="width: 65%;" />
+
+
+<p class="center"><small>Entered, according to Act of Congress, in the year 1860,<br /><br />
+BY T. &amp; J. W. JOHNSON &amp; CO.,<br /><br />
+In the Clerk's Office of the District Court for the Eastern District of Penn'a.</small></p>
+
+<p>&nbsp;</p>
+
+<p class="center"><small>C. SHERMAN &amp; SON, PRINTERS,<br />
+<i>S. W. Cor. Seventh and Cherry Streets, Philadelphia.</i></small></p>
+
+<hr style="width: 65%;" />
+
+
+<p class="center"><b>TO</b><br />
+<br />
+MY HONORED MASTER,<br />
+<br />
+<big><big>JOSEPH R. INGERSOLL, LL.D.,</big></big><br />
+<br />
+INSCRIBED<br />
+<br />
+<small>AS A<br />
+<br />
+TESTIMONY OF</small><br />
+<br />
+RESPECT AND GRATITUDE.</p>
+
+<hr style="width: 65%;" /><p><span class='pagenum'><a name="Page_vii" id="Page_vii">[Pg vii]</a></span></p>
+<h2><a name="PREFACE" id="PREFACE"></a>PREFACE.</h2>
+
+
+<p>The following Essay was originally published
+under the title of "A Compend of Lectures on
+the Aims and Duties of the Profession of the Law,
+delivered before the Law Class of the University
+of Pennsylvania." A portion of it had been
+read by the author as an Introductory Lecture
+at the opening of the Fifth Session of the Law
+Department of that Institution, October 2d, 1854.
+The young gentlemen, alumni, and students of
+the school, who were present on that occasion,
+requested a copy for publication, in order that
+each of them might possess a memento of their
+connection with the Institution. The author
+preferred to publish the entire Compend than
+merely a part of it. He hesitated much in doing
+so, because the questions discussed are difficult,
+and opinions upon them variant, and he could
+scarcely hope that he had in every case succeeded
+in just discrimination. A review of the matter<span class='pagenum'><a name="Page_viii" id="Page_viii">[Pg viii]</a></span>
+now, when a second edition has been called for,
+has suggested, however, no important change in
+the principles advanced, though a few additions
+have been made, some inaccuracies corrected, and
+an introduction upon the importance of the profession,
+in a public point of view, prefixed.</p>
+
+<p class="author">G. S.</p>
+
+
+
+<hr style="width: 65%;" /><p><span class='pagenum'><a name="Page_ix" id="Page_ix">[Pg ix]</a></span></p>
+<h2><a name="INTRODUCTION" id="INTRODUCTION"></a>INTRODUCTION.</h2>
+
+
+<p>The dignity and importance of the Profession
+of the Law, in a public point of view, can
+hardly be over-estimated. It is in its relation
+to society at large that it is proposed to consider
+it. This may be done by showing its
+influence upon legislation and jurisprudence.
+These are the right and left hands of government
+in carrying out the great purposes of
+society. By legislation is meant the making
+of law&mdash;its primary enactment or subsequent
+alteration. Jurisprudence is the science of
+what the law is or means, and its practical application
+to cases as they arise. The province
+of legislation is <i>jus dare</i>&mdash;of jurisprudence, <i>jus</i><span class='pagenum'><a name="Page_x" id="Page_x">[Pg x]</a></span>
+<i>dicere</i>. The latter is entirely in the hands of
+lawyers as a body&mdash;the former almost entirely.</p>
+
+<p>Legislation is indeed a nobler work than
+even jurisprudence. It is the noblest work in
+which the intellectual powers of man can be
+engaged, as it resembles most nearly the work
+of the Deity. It is employed as well in determining
+what is right or wrong in itself&mdash;the
+due proportion of injuries and their remedies
+or punishments&mdash;as in enforcing what is useful
+and expedient. How wide the scope of such
+a work! The power of society over its individual
+members, or, in other words, sovereignty,
+which is practically vested in the legislature,
+is a type of the Divine power which rules
+the physical and moral universe. "There is
+one Lawgiver," says the Apostle James. Not
+that the Supreme Being is the sole universal
+lawgiver in the sense of a creator of law,
+whose will alone determines the boundaries of
+right and wrong. God is the creator of the
+beings who are the subjects of law. He is the
+author of law&mdash;the one lawgiver&mdash;in the same
+sense that he, who first discovered a plain figure,<span class='pagenum'><a name="Page_xi" id="Page_xi">[Pg xi]</a></span>
+may be said to be the author of all theorems,
+which may be predicated of it. He who first
+called attention to the curious curve, made by
+a point in the periphery of a wheel as it turns
+on the ground, is in a certain sense the discoverer
+of all the truths, which may be mathematically
+demonstrated in respect to it.</p>
+
+<p>Law in its true sense is not the work of
+mere will&mdash;not an act of intellectual caprice.
+It is a severe and necessary deduction from the
+relations of things. The Divine legislator sees
+and knows these relations perfectly. He can
+draw no wrong deduction from them. He can
+make no mistake. Whatever laws have certainly
+emanated from Him are certainly right.
+This is the sense in which it is true that
+"there is one Lawgiver:" all others but attempt
+the work; He alone is competent to
+perform it. There is no mathematical certainty
+in our reasoning on moral as there is on physical
+relations. We know that the three angles
+of a triangle are equal to two right angles with
+an assurance we can never have in regard to
+any moral truth whatever. The Divine law<span class='pagenum'><a name="Page_xii" id="Page_xii">[Pg xii]</a></span>
+is a deduction necessarily and mathematically
+certain as much so as any truth in geometry.
+Human law can aim only at such a probable
+deduction as results from a finite and imperfect
+knowledge.</p>
+
+<p>The system of law delivered by Moses to
+the Jews deserves, therefore, the most careful
+study at the hands of all who believe him to
+have been a divinely commissioned lawgiver.
+These laws were not intended for any other
+people than the Israelites; they were adapted
+to their circumstances, climate, country, neighbors,
+to the period of the world when they
+were promulgated, and during which they were
+to prevail. They were certainly not meant as
+a model for any other form of government, for
+any other people, or for any other time. Many
+laws are to be found there which are unnecessary
+and superfluous if applied elsewhere.
+Many actions, innocent in themselves, are prohibited.
+All the <i>mala prohibita</i> are not <i>mala
+in se</i>. But one thing is as clear as a sunbeam,
+and that is a very important light to the student
+of Ethics; if God was the author of these<span class='pagenum'><a name="Page_xiii" id="Page_xiii">[Pg xiii]</a></span>
+laws, nothing morally wrong was commanded
+or allowed by them. When it was said of the
+Jews through the prophet, "I gave them statutes
+which were not good," it cannot mean not
+morally good; laws which it would be sinful
+in them to obey. The word in the original is
+not the word appropriated in that language to
+right, conformity to rule, but to goodness in
+its most general sense. Good statutes mean
+wise and expedient statutes. By no process
+can the logical mind be brought to the conclusion
+that the perfectly wise and good lawgiver,
+in framing a code of laws for any people, would
+impose as a punishment "for the hardness of
+their hearts," a penalty, submission to which
+would itself be punishable as a sin against the
+law of nature. He might command or allow
+as such punishment what in itself was inexpedient
+and injurious to them, and which upon
+the promulgation of a new law repealing the
+old and prohibiting what it allowed, would become
+by the sanction of the same lawgiver
+thenceforth universally <i>malum prohibitum</i>. The
+authority of God as a lawgiver is certainly not<span class='pagenum'><a name="Page_xiv" id="Page_xiv">[Pg xiv]</a></span>
+confined to a mere declaration of what is right
+or wrong by the law of Nature.</p>
+
+<p>There can be no merely arbitrary laws. It
+is necessary to bear in mind that we are now
+considering the province of the legislator, who
+ought to enact no law without an end. "Civil
+legislative power," says Rutherforth (B. II, c.
+vi, s. 10), "is not in the strict sense of the
+word an absolute power of restraining or altering
+the rights of the subjects: it is limited in
+its own nature to its proper objects, to those
+rights only in which the common good of the
+society or of its several parts requires some
+restraint or alteration. So that whenever we
+call the civil legislative power, either of society
+in general or of a particular legislative body
+within any society, an absolute legislative
+power, we can only mean that it has no external
+check upon it in fact; for all civil legislative
+power is in its own nature under an internal
+check of right: it is a power of restraining
+or altering the rights of the subjects for the
+purpose of advancing or securing the general
+good, and not of restraining or altering them<span class='pagenum'><a name="Page_xv" id="Page_xv">[Pg xv]</a></span>
+for any purpose whatever, and much less for no
+purpose at all." There are, therefore, no arbitrary
+laws which fulfil the end of law. Doubtless
+the true objects of society and government
+may be mistaken by him who sets up to be
+law-maker, or if those objects are properly
+appreciated, the means for advancing them may
+be mistaken. It is not wonderful that in a
+matter which demands the highest wisdom,
+many should try and fail.</p>
+
+<p>It becomes important to inquire what are
+the true ends of society and government?
+Man is a gregarious animal&mdash;a social being.
+He may exist in solitude, but he cannot enjoy
+life: he cannot perfect his nature. Those who
+have watched and studied closely the habits of
+those irrational animals, who live in communities,
+as the ant, the bee, and the beaver,
+have observed not only a settled system and
+subordination, but the existence of some wonderful
+faculty, like articulate speech, by which
+communication takes place from one to another;
+a power essential to order. Man, the highest<span class='pagenum'><a name="Page_xvi" id="Page_xvi">[Pg xvi]</a></span>
+social animal in the scale of earthly being, has
+also the noblest faculty of communication.</p>
+
+<p>The final cause&mdash;the reason why man was
+made a social being&mdash;is that society was necessary
+to the perfection of his physical, intellectual,
+and moral powers, in order to give the
+fullest return to the labor of his hands and to
+secure the greatest advances in knowledge and
+wisdom. It is for no vain national power or
+glory, for no experimental abstraction, that
+governments are instituted among men. It is
+for man as an individual. It is to promote his
+development; and in that consists his true
+happiness. The proposition would be still
+more accurate were it said, society is constituted
+that men may be free&mdash;free to develop
+themselves&mdash;free to seek their own happiness,
+following their own instincts or conclusions.
+Without society&mdash;and government, which of
+course results from it&mdash;men would not be free.
+An individual in a state of isolation might
+defend himself from savage beasts, and more
+savage men, as long as his strength lasted, but
+when sickness or age came on, the product of<span class='pagenum'><a name="Page_xvii" id="Page_xvii">[Pg xvii]</a></span>
+the labor of his hands, accumulated by a wise
+foresight to meet such a contingency, would
+become the prey of the stronger. The comparatively
+weak-minded and ignorant would be
+constantly subject to the frauds of the more
+cunning.</p>
+
+<p>It is enough to look at the effects of the
+division of employments and the invention of
+labor-saving machinery, to recognize the invaluable
+results of society in the development of
+wealth and power. In a state of isolation a
+man's entire time and strength would be needed
+for the supply of his physical wants. As men
+advance in knowledge and wisdom the standard
+of their mere physical wants is elevated.
+They demand more spacious and comfortable
+dwellings, more delicate viands and finer
+clothing.</p>
+
+<div class="poem"><div class="stanza">
+<span class="i0">"Allow not nature more than nature needs,<br /></span>
+<span class="i0">Man's life is cheap as beasts'."<br /></span>
+</div></div>
+
+<p>It is not true that men would be morally better
+or happier, if their style of living were
+reduced to the greatest plainness consistent<span class='pagenum'><a name="Page_xviii" id="Page_xviii">[Pg xviii]</a></span>
+with bare comfort. Our taste in this respect,
+as for the fine arts, as it becomes more refined,
+becomes more susceptible of high enjoyment.
+When large fortunes are suddenly made by
+gambling, or what is equivalent thereto, then
+it is that baleful luxury is introduced&mdash;a style
+of living beyond the means of those who adopt
+it, and spreading through all classes. Taste,
+cultivated and enjoyed at the expense of morals,
+degrades and debases instead of purifying and
+elevating character. Men, who have accumulated
+wealth slowly by labor of mind or body,
+do not spend it extravagantly. If they use it
+liberally, that creates no envy in their poorer
+neighbor, no ruinous effort to equal what is
+recognized to be the due reward of industry
+and economy. The luxury, which corrupted
+and destroyed the republic of Rome, was the
+result of large fortunes suddenly acquired by
+the plunder of provinces, the conquests of
+unjust wars. The most fruitful source of it, in
+our own day, is what has been well termed
+<i>class legislation</i>&mdash;laws which either directly or
+indirectly are meant to favor particular classes<span class='pagenum'><a name="Page_xix" id="Page_xix">[Pg xix]</a></span>
+of the community. They are supported by
+popular reasons and specious arguments, yet
+there is one test of the true character of such
+laws, an <i>experimentum crucis</i>, of which, in
+general, they cannot bear the application.
+Legislation, which requires or which will pay
+to be bored or bought, is unequal legislation;
+and therefore unwise and unjust. Bentham's
+rule, though false as the standard of right
+and wrong, is in general the true rule of
+practical legislation, the greatest good of the
+greatest number. It is expressed with the
+most force and accuracy by that master of the
+science, Bynkershoek; <i>Utilitas, utilitas, justi</i>
+<span class="smcap">prope</span> <i>mater et &aelig;qui</i>: in which observe that
+the word <i>prope</i> is emphatic. Legislation for
+classes violates this plain rule of equal justice,
+and moreover does not, in the long run, benefit
+those for whom it is intended. The indirect
+evils upon society at large are even more
+injurious than those which are direct. Men
+are often thus poor to-day and rich to-morrow.
+The bubble, while it dances in the sunbeam,
+glitters with golden hues, though destined<span class='pagenum'><a name="Page_xx" id="Page_xx">[Pg xx]</a></span>
+almost immediately to burst and be seen no
+more.</p>
+
+<p>What government owes to society, and all
+it owes, is the impartial administration of equal
+and just laws. This produces security of life,
+of liberty, and of property. It has become a
+favorite maxim, that it is the duty of government
+to promote the happiness of the people.
+The phrase may be interpreted so as to mean
+well, but it is a very inaccurate and unhappy
+one. It is the inalienable right of men to pursue
+their <i>own</i> happiness; each man under such
+restraints of law as will leave every other man
+equally free to do the same. The true and
+only true object of government is to secure
+this right. The happiness of the people is the
+happiness of the individuals who compose the
+mass. Speaking now with reference to those
+objects only, which human laws can reach
+and influence, he is the happy man, who sees
+his condition in life constantly and gradually,
+though it may be slowly, improving. Let
+government keep its hands off&mdash;do nothing in
+the way of creating the subject-matter of<span class='pagenum'><a name="Page_xxi" id="Page_xxi">[Pg xxi]</a></span>
+speculation&mdash;and things naturally fall into this
+channel. There will be some speculators, as
+there will be some gamblers; but they will be
+few. The stock market is filled with fancies,
+which the government has manufactured and
+continues to manufacture to order. It is the
+duty of government to encourage the accumulation
+of the savings of industry. The best
+way to do so is to guard the strong box from the
+invasion of others, and not itself to invade it.
+Property has an especial claim to protection
+against the government itself. The power of
+taxation in the legislature is in fact a part
+of the <i>eminent domain</i>; a power that must
+necessarily be reposed in the discretion of every
+government to furnish the means of its own
+existence. One grievous invasion of property&mdash;and
+of course ultimately of labor, from
+whose accumulations all property grows&mdash;is
+by government itself, in the shape of taxation
+for objects not necessary for the common defence
+and general welfare. Men have a right
+not only to be well governed, but to be cheaply
+governed&mdash;as cheaply as is consistent with the<span class='pagenum'><a name="Page_xxii" id="Page_xxii">[Pg xxii]</a></span>
+due maintenance of that security, for which
+society was formed and government instituted.
+This, the sole legitimate end and object of law,
+is never to be lost sight of&mdash;security to men in
+the free enjoyment and development of their
+capacities for happiness&mdash;<span class="smcap">security</span>&mdash;nothing
+less&mdash;but nothing more. To compel men to
+contribute of the earnings or accumulations of
+industry, their own or inherited, to objects
+beyond this, not within the legitimate sphere
+of legislation, to appropriate the money in the
+public treasury to such objects, is a perversion
+and abuse of the powers of government,
+little if anything short of legalized robbery.
+What is the true province of legislation, ought
+to be better understood. It is worth while to
+remark, that in every new and amended State
+constitution, the bill of rights spreads over a
+larger space; new as well as more stringent
+restrictions are placed upon legislation. There
+is no danger of this being carried too far; as
+Chancellor Kent appears to have apprehended
+that it might be. There is not much danger
+of erring upon the side of too little law. The<span class='pagenum'><a name="Page_xxiii" id="Page_xxiii">[Pg xxiii]</a></span>
+world is notoriously too much governed. Legislators
+almost invariably aim at accomplishing
+too much. Representative democracies,
+so far from being exempt from this vice,
+are from their nature peculiarly liable to it.
+Annual legislatures&mdash;with generally two-thirds
+new members every year&mdash;increase the evil.
+The members fall into the common mistake,
+that their commission is to act, not to decide
+in the first place whether action is necessary.
+They would be blamed and ridiculed, if they
+adjourned without doing something important.
+Hence the annual volumes of our Acts of Assembly
+are fearfully growing in bulk. It is
+not merely of the extent of local legislation,
+the vast multiplication of charters for every
+imaginable purpose, or of the constantly recurring
+tampering with the most general subjects
+of interest, finance, revenue, banking,
+education, pauperism, &amp;c., that there is reason
+to complain; but scarce a session of one
+of our legislatures passes without rash and ill-considered
+alterations in the civil code, vitally
+affecting private rights and relations. Such<span class='pagenum'><a name="Page_xxiv" id="Page_xxiv">[Pg xxiv]</a></span>
+laws are frequently urged by men, having
+causes pending, who dare not boldly ask that
+a law should be made for their particular case,
+but who do not hesitate to impose upon the
+legislature by plausible arguments the adoption
+of some general rule, which by a retrospective
+construction, will have the same operation.
+It is a most monstrous practice, which
+lawyers are bound by the true spirit of their
+oath of office, and by a comprehensive view of
+their duty to the Constitution and laws, which
+they bear so large a part as well in making as
+administering, to discountenance and prevent.
+It is to be feared, that sometimes it is the
+counsel of the party who recommends and
+carefully frames the bill, which, when enacted
+into a law, is legislatively to decide the cause.
+It is time that a resort to such a measure
+should be regarded in public estimation as a
+flagrant case of professional infidelity and misconduct.</p>
+
+<p>This brief sketch of the true province of
+legislation is enough to evince its vast importance.
+How great is the influence of the lawyers<span class='pagenum'><a name="Page_xxv" id="Page_xxv">[Pg xxv]</a></span>
+as a class upon legislation! Let any man
+look upon all that has been done in this department,
+and trace it to its sources. He will
+acknowledge that legislation, good or bad,
+springs from the Bar. There is in this country
+no class of lawyers confined to the mere business
+of the profession&mdash;no mere attorneys&mdash;no
+mere special pleaders&mdash;no mere solicitors in
+Chancery&mdash;no mere conveyancers. However
+more accurate and profound may be the learning
+of men, whose studies are thus limited to
+one particular branch, it is not to be regretted
+either on account of its influence on the science
+or the profession. The American lawyer, considering
+the compass of his varied duties, and
+the probable call which will be made on him
+especially to enter the halls of legislation, must
+be a Jurist. From the ranks of the Bar, more
+frequently than from any other profession, are
+men called to fill the highest public stations in
+the service of the country, at home and abroad.
+The American lawyer must thus extend his
+researches into all parts of the science, which
+has for its object human government and law:<span class='pagenum'><a name="Page_xxvi" id="Page_xxvi">[Pg xxvi]</a></span>
+he must study it in its grand outlines as well
+as in the filling up of details. He is as frequently
+called upon to inquire what the law
+ought to be as what it is. While a broad and
+marked line separates, and always ought to
+separate the departments of Legislation and
+Jurisprudence, it is a benefit to both that the
+same class of men should be engaged in both.
+Practice will thus be liberalized by theory, and
+theory restrained and corrected by practice.
+The mere abstractionist or <i>doctrinaire</i> would
+aim at the formation of a code of great simplicity:
+the practitioner sees in it the parent of
+uncertainty and injustice. Legal propositions
+cannot be framed with the certainty of mathematical
+theories. The most carefully studied
+language still leaves room for interpretation
+and construction. Time itself, which works
+such mighty changes in all things, produces a
+state of circumstances not in the mind of the
+lawgiver. The existing system, it may be, is
+an unwieldy, inconvenient structure, heavy and
+grotesque from the mixed character of its
+architecture outwardly, inwardly its space too<span class='pagenum'><a name="Page_xxvii" id="Page_xxvii">[Pg xxvii]</a></span>
+much occupied and its inmates embarrassed by
+passages and circuities. The abstractionist
+would at once demolish it, and replace it by a
+light, commodious and airy dwelling, more
+symmetrical and chaste in its appearance,
+better fitted for the comfort and usefulness of
+its inhabitants. The practitioner, who has
+become familiar with it, who observes and
+admires that silent legislation of the people,
+which shows itself not on the pages of the
+statute book, and receives its recognition in
+courts of justice only after it has ceased to
+need even that to give it form and vitality,
+and who understands, therefore, how, with
+little inconvenience, it is made to accommodate
+itself to every change of condition, sits down
+to a careful calculation of the cost and risk of
+such wholesale change. History and practical
+experience, alike, suggest to him, that the
+structure is a castle as well as a dwelling, a
+place for security as well as comfort; that its
+foundations have been laid deeply on the solid
+rock&mdash;its masonry more firmly knit together
+by the time it has endured. Yet he will not<span class='pagenum'><a name="Page_xxviii" id="Page_xxviii">[Pg xxviii]</a></span>
+deny that what can be done consistently with
+security ought to be done. It is worse than in
+vain to oppose all amendment. It will break
+down every artificial barrier that may be reared
+against it, if it be not quietly and wisely directed
+in those channels which it seeks at the
+least expense to security and stability. Surely
+it is not conceding too much to this spirit to
+admit, that laws should be composed in accurate
+but perspicuous language, without redundancy
+of words or involution of sentences;
+that the policy of public measures should not
+be wrapt up in the folds of State mystery; and
+that all legislation should be based upon the
+principle of leaving the greatest liberty of
+private judgment and action, consistent with
+public peace and private security. A blind
+attachment to principles of jurisprudence or
+rules of law because they are ancient, when
+the advancement of the useful arts, the new
+combinations of trade and business, and the
+influence of more rapid and general intercourse
+demand their repeal or modification, is as much
+to be deprecated as rash innovation and unceasing<span class='pagenum'><a name="Page_xxix" id="Page_xxix">[Pg xxix]</a></span>
+experiment. Indeed it scarcely ever fails
+to defeat its own end, and though it may
+retard for a while, renders the course of reform
+more destructive than it otherwise would have
+been. True conservatism is gradualism&mdash;the
+movement onward by slow, cautious, and firm
+steps&mdash;but still movement, and that onward.
+The world, neither physically, intellectually,
+nor morally, was made to stand still. As in
+her daily revolutions on her own axis as well
+as her annual orbit round the sun, she never
+returns precisely to the same point in space
+which she has ever before occupied, it would
+seem to be the lesson which the Great Author
+of all Being would most deeply impress upon
+mind as he has written it upon matter; "by
+ceaseless motion all that is subsists."</p>
+
+<p>What has thus been very cursorily presented
+will evince that it is the province of legislation,
+by slow and cautious steps, to amend the
+laws, to render them more equal in their operation
+upon all classes, not favoring the rich
+more than the poor, nor one class of either
+more than another, providing an easy, cheap,<span class='pagenum'><a name="Page_xxx" id="Page_xxx">[Pg xxx]</a></span>
+and expeditious administration of justice by
+tribunals, whose learning and impartiality shall
+be so secured as to possess the confidence of
+the community, and by general rules for the
+regulation of conduct and the distribution of
+estates most conformed to the analogies of that
+system, which is familiar to the people in their
+common law.</p>
+
+<p>Great as is the influence which the profession
+of the law can and does exercise upon the
+legislation of a country, the actual administration
+of law is entirely in their hands. To
+a large extent by private counsel, by the publication
+of works of research and learning,
+by arguments in courts of justice to assist
+those who are to determine what is the law, and
+to apply it to the facts, as well as in the actual
+exercise of judicature, this whole important
+province of government, which comes home so
+nearly to every man's fireside, is intrusted
+necessarily to lawyers.</p>
+
+<p>In this country we live under the protection
+of written constitutions; not only so, but
+written constitutions, which have assumed to<span class='pagenum'><a name="Page_xxxi" id="Page_xxxi">[Pg xxxi]</a></span>
+place limits upon the power of majorities, acting
+at least through their ordinary representatives.
+The construction of these constitutions,
+or constitutional law as it is termed, forms a
+very important branch of American jurisprudence.
+There have been, and are, in other
+countries, charters, written or unwritten&mdash;organic
+or fundamental laws&mdash;but without this
+distinguishing feature. The fundamental laws,
+thus established in point of fact, emanate from
+the government, and have no sanction beyond
+the oath of those intrusted with the administration
+of them, the force of public opinion, and
+the responsibility of the representative to his
+constituent. Our constitutions emanate not
+from the government, but the State, the society,
+the creator of the government; and are, therefore,
+in the strictest sense of the words, <i>leges
+legum</i>. The radical principle of our system is,
+that the act of the legislative body, beyond or
+contrary to the power confided to it by the
+Constitution, is a nullity, and absolutely void.
+The courts must so pronounce, and the executive
+must execute their judgments with the<span class='pagenum'><a name="Page_xxxii" id="Page_xxxii">[Pg xxxii]</a></span>
+whole force of the State. Upon such a subject
+it is best to use the very language&mdash;the <i>ipsissima
+verba</i>&mdash;of John Marshall, as, at the same
+time, expressing the doctrine with the greatest
+force and perspicuity, and presenting, in the
+mere statement, the most convincing argument
+of its importance. "It is emphatically the
+province and duty of the judicial department
+to say what the law is. Those who apply the
+rule to particular cases, must, of necessity, expound
+and interpret that rule. If two laws
+conflict with each other, the courts must decide
+on the operation of each. So if a law be
+in opposition to the Constitution; if both the
+law and the Constitution apply to a particular
+case, so that the court must either decide that
+case conformably to the law, disregarding the
+Constitution, or conformably to the Constitution,
+disregarding the law: the court must
+determine which of these conflicting rules
+governs the case. This is of the very essence
+of judicial duty. If, then, the courts are to
+regard the Constitution, and the Constitution
+is superior to any ordinary act of the legislature,
+the Constitution, and not such ordinary<span class='pagenum'><a name="Page_xxxiii" id="Page_xxxiii">[Pg xxxiii]</a></span>
+act, must govern the case to which they both
+apply. Those, then, who controvert the principle
+that the Constitution is to be considered
+in court as a paramount law, are reduced to
+the necessity of maintaining that courts must
+close their eyes on the Constitution and see
+only the law. This doctrine would subvert
+the very foundation of all written constitutions.
+It would declare that an act,
+which, according to the principles and theory
+of our government, is entirely void, is
+yet, in practice, completely obligatory. It
+would declare that, if the legislature shall do
+what is expressly forbidden, such act, notwithstanding
+the express prohibition, is, in reality,
+effectual. It would be giving to the legislature
+a practical and real omnipotence with
+the same breath which professes to restrict
+their powers within narrow limits. It is prescribing
+limits, and declaring that those limits
+may be passed at pleasure." (Marbury <i>v.</i> Madison,
+1 Cranch, 177.) More weighty words
+than these have never, speaking of human
+things, fallen from the lips of man: weighty in
+themselves from their own simple but eloquent<span class='pagenum'><a name="Page_xxxiv" id="Page_xxxiv">[Pg xxxiv]</a></span>
+conclusiveness&mdash;weightier still from their unspeakable
+importance, the immeasurable influence
+they have had, and, it is to be hoped, will
+ever continue to have, upon the destinies of
+the United States of America. The judiciary
+department, though originating nothing, but
+acting only when invoked by parties in the prosecution
+of their rights, is thus necessarily an
+important political branch of the government.
+That department spreads the broad and impregnable
+shield of its protection over the life,
+limbs, liberty, and property of the citizen, when
+invaded even by the will of the majority. Our
+Bills of Rights are, therefore, not mere enunciations
+of abstract principles, but solemn enactments
+by the people themselves, guarded
+by a sufficient sanction. They have not, perhaps,
+as yet, carried far enough their provisions
+for the security of property from the unjust
+action of government. The obligation of contracts
+has been declared sacred; the right of
+eminent domain restricted by the provision for
+compensation. Yet, even as to contracts, the
+legislature may still exercise dangerous powers
+over the remedy, short of taking it away<span class='pagenum'><a name="Page_xxxv" id="Page_xxxv">[Pg xxxv]</a></span>
+entirely, and over the rules of evidence. As
+to eminent domain, they possess an undefined
+right to determine the time and manner of
+ascertaining the compensation. Our constitutions
+are frequently undergoing revision; and
+too much care cannot be exercised to strengthen
+our securities in this quarter. Personal liberty,
+trial by jury, the elective and other political
+franchises, liberty of conscience, of speech
+and of the press, are able to protect themselves
+in a great measure from their own democratic
+affinities. It is true, that there really is no
+difference between wresting from a man the
+few dollars, the products or savings of his industry
+for any period of time, and depriving
+him of his liberty, or chaining him to a log,
+to work for another during the same period.
+Property eminently stands in need of every
+parchment barrier, which has been or can be
+thrown around it. An eminent Judge in our
+own State once threw out the opinion that
+there existed in the Constitution no disaffirmance
+of the power of the legislature to take
+the property of an individual for <i>private uses</i><span class='pagenum'><a name="Page_xxxvi" id="Page_xxxvi">[Pg xxxvi]</a></span>
+with or without compensation. "The clause,"
+he argued, "by which it is declared that no
+man's property shall be taken or applied to
+<i>public</i> use, without compensation made, is a
+disabling, not an enabling one, and the right
+would have existed in full force without it."
+(Harvey <i>v.</i> Thomas, 10 Watts, 63.) Fortunately,
+the decision of the court in that case
+did not require a resort to that reasoning, and
+but little examination was sufficient to satisfy
+the mind that this <i>obiter dictum</i> was unsustained
+by either principle or authority. A
+power in the legislature to take the property
+of A. and give it to B. directly, would be of
+the very essence of despotism. When it is
+declared in the Bill of Rights that no man
+shall be deprived of his life, liberty, or property,
+unless by the judgment of his peers, or
+the law of the land, this phrase, "law of the
+land," does not mean merely an act of the
+legislature. If it did, every restriction upon
+the legislative department would be practically
+abrogated. By an authority as old as Lord
+Coke, in commenting upon these same words<span class='pagenum'><a name="Page_xxxvii" id="Page_xxxvii">[Pg xxxvii]</a></span>
+in <i>Magna Charta</i>, they are to be rendered
+"without due process of law: that is, by indictment
+or presentment of good and lawful
+men, when such deeds be done in due manner,
+or by writ original of the common law, without
+being brought into answer but by due
+process of the common law." (2 Inst. 50.)
+The American laws are numerous and uniform
+to the point (see 1 American Law Mag. 315);
+and the same eminent Judge, to whom reference
+has been made in a later case, declared his
+adhesion to the sound and true doctrine in the
+most emphatic language, without noticing his
+own previous <i>dictum</i> to the contrary. "It was
+deemed necessary," said he, "to insert a special
+provision in the Constitution to enable them
+(the legislature) to take private property even
+for public use, and on compensation made;
+but it was not deemed necessary to disable
+them specially in regard to taking the property
+of an individual, with or without compensation,
+in order to give it to another, not only
+because the general provision in the Bill of
+Rights was deemed sufficiently explicit for<span class='pagenum'><a name="Page_xxxviii" id="Page_xxxviii">[Pg xxxviii]</a></span>
+that, but because it was expected that no
+legislature would be so regardless of right as
+to attempt it. Were this reasonable expectation
+to be disappointed, it would become our
+plain and imperative duty to obey the immediate
+and paramount will of the people, expressed
+by their voices in the adoption of the
+Constitution, rather than the repugnant will
+of their delegates acting under a restricted but
+transcended authority." (Norman <i>v.</i> Heist, 5
+W. &amp; S. 171.)</p>
+
+<p>Yet, while the right of private property
+cannot be thus directly invaded, its security
+against the acts of the legislature is not as
+perfect as it might and ought to be made. The
+legislature must be allowed a large discretion
+in judging what is a public use: on that pretext
+much may be brought within its sweep
+unjustly, and the courts, in the absence of a
+constitutional rule, would be embarrassed in
+defining its limits. Experience has shown that
+much power to do wrong lurks under grants
+by no means essential to the public good.
+Besides what has been before referred to, the<span class='pagenum'><a name="Page_xxxix" id="Page_xxxix">[Pg xxxix]</a></span>
+assumption of judicial functions by the Legislature
+and the broad field of Chancery jurisdiction
+over trust estates, which it has been
+held that they may exercise immediately, if
+they see fit, instead of vesting them in appropriate
+tribunals, are fraught with serious
+danger. The proneness of bodies so constituted
+to disembarrass themselves of the ordinary
+rules of evidence, to act upon <i>ex parte</i>
+statements and testimony imperfectly authenticated,
+as well as the absence of all legal forms
+from their proceedings, and their numbers,
+among whom the responsibility of giving due
+attention to the case is divided, add to the
+peril. The power of legislating retrospectively
+has far too wide a scope; the constitutional
+inhibition of <i>ex post facto</i> laws having been
+construed to apply to criminal or penal cases
+merely, restraining the legislature from
+making that an offence which was not so at
+the time of its commission, or increasing the
+punishment annexed to it. The course of
+legislation in this country amply demonstrates
+the wisdom, and even necessity, of extending<span class='pagenum'><a name="Page_xl" id="Page_xl">[Pg xl]</a></span>
+the same prohibition to civil cases. There is
+no particular or partial inconvenience, which
+could outweigh the general benefits of a provision
+that no law, public or private, should
+operate retrospectively upon past acts; that
+the judgment of the tribunals upon every case
+should be according to the law as it was at the
+time of the transaction, which the parties
+were bound to know, and in accordance with
+which they are to be presumed to have acted.</p>
+
+<p>As well in the domain of public as of private
+law, the great fundamental principle for judge
+and counsellor ought to be, <span class="smcap">that authority is
+sacred</span>. There is no inconvenience so great,
+no private hardship so imperative, as to justify
+the application of a different rule to the resolution
+of a case, than the existing state of the
+law will warrant. "There is not a line from
+his pen," says Mr. Binney of Chief Justice
+Tilghman, "that trifles with the sacred deposit
+in his hands by claiming to fashion it according
+to a private opinion of what it ought to be.
+Judicial legislation he abhorred, I should
+rather say, <i>dreaded</i>, as an implication of his<span class='pagenum'><a name="Page_xli" id="Page_xli">[Pg xli]</a></span>
+conscience. His first inquiry in every case
+was of the oracles of the law for their response;
+and when he obtained it, notwithstanding his
+clear perception of the justice of the cause,
+and his intense desire to reach it, if it was not
+the justice of the law, he dared not to administer
+it. He acted upon the sentiment of
+Lord Bacon, that it is the foulest injustice to
+remove landmarks, and that to corrupt the law
+is to poison the very fountains of justice. With
+a consciousness that to the errors of the science
+there are some limits, but none to the evils of
+a licentious invasion of it, he left it to our annual
+legislature to correct such defects in the
+system as time either created or exposed; and
+better foundation in the law can no man lay."
+It is not to be denied that there is some difficulty
+in stating with accuracy the limits of the
+rule <i>stare decisis</i>. One, or even more than one,
+recent precedent, especially when it relates to
+the application rather than to the establishment
+of a rule, is not of so binding a character
+that it must be followed, even though contrary
+to principles adjudged in older cases: but it is<span class='pagenum'><a name="Page_xlii" id="Page_xlii">[Pg xlii]</a></span>
+just as clear that when a decision has been
+long acquiesced in, when it has been applied
+in numerous cases, and become a landmark in
+the branch of the science to which it relates,
+when men have dealt and made contracts on
+the faith of it, whether it relates to the right
+of property itself, or to the evidence by which
+that right may be substantiated, though it may
+appear to us "flatly absurd and unjust," to
+overrule such a decision is an act of positive
+injustice, as well as a violation of law, and an
+usurpation by one branch of the government
+upon the powers of another. An example will
+illustrate this position. In the case of Walton
+<i>v.</i> Shelley (1 Term Rep. 296), in 1786, the
+King's Bench, Lord Mansfield, Chief Justice,
+decided that a person is not a competent witness
+to impeach a security which he has given,
+though he is not interested in the event of the
+suit, on the trial of which he is offered. In
+Jordaine <i>v.</i> Lashbrooke (7 Term Rep. 601),
+the same court, in 1798, under the presidency
+of Lord Kenyon, rightly overruled that decision.
+Now it so happens that Walton <i>v.</i> Shelley<span class='pagenum'><a name="Page_xliii" id="Page_xliii">[Pg xliii]</a></span>
+was recognized as authority and followed in
+Pennsylvania, in 1792, in Stille <i>v.</i> Lynch (2
+Dall. 194), before it had been overruled in
+England: and though limited as it was understood
+to be in Bent <i>v.</i> Baker (3 Term Rep. 34),
+to negotiable paper (Pleasants <i>v.</i> Pemberton,
+2 Dall. 196), it has never been varied from
+since that time, though it has frequently been
+admitted that Walton <i>v.</i> Shelley was properly
+overruled. It ought not now to be overruled
+in Pennsylvania. "After the decisions cited,"
+says Judge Rogers, in Gest <i>v.</i> Espy (2 Watts,
+268), "this cannot be considered an open
+question, nor do we think ourselves at liberty
+now to examine the foundations of the rule."
+Unfortunately our Supreme Court have not always
+put this sound and wise limitation upon
+their own power. In the case of Post <i>v.</i> Avery
+(5 W. &amp; S. 509), they declared in regard to
+a rule of more than thirty years' standing, and
+confirmed by numerous cases, that they had
+"vainly hoped that the inconvenience of the
+rule would have attracted the attention of the
+legislature, <i>who alone are competent to abolish</i><span class='pagenum'><a name="Page_xliv" id="Page_xliv">[Pg xliv]</a></span>
+<i>it</i>;" but as nothing was to be expected from
+that quarter, "they were driven by stress of
+necessity" to overrule a case expressly decided
+on the authority of the rule. (Hart <i>v.</i> Heilner,
+3 Rawle, 407.) And two years afterwards, after
+having made the remarkable declaration that
+the legislature alone was competent to abolish
+the rule, they nevertheless pronounced it "exploded
+altogether." (McClelland <i>v.</i> Mahon, 1
+Barr, 364.)</p>
+
+<p>Lord Bacon says of retrospective laws:
+"<i>Cujus generis leges raro et magna cum cautione
+sunt adhibenda: neque enim placet Janus
+in legibus.</i>" Without any saving clause may
+the epithet and denunciation be applied to
+judicial laws. They are always <i>retrospective</i>,
+but worse on many accounts than <i>retrospective
+statutes</i>. Against the latter we have at least
+the security of the constitutional provision that
+prohibits the passage of any law, which impairs
+the obligation of a contract, executory or executed;
+and it has been well held that this
+prohibition applies to such an alteration of the
+law of evidence in force at the time the contract<span class='pagenum'><a name="Page_xlv" id="Page_xlv">[Pg xlv]</a></span>
+was made, as would practically destroy
+the contract itself by destroying the only
+means of enforcing it. There is no such constitutional
+provision against judicial legislation.
+It sweeps away a man's rights, vested, as he
+had reason to think, upon the firmest foundation,
+without affording him the shadow of redress.
+Nor could there, in the nature of
+things, be any such devised. When a court
+overrules a previous decision, it does not simply
+repeal it; it must pronounce it never to
+have been law. There is no instance on record,
+in which a court has instituted the inquiry,
+upon what grounds the suitor had relied in
+investing his property or making his contract,
+and relieved him from the disastrous consequences,
+not of his, but of their mistake, or the
+mistake of their predecessors. The man who,
+on the faith of Steele <i>v.</i> The Ph&#339;nix Ins. Co.
+(3 Binn. 306), decided in 1811, and treated as
+so well settled in itself and all its logical consequences,
+that in 1832 (Hart <i>v.</i> Heilner, 3
+Rawle, 407) the Supreme Court, declined to
+hear the counsel, who relied on its authority,<span class='pagenum'><a name="Page_xlvi" id="Page_xlvi">[Pg xlvi]</a></span>
+invested his money in the purchase of a claim
+which could be proved only by the testimony
+of the assignor, found himself stripped of his
+property by a decision in 1845, the results of
+which were broader than even the legislature
+itself would have been competent to effect, or
+indeed the people themselves in their sovereign
+capacity, at least so long as the Constitution
+of the United States continues to be "the supreme
+law of the land, anything in the <i>constitution</i>
+and laws of any State to the contrary
+notwithstanding."</p>
+
+<p>But judicial is much worse than legislative
+retrospection in another aspect. The act of
+Assembly, if carefully worded, is at least a
+certain rule. The act of the judicial legislature
+is invariably the precursor of uncertainty
+and confusion. Apply to it a test, which may
+be set down as unerring, never failing soon to
+discover the true metal from the base counterfeit:
+its effect upon litigation. A decision in
+conformity to established precedents is the
+mother of repose on that subject; but one that
+departs from them throws the professional<span class='pagenum'><a name="Page_xlvii" id="Page_xlvii">[Pg xlvii]</a></span>
+mind at sea without chart or compass. The
+cautious counsellor will be compelled to say to
+his client that he cannot advise. One cause is
+the general uncertainty to which it leads.
+Men will persuade themselves easily, when it
+is their interest to be persuaded, that if one
+well-established rule has been overthrown,
+another, believed to be quite as wrong and
+perhaps not so well fortified by time and subsequent
+cases, may share the same fate. Shall
+counsel risk advising his client not to prosecute
+his claim or defence, when another bolder
+than he, may moot the point and conduct
+another cause resting upon the same question
+to a successful termination? The very foundations
+of confidence and security are shaken.
+The law becomes a lottery, in which every
+man feels disposed to try his chance. Another
+cause of this uncertainty is more particular.
+A court scarcely ever makes an open and
+direct overthrow of a deeply founded rule at
+one stroke. It requires repeated blows. It
+can be seen to be in danger, but not whether
+it is finally to fall. Hence it frequently happens<span class='pagenum'><a name="Page_xlviii" id="Page_xlviii">[Pg xlviii]</a></span>
+that there is a sliding scale of cases; and
+when the final overthrow comes, it is very
+difficult to determine, whether any and which
+steps of the process remain. Shortly after the
+decision in Post <i>v.</i> Avery, the case of Fraley <i>v.</i>
+Bispham was tried in one of the inferior courts;
+in which the Judge, thinking that Post <i>v.</i>
+Avery, however the intention may have been
+disclaimed, did in fact overrule Steele <i>v.</i> The
+Ph&#339;nix, rejected as incompetent one of the
+nominal plaintiffs, a retiring partner, who
+upon dissolution had sold out for a price <i>bona
+fide</i> paid, all his interest in the firm to his
+copartners, who continued the business. A
+motion was made for a new trial, and before
+the rule came on to be heard, Patterson <i>v.</i>
+Reed (7 W. &amp; S. 144) had appeared, and the
+court, on the authority of that case, which decided
+that an assignment must be colorable
+and made for the purpose of rendering the
+assignor a witness in order to exclude him,
+ordered a new trial. Before the case was
+again called for trial, the first volume of Barr's
+Reports had been published, in which the<span class='pagenum'><a name="Page_xlix" id="Page_xlix">[Pg xlix]</a></span>
+Supreme Court said: "The time is come, when
+the doctrine of Steele <i>v.</i> The Ph&#339;nix Ins. Co.
+must be exploded altogether. The essential
+interests of justice demand that the decision in
+that case be no longer a precedent for anything
+whatever." (McClelland <i>v.</i> Mahon, 1
+Barr, 364.) And the Judge before whom the
+cause was then tried had no other course left,
+but again to reject the witness, the very same
+thing on account of which a new trial had
+been ordered.</p>
+
+<p>The case of Post <i>v.</i> Avery is a most striking
+illustration of judicial legislation and its mischievous
+results. It is usual to hear it excused
+on account of the unequal and unjust
+operation of the rule reversed, by which one
+party was heard but not the other, and the
+temptation it held out for the manufacture of
+false claims, to be supported by perjury. But
+it is to lose sight of the real question involved
+to raise such an issue: for, like the execution
+of a notorious culprit by the expeditious process
+of a mob and a lamp-post, instead of the
+formalities and delays of law and courts, it<span class='pagenum'><a name="Page_l" id="Page_l">[Pg l]</a></span>
+may be a very good thing for the community
+to have rid itself of the offender, but the way
+by which it was accomplished was a heavy
+blow at the very root of the tree of public and
+private security.</p>
+
+<p>There is another decision of the Supreme
+Court of Pennsylvania, not so bold and avowed
+an act of judicial legislation as that just mentioned,
+but not less transparent, which may be
+cited as strongly illustrating the same consequences
+of uncertainty and litigation flowing
+from a disregard of the principle adverted to.
+From the year 1794, there had existed in Pennsylvania
+an act of Assembly limiting the lien
+of the debts of a decedent on his real estate,
+at first to seven, afterwards to five years. No
+question ever arose before the court in regard
+to it. Lien was considered to mean lien and
+not obligation: lands to be subject to execution
+for all debts of the owner prosecuted to judgment,
+and of course not barred by the Statute
+of Limitations; and the limitation of the lien
+merely intended for the protection of purchasers
+from the heirs or devisees or their lien<span class='pagenum'><a name="Page_li" id="Page_li">[Pg li]</a></span>
+creditors. Such was recognized to be the true
+meaning of the law in 1795 (Hannum <i>v.</i> Spear,
+1 Yeats, 566), and so distinctly ruled in 1830
+(Bruch <i>v.</i> Lantz, 2 Rawle, 392); yet on grounds
+palpably only relevant to what, in the opinion
+of the court, the law ought to be, it was held
+in 1832, in Kerper <i>v.</i> Hoch (1 Watts, 9), that
+the period named was a limitation not of the
+lien but of the debt itself, and available in
+favor of heirs and devisees, volunteers under
+the debtor and succeeding to his rights <i>cum
+onere</i>. As we have seen, but two cases are to
+be produced of litigation arising out of this
+law carried to the highest tribunal from 1794
+to 1832. More than twenty cases are to be
+found reported since, in which that court has
+been called upon to draw distinctions and settle
+the precise extent of their own law. Thus a
+little complicated system has grown up on this
+construction of the act. A volume, indeed,
+might be written on Kerper <i>v.</i> Hoch and its
+satellites, when if the act had been let alone to
+speak for itself, and the prior decision followed,
+it would have been a simple and intelligible<span class='pagenum'><a name="Page_lii" id="Page_lii">[Pg lii]</a></span>
+rule of action, until the legislature saw
+fit to alter it. It seems that this consideration
+pressed upon at least one of the judges, who
+joined in that decision; for in a subsequent
+case, when Kerper <i>v.</i> Hoch was cited, that
+Judge, with characteristic candor, interrupted
+the counsel with the remark: "We will abide
+by the rule, but it was erroneously decided."
+(Hocker's Appeal, 4 Barr, 498.)</p>
+
+<p>This, then, is the legitimate province of
+Jurisprudence, <i>Stare super antiquas vias</i>, to
+maintain the ancient landmarks, to respect
+authority, to guard the integrity of the
+law as a science, that it may be a certain
+rule of decision, and promote that security of
+life, liberty, and property, which, as we have
+seen, is the great end of human society and
+government. Thus industry will receive its
+best encouragement; thus enterprise will be
+most surely stimulated; thus constant additions
+to capital by savings will be promoted;
+thus the living will be content in the feeling
+that their earnings are safely invested; and
+the dying be consoled with the reflection that<span class='pagenum'><a name="Page_liii" id="Page_liii">[Pg liii]</a></span>
+the widow and orphan are left under the care
+and protection of a government, which administers
+impartial justice according to established
+laws.</p>
+
+<p>With jurisprudence, lawyers have the most,
+nay all, to do. The opinion of the Bar will
+make itself heard and respected on the Bench.
+With sound views, their influence for good in
+this respect may well be said to be incalculable.
+It is indeed the noblest faculty of the profession
+to counsel the ignorant, defend the weak
+and oppressed, and to stand forth on all occasions
+as the bulwark of private rights against
+the assaults of power, even under the guise of
+law; but it has still other functions. It is its
+office to diffuse sound principles among the
+people, that they may intelligently exercise the
+controlling power placed in their hands, in
+the choice of their representatives in the Legislature
+and of Judges, in deciding, as they are
+often called upon to do, upon the most important
+changes in the Constitution, and above all
+in the formation of that public opinion which
+may be said in these times, almost without a<span class='pagenum'><a name="Page_liv" id="Page_liv">[Pg liv]</a></span>
+figure, to be <i>ultimate sovereign</i>. Whether they
+seek them or are sought, lawyers, in point of
+fact, always have filled, in much the larger proportion
+over every other profession, the most
+important public posts. They will continue to
+do so, at least so long as the profession holds
+the high and well-merited place it now does in
+the public confidence.</p>
+
+
+
+<hr style="width: 65%;" /><p><span class='pagenum'><a name="Page_1" id="Page_1">[Pg 1]</a></span></p>
+<h2><a name="PROFESSIONAL_ETHICS" id="PROFESSIONAL_ETHICS"></a>PROFESSIONAL ETHICS.</h2>
+
+
+<p>There is, perhaps, no profession, after that
+of the sacred ministry, in which a high-toned
+morality is more imperatively necessary than
+that of the law. There is certainly, without
+any exception, no profession in which so many
+temptations beset the path to swerve from the
+line of strict integrity; in which so many
+delicate and difficult questions of duty are
+continually arising. There are pitfalls and
+man-traps at every step, and the mere youth,
+at the very outset of his career, needs often
+the prudence and self-denial, as well as the
+moral courage, which belong commonly to
+riper years. High moral principle is his only
+safe guide; the only torch to light his way<span class='pagenum'><a name="Page_2" id="Page_2">[Pg 2]</a></span>
+amidst darkness and obstruction. It is like
+the spear of the guardian angel of Paradise:</p>
+
+<div class="poem"><div class="stanza">
+<span class="i4">No falsehood can endure<br /></span>
+<span class="i0">Touch of celestial temper, but returns<br /></span>
+<span class="i0">Of force to its own likeness.<br /></span>
+</div></div>
+
+<p>The object of this Essay is to arrive at some
+accurate and intelligible rules by which to
+guide and govern the conduct of professional
+life. It would not be a difficult task to declaim
+in general propositions&mdash;to erect a perfect
+standard and leave the practitioner to
+make his own application to particular cases.
+It is a difficult task, however, as it always is
+in practice, to determine the precise extent
+of a principle, so as to know when it is encountered
+and overcome by another&mdash;to weigh
+the respective force of duties which appear to
+come in conflict. In all the walks of life men
+have frequently to do this: in none so often as
+at the Bar.</p>
+
+<p>The responsibilities, legal and moral, of the
+lawyer, arise from his relations to the court,<span class='pagenum'><a name="Page_3" id="Page_3">[Pg 3]</a></span>
+to his professional brethren and to his client.
+It is in this order that it is proposed to consider
+and discuss the various topics which grow
+out of this subject.</p>
+
+<p>The oath directed by law in this State to be
+administered upon the admission of an attorney
+to the bar, "to behave himself in the office
+of attorney according to the best of his learning
+and ability, and with all good fidelity, as
+well to the court as to the client; that he will
+use no falsehood, nor delay any man's cause
+for lucre or malice," presents a comprehensive
+summary of his duties as a practitioner.<a name="FNanchor_1_1" id="FNanchor_1_1"></a><a href="#Footnote_1_1" class="fnanchor">[1]</a></p>
+<p><span class='pagenum'><a name="Page_4" id="Page_4">[Pg 4]</a></span></p>
+<p>Fidelity to the court, fidelity to the client,
+fidelity to the claims of truth and honor:
+these are the matters comprised in the oath of
+office.</p>
+
+<p>It is an oath of office, and the practitioner,
+the incumbent of an office&mdash;an office in the
+administration of justice<a name="FNanchor_2_2" id="FNanchor_2_2"></a><a href="#Footnote_2_2" class="fnanchor">[2]</a>&mdash;held by authority
+from those who represent in her tribunals the
+majesty of the commonwealth, a majesty truly
+more august than that of kings or emperors.
+It is an office, too, clothed with many privileges&mdash;privileges,
+some of which are conceded<span class='pagenum'><a name="Page_5" id="Page_5">[Pg 5]</a></span>
+to no other class or profession.<a name="FNanchor_3_3" id="FNanchor_3_3"></a><a href="#Footnote_3_3" class="fnanchor">[3]</a> It is, therefore,
+that the legislature have seen fit to require<span class='pagenum'><a name="Page_6" id="Page_6">[Pg 6]</a></span>
+that there should be added to the solemnity of
+the responsibility, which every man virtually<span class='pagenum'><a name="Page_7" id="Page_7">[Pg 7]</a></span>
+incurs when he enters upon the practice of his
+profession, the higher and more impressive
+sanction of an appeal to the Searcher of all
+Hearts.</p>
+
+<p><span class='pagenum'><a name="Page_8" id="Page_8">[Pg 8]</a></span></p><p>Fidelity to the court, requires outward respect
+in words and actions. The oath as it has
+been said, undoubtedly looks to nothing like
+allegiance to the person of the judge; unless
+in those cases where his person is so inseparable
+from his office, that an insult to the one, is
+an indignity to the other. In matters collateral
+to official duty, the judge is on a level with
+the members of the bar, as he is with his fellow-citizens;
+his title to distinction and respect
+resting on no other foundation, than his virtues
+and qualities as a man.<a name="FNanchor_4_4" id="FNanchor_4_4"></a><a href="#Footnote_4_4" class="fnanchor">[4]</a> There are occasions,
+no doubt, when duty to the interests confided
+to the charge of the advocate demands firm and
+decided opposition to the views expressed or
+the course pursued by the court, nay, even
+manly and open remonstrance; but this duty
+may be faithfully performed, and yet that outward
+respect be preserved, which is here inculcated.
+Counsel should ever remember how
+necessary it is for the dignified and honorable
+administration of justice, upon which the dignity<span class='pagenum'><a name="Page_9" id="Page_9">[Pg 9]</a></span>
+and honor of their profession entirely depend,
+that the courts and the members of the
+courts, should be regarded with respect by the
+suitors and people; that on all occasions of
+difficulty or danger to that department of government,
+they should have the good opinion
+and confidence of the public on their side.
+Good men of all parties prefer to live in a country,
+in which justice according to law is impartially
+administered. Counsel should bear in
+mind also the wearisomeness of a judge's office;
+how much he sees and hears in the course of a
+long session, to try his temper and patience.
+Lord Campbell has remarked that it is rather
+difficult for a judge altogether to escape the imputation
+of discourtesy if he properly values
+the public time; for one of his duties is to
+"render it disagreeable to counsel to talk nonsense."
+Respectful submission, nay, most frequently,
+even cheerful acquiescence in a decision,
+when, as is most generally the case, no
+good result to his cause can grow from any
+other course, is the part of true wisdom as well
+as civility. An exception may be noted to the<span class='pagenum'><a name="Page_10" id="Page_10">[Pg 10]</a></span>
+opinion of the Bench, as easily in an agreeable
+and polite, as in a contemptuous and insulting
+manner. The excitement of the trial of a cause
+caused by the conflict of testimony, making
+often the probabilities of success to vibrate
+backwards and forwards with as much apparent
+uncertainty as the chances in a game of hazard,
+is no doubt often the reason and apology for
+apparent disrespect in manner and language;
+but let it be observed, that petulance in conflicts
+with the Bench, which renders the trial of
+causes disagreeable to all concerned, has most
+generally an injurious effect upon the interests
+of clients.</p>
+
+<p>Indeed, it is highly important that the temper
+of an advocate should be always equal.
+He should most carefully aim to repress everything
+like excitability or irritability. When
+passion is allowed to prevail, the judgment
+is dethroned. Words are spoken, or things
+done, which the parties afterwards wish could
+be unsaid or undone. Equanimity and self-possession
+are qualities of unspeakable value.
+An anecdote may serve to illustrate this remark.<span class='pagenum'><a name="Page_11" id="Page_11">[Pg 11]</a></span>
+There was a gentleman of the Bar of Philadelphia,
+many years ago, who possessed these
+qualities in a very remarkable degree. He
+allowed nothing that occurred in a cause to disturb
+or surprise him. On an occasion in one of
+the neighboring counties, the circuit of which
+it was his custom to ride, he was trying a cause
+on a bond, when a witness for defendant was
+introduced, who testified that the defendant
+had taken the amount of the bond, which was
+quite a large sum, from his residence to that of
+the obligee, a distance of several miles, and
+paid him in silver in his presence. The evidence
+was totally unexpected; his clients were orphan
+children; all their fortune was staked on this
+case. The witness had not yet committed himself
+as to how the money was carried. Without
+any discomposure&mdash;without lifting his eyes or
+pen from paper&mdash;he made on the margin of his
+notes of trial a calculation of what that amount
+in silver would weigh; and when it came his
+turn to cross-examine, calmly proceeded to make
+the witness repeat his testimony step by step,&mdash;when,
+where, how, and how far the money was<span class='pagenum'><a name="Page_12" id="Page_12">[Pg 12]</a></span>
+carried&mdash;and then asked him if he knew how
+much that sum of money weighed, and upon
+naming the amount, so confounded the witness,
+party, and counsel engaged for the defendant,
+that the defence was at once abandoned, and a
+verdict for the plaintiff rendered on the spot.<a name="FNanchor_5_5" id="FNanchor_5_5"></a><a href="#Footnote_5_5" class="fnanchor">[5]</a></p>
+
+<p>Another plain duty of counsel is to present
+every thing in the cause to the court openly in
+the course of the public discharge of its duties.
+It is not often, indeed, that gentlemen of the
+Bar so far forget themselves as to attempt to
+exert privately an influence upon the judge, to
+seek private interviews, or take occasional opportunities
+of accidental or social meetings to
+make <i>ex parte</i> statements, or to endeavor to
+impress their views. They know that such
+conduct is wrong in itself, and has a tendency
+to impair confidence in the administration of
+justice, which ought not only to be pure but
+unsuspected. A judge will do right to avoid
+social intercourse with those who obtrude such<span class='pagenum'><a name="Page_13" id="Page_13">[Pg 13]</a></span>
+unwelcome matters upon his moments of relaxation.
+There is one thing, however, of which
+gentlemen of the Bar are not sufficiently careful,&mdash;to
+discourage and prohibit their clients
+from pursuing a similar course. The position
+of the judge in relation to a cause under such
+circumstances is very embarrassing, especially,
+as is often the case, if he hears a good deal
+about the matter before he discovers the nature
+of the business and object of the call upon
+him. Often the main purpose of such visits is
+not so much to plead the cause, as to show the
+judge who the party is&mdash;an acquaintance, perhaps&mdash;and
+thus, at least, to interest his feelings.
+Counsel should set their faces against
+all undue influences of the sort; they are unfaithful
+to the court, if they allow any improper
+means of the kind to be resorted to. <i>Judicem
+nec de obtinendo jure orari oportet nec de
+injuria exorari.</i> It may be in place to remark
+here that the counsel in a cause ought to avoid
+all unnecessary communication with the jurors
+before or during any trial in which he may be<span class='pagenum'><a name="Page_14" id="Page_14">[Pg 14]</a></span>
+concerned. He should enforce the same duty
+upon his client. Any attempt by an attorney
+to influence a juror by arguments or otherwise,
+will, of course, if discovered and brought to the
+notice of the court, lead to expulsion or suspension
+from the Bar, according to the degree
+and quality of the offence. The freedom of
+the jury-box from extraneous influences is a
+matter of such vital moment in our system that
+the courts are bound to watch over it with
+jealous eyes. "It would be an injury to the
+administration of justice," says C. J. Tilghman,
+"not to declare that it is gross misbehavior
+for any person to speak with a juror, or
+for a juror to permit any person to speak with
+him, respecting the cause he is trying, at any
+time after he is summoned and before the verdict
+is delivered." "The words thus uttered,"
+says Judge Hare, "by one of the best men
+and purest magistrates that ever filled the judicial
+office, must find an echo in every bosom.
+The principle which dictated them does not
+require the aid of argument or elucidation; it<span class='pagenum'><a name="Page_15" id="Page_15">[Pg 15]</a></span>
+is native to the conscience, and will be apparent
+to all who consult the monitor in their
+own breast. The wrong is aggravated when
+the taint of personal interest mingles with it,
+as when committed by a party to the cause,
+but appears in the worst form when it is the
+act of attorneys or counsel, who are the sworn
+officers of the court, whose duty it is to act as
+guardians of the fountains of justice, and who
+are false to their charge when they defile or
+taint those waters, which they are pledged to
+keep pure and unpolluted. Such conduct in
+counsel is a gross breach of trust, for which a
+removal from the trust is but an inadequate
+punishment."<a name="FNanchor_6_6" id="FNanchor_6_6"></a><a href="#Footnote_6_6" class="fnanchor">[6]</a></p>
+
+<p>There is another duty to the court, and that
+is, to support and maintain it in its proper
+province wherever it comes in conflict with
+the co-ordinate tribunal&mdash;the jury. The limits
+of these two provinces are settled with great
+accuracy; and even if a judge makes a mistake,<span class='pagenum'><a name="Page_16" id="Page_16">[Pg 16]</a></span>
+the only proper place to correct his error
+is in the superior tribunal,&mdash;the Court of Errors.
+It has been held in a multitude of cases,
+that verdicts against the charge of the court in
+point of law, will be set aside without limitation
+as to the number of times, and that without
+regard to the question whether the direction
+of the court in point of law was right or
+wrong. There is a technical reason, which
+makes this course in all cases imperative. The
+losing party, if the jury were allowed to decide
+the law for him, would be deprived of his exception,
+and of his unquestionable right to have
+the law of his case pronounced upon by the
+Supreme Court. <i>Ad questiones juris respondeant
+judices,&mdash;ad questiones facti juratores.</i> A
+disregard by the jury of the law, as laid down
+by the judge, is always therefore followed by
+additional and unnecessary delay and expense,
+and it is never an advantage to a party in the
+long run to obtain a verdict in opposition to
+the direction of the court.<a name="FNanchor_7_7" id="FNanchor_7_7"></a><a href="#Footnote_7_7" class="fnanchor">[7]</a> It is best for<span class='pagenum'><a name="Page_17" id="Page_17">[Pg 17]</a></span>
+counsel to say in such cases, where nothing is
+left by the charge to the jury, that they do not<span class='pagenum'><a name="Page_18" id="Page_18">[Pg 18]</a></span>
+ask for a verdict. It has a fair, candid, and
+manly aspect towards court, jury, opposite
+party, and even client. Instances of counsel urging
+or endeavoring to persuade a jury to disregard
+the charge may sometimes occur, but they
+are exceedingly rare when there is good feeling
+between the Bench and the Bar, and when the
+members of the profession have just and enlightened
+views of their duty as well as interest.</p>
+
+<p>It need hardly be added that a practitioner
+ought to be particularly cautious, in all his
+dealings with the court, to use no deceit, imposition,
+or evasion&mdash;to make no statements of
+facts which he does not know or believe to be
+true&mdash;to distinguish carefully what lies in his
+own knowledge from what he has merely derived
+from his instructions&mdash;to present no paper-books
+intentionally garbled. "Sir Matthew Hale
+abhorred," says his biographer, "those too common<span class='pagenum'><a name="Page_19" id="Page_19">[Pg 19]</a></span>
+faults of misrepresenting evidence, quoting
+precedents or books falsely, or asserting
+anything confidently by which ignorant juries
+and weak judges are too often wrought upon."<a name="FNanchor_8_8" id="FNanchor_8_8"></a><a href="#Footnote_8_8" class="fnanchor">[8]</a>
+One such false step in a young lawyer will do
+him an injury in the opinion of the Bench and
+of his professional brethren, which it will take
+years to redeem, if indeed it ever can be entirely
+redeemed.</p>
+
+<p>A very great part of a man's comfort, as
+well as of his success at the Bar, depends upon
+his relations with his professional brethren.
+With them he is in daily necessary intercourse,
+and he must have their respect and confidence,
+if he wishes to sail along in smooth waters.
+He cannot be too particular in keeping faithfully
+and liberally every promise or engagement
+he may make to them. One whose
+perfect truthfulness is even suspected by his
+brethren at the Bar has always an uneasy time
+of it. He will be constantly mortified by observing
+precautions taken with him which are
+not used with others. It is not only morally<span class='pagenum'><a name="Page_20" id="Page_20">[Pg 20]</a></span>
+wrong but dangerous to mislead an opponent,
+or put him on a wrong scent in regard to the
+case. It would be going too far to say that it
+is ever advisable to expose the weakness of a
+client's cause to an adversary, who may be unscrupulous
+in taking advantage of it; but it
+may be safely said, that he who sits down deliberately
+to plot a surprise upon his opponent,
+and which he knows can succeed only
+by its being a surprise, deserves to fall, and
+in all probability will fall, into the trap which
+his own hands have laid. "Whoso diggeth a
+pit," says the wise man, "shall fall therein,
+and he that rolleth a stone, it will return upon
+him." If he should succeed, he will have
+gained with his success not the admiration and
+esteem, but the distrust and dislike of one of
+his associates as long as he lives. He should
+never unnecessarily have a personal difficulty
+with a professional brother. He should neither
+give nor provoke insult. Nowhere more than
+at the Bar is that advice valuable:</p>
+
+<div class="poem"><div class="stanza">
+<span class="i10">"Beware<br /></span>
+<span class="i0">Of entrance to a quarrel; but being in,<br /></span>
+<span class="i0">Bear it that the opposed may beware of thee."<br /></span>
+<span class='pagenum'><a name="Page_21" id="Page_21">[Pg 21]</a></span></div></div>
+
+<p>There is one more caution to be given under
+this head. Let him shun most carefully the
+reputation of a sharp practitioner. Let him
+be liberal to the slips and oversights of his
+opponent wherever he can do so, and in plain
+cases not shelter himself behind the instructions
+of his client. The client has no right to
+require him to be illiberal&mdash;and he should
+throw up his brief sooner than do what revolts
+against his own sense of what is demanded by
+honor and propriety.</p>
+
+<p>Nothing is more certain than that the practitioner
+will find, in the long run, the good
+opinion of his professional brethren of more
+importance than that of what is commonly
+called the public. The foundations of the
+reputation of every truly great lawyer will be
+discovered to have been laid here. Sooner or
+later, the real public&mdash;the business men of the
+community, who have important lawsuits, and
+are valuable clients&mdash;indorse the estimate of a
+man entertained by his associates of the Bar,
+unless indeed there be some glaring defect of
+popular qualities. The community know that<span class='pagenum'><a name="Page_22" id="Page_22">[Pg 22]</a></span>
+they are better qualified to judge of legal
+attainments, that they have the best opportunity
+of judging, and that they are slow in
+forming a judgment. The good opinion and
+confidence of the members of the same profession,
+like the King's name on the field of battle,
+is "a tower of strength;" it is the title of
+legitimacy. The ambition to please the people,
+to captivate jurors, spectators, and loungers
+about the court room, may mislead a young
+man into pertness, flippancy, and impudence,
+things which often pass current for eloquence
+and ability with the masses; but the ambition
+to please the Bar can never mislead him. Their
+good graces are only to be gained by real
+learning, by the strictest integrity and honor,
+by a courteous demeanor, and by attention,
+accuracy and punctuality in the transaction of
+business.</p>
+
+<p>The topic of fidelity to the client involves
+the most difficult questions in the consideration
+of the duty of a lawyer.</p>
+
+<p>He is legally responsible to his client only
+for the want of ordinary care and ordinary<span class='pagenum'><a name="Page_23" id="Page_23">[Pg 23]</a></span>
+skill. That constitutes gross negligence. It
+is extremely difficult to fix upon any rule which
+shall define what is negligence in a given case.
+The habits and practice of men are widely different
+in this regard. It has been laid down
+that if the ordinary and average degree of diligence
+and skill could be determined, it would
+furnish the true rule.<a name="FNanchor_9_9" id="FNanchor_9_9"></a><a href="#Footnote_9_9" class="fnanchor">[9]</a> Though such be the<span class='pagenum'><a name="Page_24" id="Page_24">[Pg 24]</a></span>
+extent of legal liability, that of moral responsibility
+is wider. Entire devotion to the interest
+of the client, warm zeal in the maintenance
+and defence of his rights, and the exertion of
+his utmost learning and ability,&mdash;these are the
+higher points, which can only satisfy the truly
+conscientious practitioner.</p>
+
+<p>But what are the limits of his duty when the<span class='pagenum'><a name="Page_25" id="Page_25">[Pg 25]</a></span>
+legal demands or interests of his client conflict
+with his own sense of what is just and right?
+This is a problem by no means of easy solution.</p>
+
+<p>That lawyers are as often the ministers of
+injustice as of justice is the common accusation
+in the mouth of gainsayers against the profession.
+It is said there must be a right and a
+wrong side to every lawsuit. In the majority
+of cases it must be apparent to the advocate, on
+which side is the justice of the cause; yet he
+will maintain, and often with the appearance
+of warmth and earnestness, that side which he
+must know to be unjust, and the success of
+which will be a wrong to the opposite party.
+Is he not then a participator in the injustice?</p>
+
+<p>It may be answered in general:&mdash;</p>
+
+<p>Every case is to be decided by the tribunal
+before which it is brought for adjudication upon
+the evidence, and upon the principles of law
+applicable to the facts as they appear upon the
+evidence. No court or jury are invested with
+any arbitrary discretion to determine a cause
+according to their mere notions of justice. Such
+a discretion vested in any body of men would<span class='pagenum'><a name="Page_26" id="Page_26">[Pg 26]</a></span>
+constitute the most appalling of despotisms.
+Law, and justice according to law&mdash;this is the
+only secure principle upon which the controversies
+of men can be decided. It is better on
+the whole that a few particular cases of hardship
+and injustice, arising from defect of evidence
+or the unbending character of some strict
+rule of law, should be endured, than that general
+insecurity should pervade the community
+from the arbitrary discretion of the judge. It
+is this which has blighted the countries of the
+East as much as cruel laws or despotic executives.
+Thus the legislature has seen fit in certain
+cases to assign a limit to the period within
+which actions shall be brought; in order to urge
+men to vigilance, and to prevent stale claims
+from being suddenly revived against men whose
+vouchers are destroyed or whose witnesses are
+dead. It is true, <i>in foro conscienti&aelig;</i>, a defendant,
+who knows that he honestly owes the debt
+sued for and that the delay has been caused by
+indulgence or confidence on the part of his
+creditor, ought not to plead the statute. But<span class='pagenum'><a name="Page_27" id="Page_27">[Pg 27]</a></span>
+if he does plead it, the judgment of the court
+must be in his favor.</p>
+
+<p>Now the lawyer is not merely the agent of
+the party; he is an officer of the court. The
+party has a right to have his case decided upon
+the law and the evidence, and to have every
+view presented to the minds of his judges,
+which can legitimately bear upon that question.
+This is the office which the advocate performs.
+He is not morally responsible for the act of the
+party in maintaining an unjust cause, nor for
+the error of the court, if they fall into error, in
+deciding it in his favor. The court or jury
+ought certainly to hear and weigh both sides;
+and the office of the counsel is to assist them
+by doing that, which the client in person, from
+want of learning, experience, and address, is
+unable to do in a proper manner. The lawyer,
+who refuses his professional assistance because
+in his judgment the case is unjust and indefensible,
+usurps the functions of both judge and
+jury.</p>
+
+<p>As an answer to any sweeping objection made
+to the profession in general, the view thus presented<span class='pagenum'><a name="Page_28" id="Page_28">[Pg 28]</a></span>
+may be quite satisfactory. It by no
+means follows, however, as a principle of private
+action for the advocate, that all causes are
+to be taken by him indiscriminately and conducted
+with a view to one single end, <i>success</i>.
+It is much to be feared, however, that the prevailing
+tone of professional ethics leads practically
+to this result. He has an undoubted
+right to refuse a retainer, and decline to be
+concerned in any cause, at his discretion. It is
+a discretion to be wisely and justly exercised.
+When he has once embarked in a case, he cannot
+retire from it without the consent of his
+client or the approbation of the court.<a name="FNanchor_10_10" id="FNanchor_10_10"></a><a href="#Footnote_10_10" class="fnanchor">[10]</a> To<span class='pagenum'><a name="Page_29" id="Page_29">[Pg 29]</a></span>
+come before the court with a revelation of facts,
+damning to his client's case, as a ground for
+retiring from it, would be a plain breach of the
+confidence reposed in him, and the law would
+seal his lips.<a name="FNanchor_11_11" id="FNanchor_11_11"></a><a href="#Footnote_11_11" class="fnanchor">[11]</a> How then is he to acquit himself?<span class='pagenum'><a name="Page_30" id="Page_30">[Pg 30]</a></span>
+Lord Brougham, in his justly celebrated
+defence of the Queen, went to very extravagant
+lengths upon this subject; no doubt he
+was led by the excitement of so great an occasion
+to say what cool reflection and sober reason
+certainly never can approve. "An advocate,"
+said he, "in the discharge of his duty knows
+but one person in all the world, and that person
+is his client. To save that client by all
+means and expedients, and at all hazards and
+costs to other persons, and among them to himself,
+is his first and only duty; and in performing<span class='pagenum'><a name="Page_31" id="Page_31">[Pg 31]</a></span>
+this duty he must not regard the alarm, the
+torments, the destruction he may bring upon
+others. Separating the duty of a patriot from
+that of an advocate, he must go on reckless of
+consequences; though it should be his unhappy
+lot to involve his country in confusion."</p>
+
+<p>On the other hand, and as illustrative of the
+practical difficulty, which this question presented
+to a man, with as nice a perception of
+moral duty as perhaps ever lived, it is said by
+Bishop Burnet, of Sir Matthew Hale: "If he
+saw a cause was unjust, he for a great while
+would not meddle further in it, but to give his
+advice that <i>it was so</i>; if the parties after that
+would go on, they were to seek another counsellor,
+for he would assist none in acts of injustice;
+if he found the cause doubtful or weak in
+point of law, he always advised his clients to
+agree their business. Yet afterwards he abated
+much of the scrupulosity he had about causes
+that appeared at first unjust, upon this occasion;
+there were two causes brought him, which by
+the ignorance of the party or their attorney,
+were so ill-represented to him that they seemed<span class='pagenum'><a name="Page_32" id="Page_32">[Pg 32]</a></span>
+to be very bad; but he inquiring more narrowly
+into them, found they were really very good
+and just; so after this he slackened much of
+his former strictness of refusing to meddle in
+causes upon the ill circumstances that appeared
+in them at first."<a name="FNanchor_12_12" id="FNanchor_12_12"></a><a href="#Footnote_12_12" class="fnanchor">[12]</a></p>
+
+<p>It may be delicate and dangerous ground to
+tread upon to undertake to descend to particulars
+upon such a subject. Every case must, to<span class='pagenum'><a name="Page_33" id="Page_33">[Pg 33]</a></span>
+a great degree, depend upon its own circumstances,
+known, peradventure, to the counsel
+alone; and it will often be hazardous to condemn
+either client or counsel upon what appears
+only. A hard plea&mdash;a sharp point&mdash;may
+subserve what is at bottom an honest claim, or
+just defence; though the evidence may not be
+within the power of the parties, which would
+make it manifest.</p>
+
+<p>There are a few propositions, however, which
+appear to me to be sound in themselves, and
+calculated to solve this problem practically in
+the majority of cases: at least to assist the
+mind in coming to a safe conclusion <i>in foro
+conscienti&aelig;</i>, in the discharge of professional
+duty.</p>
+
+<p>There is a distinction to be made between
+the case of prosecution and defence for crimes;
+between appearing for a plaintiff in pursuit of
+an unjust claim, and for a defendant in resisting
+what appears to be a just one.</p>
+
+<p>Every man, accused of an offence, has a constitutional
+right to a trial according to law:
+even if guilty, he ought not to be convicted<span class='pagenum'><a name="Page_34" id="Page_34">[Pg 34]</a></span>
+and undergo punishment unless upon legal
+evidence; and with all the forms which have
+been devised for the security of life and liberty.
+These are the panoply of innocence when unjustly
+arraigned; and guilt cannot be deprived
+of it, without removing it from innocence. He
+is entitled, therefore, to the benefit of counsel
+to conduct his defence, to cross-examine the
+witnesses for the State, to scan, with legal
+knowledge, the forms of the proceeding against
+him, to present his defence in an intelligible
+shape, to suggest all those reasonable doubts
+which may arise from the evidence as to his
+guilt, and to see that if he is convicted, it is
+according to law. A circumstance the celebrated
+Lord Shaftesbury once so finely turned
+to his purpose must often happen to a prisoner
+at his trial. Attempting to speak on the bill
+for granting counsel to prisoners in cases of
+high treason, he was confounded, and for some
+time could not proceed, but recovering himself,
+he said, "What now happened to him would
+serve to fortify the arguments for the bill. If
+he innocent and pleading for others was<span class='pagenum'><a name="Page_35" id="Page_35">[Pg 35]</a></span>
+daunted at the augustness of such an assembly,
+what must a man be who should plead before
+them for his life?"<a name="FNanchor_13_13" id="FNanchor_13_13"></a><a href="#Footnote_13_13" class="fnanchor">[13]</a> The courts are in the
+habit of assigning counsel to prisoners who are
+destitute, and who request it; and counsel
+thus named by the court cannot decline the
+office.<a name="FNanchor_14_14" id="FNanchor_14_14"></a><a href="#Footnote_14_14" class="fnanchor">[14]</a> It is not to be termed screening the
+guilty from punishment, for the advocate to
+exert all his ability, learning, and ingenuity,
+in such a defence, even if he should be perfectly
+assured in his own mind of the actual
+guilt of the prisoner.<a name="FNanchor_15_15" id="FNanchor_15_15"></a><a href="#Footnote_15_15" class="fnanchor">[15]</a></p>
+
+<p><span class='pagenum'><a name="Page_36" id="Page_36">[Pg 36]</a></span></p><p>It is a different thing to engage as private
+counsel in a prosecution against a man whom
+he knows or believes to be innocent. Public
+prosecutions are carried on by a public officer,
+the Attorney-General, or those who act in his
+place; and it ought to be a clear case to induce
+gentlemen to engage on behalf of private interests
+or feelings, in such a prosecution. It
+ought never to be done against the counsel's
+own opinion of its merits. There is no call of
+professional duty to balance the scale, as there<span class='pagenum'><a name="Page_37" id="Page_37">[Pg 37]</a></span>
+is in the case of a defendant. It is in every
+case but an act of courtesy in the Attorney-General
+to allow private counsel to take part
+for the Commonwealth; such a favor ought
+not to be asked, unless in a cause believed to
+be manifestly just. The same remarks apply to
+mere assistance in preparing such a cause for
+trial out of court, by getting ready and arranging
+the evidence and other matters connected
+with it: as the Commonwealth has its own
+officers, it may well, in general, be left to them.
+There is no obligation on an attorney to minister
+to the bad passions of his client; it is but
+rarely that a criminal prosecution is pursued
+for a valuable private end, the restoration of
+goods, the maintenance of the good name of
+the prosecutor, or closing the mouth of a man
+who has perjured himself in a court of justice.
+The office of Attorney-General is a public
+trust, which involves in the discharge of it, the
+exertion of an almost boundless discretion, by
+an officer who stands as impartial as a judge.
+"The professional assistant, with the regular
+deputy, exercises not his own discretion, but<span class='pagenum'><a name="Page_38" id="Page_38">[Pg 38]</a></span>
+that of the Attorney-General, whose <i>locum
+tenens</i> at sufferance, he is; and he consequently
+does so under the obligation of the official
+oath."<a name="FNanchor_16_16" id="FNanchor_16_16"></a><a href="#Footnote_16_16" class="fnanchor">[16]</a> On the other hand, if it were considered
+that a lawyer was bound or even had a
+right to refuse to undertake the defence of a
+man because he thought him guilty, if the
+rule were universally adopted, the effect would
+be to deprive a defendant, in such cases, of the
+benefit of counsel altogether.</p>
+
+<p>The same course of remark applies to civil
+causes. A defendant has a legal right to require
+that the plaintiffs demand against him
+should be proved and proceeded with according
+to law. If it were thrown upon the parties
+themselves, there would he a very great
+inequality between them, according to their
+intelligence, education, and experience, respectively.
+Indeed, it is one of the most striking
+advantages of having a learned profession, who
+engage as a business in representing parties in
+courts of justice, that men are thus brought<span class='pagenum'><a name="Page_39" id="Page_39">[Pg 39]</a></span>
+nearer to a condition of equality, that causes
+are tried and decided upon their merits, and
+do not depend upon the personal characters
+and qualifications of the immediate parties.<a name="FNanchor_17_17" id="FNanchor_17_17"></a><a href="#Footnote_17_17" class="fnanchor">[17]</a>
+Thus, too, if a suit be instituted against a man
+to recover damages for a tort, the defendant
+has a right to all the ingenuity and eloquence
+he can command in his defence, that even if
+he has committed a wrong, the amount of the
+damages may not exceed what the plaintiff is
+justly entitled to recover. But the claim of a
+plaintiff stands upon a somewhat different footing.
+Counsel have an undoubted right, and
+are in duty bound, to refuse to be concerned
+for a plaintiff in the legal pursuit of a demand,
+which offends his sense of what is just and
+right. The courts are open to the party in
+person to prosecute his own claim, and plead<span class='pagenum'><a name="Page_40" id="Page_40">[Pg 40]</a></span>
+his own cause; and although he ought to
+examine and be well-satisfied before he
+refuses to a suitor the benefit of his professional
+skill and learning, yet it would be
+on his part an immoral act to afford that
+assistance, when his conscience told him
+that the client was aiming to perpetrate a
+wrong through the means of some advantage
+the law may have afforded him. "It is a popular
+but gross mistake," says the late Chief
+Justice Gibson, "to suppose that a lawyer
+owes no fidelity to any one except his client,
+and that the latter is the keeper of his professional
+conscience. He is expressly bound by
+his official oath to behave himself, in his office
+of attorney, with all fidelity to the court as
+well as the client; and he violates it when he
+consciously presses for an unjust judgment,
+much more so when he presses for the conviction
+of an innocent man.... The high and
+honorable office of a counsel would be degraded
+to that of a mercenary, were he compelled to
+do the biddings of his client against the dictates<span class='pagenum'><a name="Page_41" id="Page_41">[Pg 41]</a></span>
+of his conscience."<a name="FNanchor_18_18" id="FNanchor_18_18"></a><a href="#Footnote_18_18" class="fnanchor">[18]</a> The sentiment has
+been expressed in flowing numbers by our
+great commentator, Sir William Blackstone:&mdash;</p>
+
+<div class="poem"><div class="stanza">
+<span class="i0">"To Virtue and her friends a friend,<br /></span>
+<span class="i0">Still may my voice the weak defend:<br /></span>
+<span class="i0">Ne'er may my prostituted tongue<br /></span>
+<span class="i0">Protect the oppressor in his wrong;<br /></span>
+<span class="i0">Nor wrest the spirit of the laws,<br /></span>
+<span class="i0">To sanctify the villain's cause."<br /></span>
+</div></div>
+
+<p>Another proposition which may be advanced
+upon this subject is, that there may and ought
+to be a difference made in the mode of conducting
+a defence against what is believed to
+be a righteous, and what is believed to be an
+unrighteous claim. A defence in the former
+case should be conducted upon the most liberal
+principles. When he is contending against<span class='pagenum'><a name="Page_42" id="Page_42">[Pg 42]</a></span>
+the claim of one, who is seeking, as he
+believes, through the forms of law, to do his
+client an injury, the advocate may justifiably
+avail himself of every honorable ground to
+defeat him. He may begin at once by declaring
+to his opponent or his professional adviser,
+that he holds him at arm's length, and he may
+keep him so during the whole contest. He
+may fall back upon the instructions of his
+client, and refuse to yield any legal vantage
+ground, which may have been gained through
+the ignorance or inadvertence of his opponent.
+Counsel, however, may and even ought
+to refuse to act under instructions from a client
+to defeat what he believes to be an honest and
+just claim, by insisting upon the slips of the
+opposite party, by sharp practice, or special
+pleading&mdash;in short, by any other means than a
+fair trial on the merits in open court. There
+is no professional duty, no virtual engagement
+with the client, which compels an advocate to
+resort to such measures, to secure success in
+any cause, just or unjust; and when so instructed,
+if he believes it to be intended to<span class='pagenum'><a name="Page_43" id="Page_43">[Pg 43]</a></span>
+gain an unrighteous object, he ought to throw
+up the cause, and retire from all connection
+with it, rather than thus he a participator in
+other men's sins.</p>
+
+<p>Moreover, no counsel can with propriety and
+a good conscience express to court or jury his
+belief in the justice of his client's cause, contrary
+to the fact. Indeed, the occasions are
+very rare in which he ought to throw the
+weight of his own private opinion into the
+scales in favor of the side he has espoused.
+If that opinion has been formed on a statement
+of facts not in evidence, it ought not to
+be heard,&mdash;it would be illegal and improper
+in the tribunal to allow any force whatever to
+it; if on the evidence only, it is enough to
+show from that the legal and moral grounds
+on which such opinion rests. Some very sound
+and judicious observations have been made by
+Mr. Whewell in a recent work on the Elements
+of Moral and Political Science, which deserve
+to be quoted at length;&mdash;</p>
+
+<p>"Some moralists," says he, "have ranked
+with the cases in which convention supersedes<span class='pagenum'><a name="Page_44" id="Page_44">[Pg 44]</a></span>
+the general rule of truth, an advocate asserting
+the justice, or his belief in the justice, of his
+client's cause. Those who contend for such
+indulgence argue that the profession is an instrument
+for the administration of justice: he
+is to do all he can for his client: the application
+of laws is a matter of great complexity
+and difficulty: that the right administration of
+them in doubtful cases is best provided for if
+the arguments on each side are urged with
+the utmost force. The advocate is not the
+judge.</p>
+
+<p>"This may be all well, if the advocate let it
+be so understood. But if in pleading he assert
+his belief that his cause is just when he believes
+it unjust, he offends against truth, as
+any other man would do who in like manner
+made a like assertion.</p>
+
+<p>"Every man, when he advocates a case in
+which morality is concerned, has an influence
+upon his hearers, which arises from the belief
+that he shares the moral sentiments of all
+mankind. This influence of his supposed
+morality is one of his possessions, which, like<span class='pagenum'><a name="Page_45" id="Page_45">[Pg 45]</a></span>
+all his possessions, he is bound to use for moral
+ends. If he mix up his character as an advocate
+with his character as a moral agent, using
+his moral influence for the advocate's purpose,
+he acts immorally. He makes the moral rule
+subordinate to the professional rule. He sells
+to his client not only his skill and learning,
+but himself. He makes it the supreme object
+of his life to be not a good man, but a successful
+lawyer.</p>
+
+<p>"There belong to him, moreover, moral ends
+which regard his profession; namely, to make
+it an institution fitted to promote morality.
+To raise and purify the character of the profession,
+so that it may answer the ends of
+justice without requiring insincerity in the advocate,
+is a proper end for a good man who is
+a lawyer; a purpose on which he may well
+and worthily employ his efforts and influence."<a name="FNanchor_19_19" id="FNanchor_19_19"></a><a href="#Footnote_19_19" class="fnanchor">[19]</a></p>
+
+<p>Nothing need be added to enforce what has
+been so well said. The remark, however, may<span class='pagenum'><a name="Page_46" id="Page_46">[Pg 46]</a></span>
+be permitted, that the expression of private
+opinion as to the merits of a controversy often
+puts the counsel at fearful odds. A young
+man, unknown to the court or the jury, is
+trying his first case against a veteran of standing
+and character: what will the asseveration
+of the former weigh against that of the latter?
+In proportion, then, to the age, experience,
+maturity of judgment, and professional character
+of the man, who falsely endeavors to
+impress the court and jury with the opinion
+of his confidence in the justice of his case, in
+that proportion is there danger that injury will
+be done and wrong inflicted&mdash;in that proportion
+is there moral delinquency in him who
+resorts to it.</p>
+
+<p>Much interest was excited some years ago in
+England, by the circumstances attending the
+defence of Courvoisier, indicted for the murder
+of Lord William Russell. The crime was one
+of great atrocity. It came out after his conviction,
+that during the trial he had confessed
+his guilt to his counsel, of whom the eminent
+barrister Charles Phillips, Esq., was one. Mr.<span class='pagenum'><a name="Page_47" id="Page_47">[Pg 47]</a></span>
+Phillips was accused of having endeavored,
+notwithstanding this confession, to fasten suspicion
+on the other servants in the house, to
+induce the belief that the police had conspired
+with them to manufacture evidence against the
+prisoner, and to impress the jury with his own
+personal belief in the innocence of his client.
+How far these accusations were just in point
+of fact was the subject of lively discussion in
+the newspapers and periodicals of the time.<a name="FNanchor_20_20" id="FNanchor_20_20"></a><a href="#Footnote_20_20" class="fnanchor">[20]</a></p>
+
+<p>The language of counsel, on such occasions,
+during the excitement of the trial, in the fervor
+of an address to the jury, is not to be
+calmly and nicely scanned in the printed report.
+The testimony of such a witness as Baron
+Parke, at the time and on the spot,&mdash;he, too,
+aware of the exact position of Mr. Phillips&mdash;and<span class='pagenum'><a name="Page_48" id="Page_48">[Pg 48]</a></span>
+that confirmed by Chief Justice Tindal, is
+conclusive. To charge him with <i>acting falsehood</i>,
+that is, with presenting the case as it
+appeared upon the testimony, earnestly and
+confidently, means that he did not do that,
+which would have been worse than retiring
+from his post.</p>
+
+<p>The non-professional, as well as professional
+public in England, however, agreed in saying
+that he would not have been justified in withdrawing
+from the case: he was still bound to
+defend the accused upon the evidence; though
+a knowledge of his guilt, from whatever source
+derived, might and ought materially to influence
+the mode of the defence. No right-minded
+man, professional or otherwise, will
+contend that it would have been right in him
+to have lent himself to a defence, which might
+have ended, had it been successful, in bringing
+down an unjust suspicion upon an innocent
+person; or even to stand up and falsely pretend
+a confidence in the truth and justice of
+his cause, which he did not feel. But there
+were those on this side of the Atlantic, who<span class='pagenum'><a name="Page_49" id="Page_49">[Pg 49]</a></span>
+demurred to the conclusion, that an advocate
+is under a moral obligation to maintain the
+defence of a man who has admitted to him his
+guilt. Men have been known, however, under
+the influence of some delusion, to confess
+themselves guilty of crimes which they had not
+committed: and hence, to decline acting as
+counsel in such a case, is a dangerous refinement
+in morals.<a name="FNanchor_21_21" id="FNanchor_21_21"></a><a href="#Footnote_21_21" class="fnanchor">[21]</a> Nothing seems plainer than
+the proposition, that a person accused of a
+crime is to be tried and convicted, if convicted
+at all, <i>upon evidence</i>, and <i>whether guilty or not
+guilty</i>, if the evidence is insufficient to convict
+him, he has <i>a legal right</i> to be acquitted. The<span class='pagenum'><a name="Page_50" id="Page_50">[Pg 50]</a></span>
+tribunal that convicts without sufficient evidence
+may decide according to the fact; but
+the next jury, acting on the same principle,
+may condemn an innocent man. If this be so,
+is not the prisoner in every case entitled to
+have the evidence carefully sifted, the weak
+points of the prosecution exposed, the reasonable
+doubts presented which should weigh in
+his favor? And what offence to truth or morality
+does his advocate commit in discharging
+that duty to the best of his learning and ability?
+What apology can he make for throwing
+up his brief? The truth he cannot disclose;
+the law seals his lips as to what has thus been
+communicated to him in confidence by his
+client. He has no alternative, then, but to
+perform his duty. It is his duty, however, as
+an advocate merely, as Baron Parke has well
+expressed it, to use <span class="smcap">all fair arguments arising
+on the evidence</span>. Beyond that, he is not
+bound to go in any case; in a case in which
+he is satisfied in his own mind of the guilt of
+the accused, he is not justified in going.</p>
+
+<p>Under all circumstances, the utmost candor<span class='pagenum'><a name="Page_51" id="Page_51">[Pg 51]</a></span>
+should be used towards the client. This is
+imperatively demanded alike by considerations
+of duty and interest. It is much better for a
+man occasionally to lose a good client, than to
+fail in so plain a matter. It is nothing but
+selfishness that can operate upon a lawyer
+when consulted to conceal from the party his
+candid opinion of the merits, and the probable
+result. It is fair that he should know it; for
+he may not choose to employ a man whose
+views may operate to check his resorting to all
+lawful means to effect success. Besides, most
+men, when they consult an attorney, wish a
+candid opinion; it is what they ask and pay
+for. It is true, that it is often very hard to
+persuade a man that he has not the best side
+of a lawsuit: his interest blinds his judgment:
+his passion will not allow him to reflect calmly,
+and give due weight to opposing considerations.
+There are many persons who will go
+from lawyer to lawyer with a case, until they
+find one who is willing to express an opinion
+which tallies with their own. Such a client
+the lawyer, who acts firmly upon the principle<span class='pagenum'><a name="Page_52" id="Page_52">[Pg 52]</a></span>
+to which I have adverted, will now and then
+lose; but even such an one, when finally unsuccessful,
+as the great probability is that he
+will be, when he comes to sit down and calculate
+all that he has lost in time, money, and
+character, by acting contrary to the advice first
+given, will revert to the candid and honest
+opinion he then received, and determine, if
+ever he gets into another difficulty of the kind,
+to resort to that attorney, and abide by his
+advice. Thus may a man build up for himself
+a character far outweighing, even in pecuniary
+value, all such paltry particular losses; it is to
+such men that the best clients resort; they
+have the most important and interesting lawsuits,
+and enjoy by far the most lucrative practice.</p>
+
+<p>A very important part of the advocate's duty
+is to moderate the passions of the party, and
+where the case is of a character to justify it, to
+encourage an amicable compromise of the controversy.
+It happens too often at the close of
+a protracted litigation that it is discovered,
+when too late, that the play has not been worth<span class='pagenum'><a name="Page_53" id="Page_53">[Pg 53]</a></span>
+the candle, and that it would have been better,
+calculating everything, for the successful party
+never to have embarked in it&mdash;to have paid
+the claim, if defendant, or to have relinquished
+it, if he was plaintiff. Counsel can very soon
+discover whether such is likely to be the case,
+and it cannot be doubted what their plain duty
+is under such circumstances.</p>
+
+<p>Besides this, the advocate is bound in honor,
+as well as duty, to disclose to the client at the
+time of the retainer, every circumstance of his
+own connection with the parties or prior relation
+to the controversy, which can or may influence
+his determination in the selection of him
+for the office. An attorney is bound to disclose
+to his client every adverse retainer, and even
+every prior retainer, which may affect the discretion
+of the latter. No man can be supposed
+to be indifferent to the knowledge of facts,
+which work directly on his interests, or bear on
+the freedom of his choice of counsel. When a
+client employs an attorney, he has a right to
+presume, if the latter be silent on the point,
+that he has no engagements which interfere, in<span class='pagenum'><a name="Page_54" id="Page_54">[Pg 54]</a></span>
+any degree, with his exclusive devotion to the
+cause confided to him; that he has no interest
+which may betray his judgment or endanger
+his fidelity.<a name="FNanchor_22_22" id="FNanchor_22_22"></a><a href="#Footnote_22_22" class="fnanchor">[22]</a></p>
+
+<p>It is in some measure the duty of counsel to
+be the keeper of the conscience of the client;
+not to suffer him, through the influence of his
+feelings or interest, to do or say anything wrong
+in itself, and of which he would himself afterwards
+repent. This guardianship may be carefully,
+and at the same time kindly exerted.
+One particular will be mentioned in which
+its exercise is frequently called for. The client
+will be often required, in the course of a
+cause, to make affidavits of various kinds.
+There is no part of his business with his client,
+in which a lawyer should be more cautious, or
+even punctilious, than this. He should be
+careful lest he incur the moral guilt of subornation
+of perjury, if not the legal offence. An
+attorney may have communications with his
+client in such a way, in instructing him as to<span class='pagenum'><a name="Page_55" id="Page_55">[Pg 55]</a></span>
+what the law requires him to state under oath
+or affirmation, in order to accomplish any particular
+object in view, as to offer an almost
+irresistible temptation and persuasion to stretch
+the conscience of the affiant up to the required
+point. Instead of drawing affidavits, and permitting
+them to be sworn to as a matter of
+course, as it is to be feared is too often the case,
+counsel should on all occasions take care to
+treat an oath with great solemnity, as a transaction
+to be very scrupulously watched, because
+involving great moral peril as well as liability
+to public disgrace and infamy. It lies especially
+in the way of the profession to give a high
+tone to public sentiment upon this all-important
+subject, the sacredness of an oath. It is
+always the wisest and best course, to have an
+interview with the client, and draw from him
+by questions, whether he knows the facts which
+you know he is required to state, so that you
+may judge whether, as a conscientious man, he
+ought to make such affidavit.</p>
+
+<p>Another particular may be adverted to: the
+attempt to cover property from the just demands<span class='pagenum'><a name="Page_56" id="Page_56">[Pg 56]</a></span>
+of creditors. It is to be feared that gentlemen
+of the Bar sometimes shut their eyes
+and, under the influence of feelings of commiseration
+for an unfortunate client, feign not
+to see what is really very palpable to everybody
+else. Surely they ought never to sanction,
+directly or indirectly such shams, especially
+when the machinery of a judicial sale is introduced
+more securely to accomplish the object.
+A purchase is made in the name of a friend for
+the debtor's benefit and with the debtor's money,
+though it may be hard to make that appear by
+legal evidence. When advice is asked, as it
+sometimes is, how such a thing may be safely
+and legally done, the idea held prominently
+before the party by his counsel should be, that
+his estate is the property of his creditors, and
+that nothing but their consent will justify an
+appropriation of any part of it to his benefit.</p>
+
+<p>Lawyers too may very materially assist in
+giving a high tone to public sentiment in the
+matter of stay and exemption laws. It is not
+every case in which a man has a legal that he
+has a moral right to claim the benefit of such<span class='pagenum'><a name="Page_57" id="Page_57">[Pg 57]</a></span>
+laws. When a debtor with ample means to
+pay only wants to harass and worry his creditor,
+who has resorted to legal process and obtained
+a judgment, by keeping him out of his
+money, as it is often expressed, as long as he
+can; or where he wishes to take advantage of
+hard times to make more than legal interest,
+or with concealed means unknown to the execution
+plaintiff, claims the exemption: these
+are cases which counsel ought to hold up in
+their proper light to those whom they advise,
+and wash their hands of the responsibility of
+them. According to the Jewish law, the cloak
+or outer garment, which was generally used by
+the poorer classes as a covering during sleep,
+could not be retained by the creditor to whom
+it had been given in pledge, and of course was
+exempt by law from seizure for debt; and our
+blessed Saviour, in his sermon on the mount,
+has been supposed to refer to this exemption
+law, when he said: "And if any man will sue
+thee at the law and take away thy coat, let him
+have thy cloak also;" that is, confine not
+yourself in your transactions with your fellow-men<span class='pagenum'><a name="Page_58" id="Page_58">[Pg 58]</a></span>
+to giving them simply the strict measure of
+their legal rights: give them all that is honestly
+theirs as far as you have ability, whether the
+law affords them a remedy or not. There have
+been some noble instances of bankrupts who,
+upon subsequently retrieving their fortunes,
+have fully discharged all their old debts, principal
+and interest, though released or barred
+by the Statute of Limitations; but such instances
+would be more common if the spirit of the high
+and pure morality, which breathes through the
+sermon on the mount, prevailed more extensively.</p>
+
+<p>An important clause in the official oath is
+"to delay no man's cause for lucre or malice."
+It refers, no doubt, primarily, to the cause intrusted
+to the attorney, and prohibits him from
+resorting to such means for the purpose of procuring
+more fees, or of indulging any feeling
+he may have against his client personally. Such
+conduct would be a clear case of a violation of
+the oath. But it is a question, also, whether
+the case generally, in which he is retained, is<span class='pagenum'><a name="Page_59" id="Page_59">[Pg 59]</a></span>
+not comprehended.<a name="FNanchor_23_23" id="FNanchor_23_23"></a><a href="#Footnote_23_23" class="fnanchor">[23]</a> How far, then, can he
+safely go in delaying the cause for the benefit
+of, and in pursuance of the instructions of his
+client? A man comes to him and says: "I
+have no defence to this claim; it is just and
+due, but I have not the means to pay it; I want
+all the time you can get for me." The best
+plan in such instances, is, no doubt, at once<span class='pagenum'><a name="Page_60" id="Page_60">[Pg 60]</a></span>
+frankly to address his opponent, and he will
+generally be willing to grant all the delay
+which he knows, in the ordinary course can
+be gained, and perhaps more, as a consideration
+for his own time and trouble saved. If, however,
+that be impracticable, it would seem that
+the suitor has a right to all the delay, which is
+incident to the ordinary course of justice. The
+counsel may take all means for this purpose,
+which do not involve artifice or falsehood in
+himself or the party. The formal pleas put in
+are not to be considered as false in this aspect,
+except such as are required to be sustained by
+oath. In an ejectment, for example, an appearance
+need not be entered until the second term,
+the legislature having seen fit to give that much
+respite to the unjust possessor of real estate.
+But to stand by and see a client swear off a
+case on account of the absence of a material
+witness, when he knows that no witness can be
+material; or further to make affidavit that his
+appeal or writ of error is not intended for delay,
+when he knows that it is intended for
+nothing else, no high-minded man will be privy<span class='pagenum'><a name="Page_61" id="Page_61">[Pg 61]</a></span>
+or consent to such actions, much less have any
+active participation in them.</p>
+
+<p>Subject, however, to the qualifications which
+have been stated, when a cause is undertaken,
+the great duty which the counsel owes to his
+client, is an immovable fidelity. Every consideration
+should induce an honest and honorable
+man to regard himself, as far as the cause
+is concerned, as completely identified with his
+client. The criminal and disgraceful offence
+of taking fees of two adversaries, of allowing
+himself to be approached corruptly, whether
+directly or indirectly, with a view to conciliation,
+ought, like parricide in the Athenian law,
+to be passed over in silence in a code of professional
+ethics.<a name="FNanchor_24_24" id="FNanchor_24_24"></a><a href="#Footnote_24_24" class="fnanchor">[24]</a> All considerations of self
+should be sunk by the lawyer in his duty to
+the cause. The adversary may be a man of
+station, wealth, and influence; his good will
+may be highly valuable to him; his enmity
+may do him great injury. He should not permit<span class='pagenum'><a name="Page_62" id="Page_62">[Pg 62]</a></span>
+such thoughts to arise in his mind. He
+should do his duty manfully, without fear, favor,
+or affection.</p>
+
+<p>At the same time, let it be observed, that
+no man ought to allow himself to be hired to
+abuse the opposite party. It is not a desirable
+professional reputation to live and die with,
+that of a rough tongue, which makes a man to
+be sought out, and retained to gratify the malevolent
+feelings of a suitor in hearing the
+other side well lashed and vilified. An opponent
+should always be treated with civility and
+courtesy, and if it be necessary to say severe
+things of him or his witnesses, let it be done
+in the language, and with the bearing, of a
+gentleman. There is no point in which it becomes
+an advocate to be more cautious, than
+in his treatment of the witnesses. In general,
+fierce assaults upon them, unnecessary trifling
+with their feelings, rough and uncivil behavior
+towards them in cross-examination, whilst it
+may sometimes exasperate them to such a
+pitch, that they will perjure themselves in the
+drunkenness of their passion, still, most generally<span class='pagenum'><a name="Page_63" id="Page_63">[Pg 63]</a></span>
+tells badly on the jury. They are apt to
+sympathize with a witness under such circumstances.<a name="FNanchor_25_25" id="FNanchor_25_25"></a><a href="#Footnote_25_25" class="fnanchor">[25]</a>
+It is as well unwise as unprofessional,
+in counsel, to accuse a witness of having
+forsworn himself, unless some good ground,
+other than the mere instruction of the client,
+is present in the evidence to justify it. He
+may sift most searchingly, and yet with a manner
+and courtesy which affords no ground for
+irritation, either in witness or opponent; and
+in such case, if his questions produce irritation,<span class='pagenum'><a name="Page_64" id="Page_64">[Pg 64]</a></span>
+it is a circumstance which will weigh in
+his favor.</p>
+
+<p>The practitioner owes to his client, with
+unshaken fidelity, the exertion of all the industry
+and application of which he is capable
+to become perfect master of the questions at
+issue, to look at them in all their bearings, to
+place himself in the opposite interest, and to
+consider and be prepared as far as possible, for
+all that may be said or done on the contrary
+part. The duty of full and constant preparation,
+is too evident to require much elaboration.
+It is better, whenever it is possible to do so, to
+make this examination immediately upon the
+retainer, and not to postpone it to later stages
+in the proceedings. The opportunity is often
+lost, of ascertaining facts, and securing evidence,
+from putting off till too late, the business
+of understanding thoroughly all that it
+will be necessary to adduce on the trial. In
+this way, a lawyer will attain what is very important,
+that his client may be always prepared,
+as well as himself, have his attention alive to
+his case, know what witnesses are important,<span class='pagenum'><a name="Page_65" id="Page_65">[Pg 65]</a></span>
+and keep a watch upon them, so that their
+testimony may not be lost, and upon the movements
+of his adversary, lest he should at any
+time be taken by surprise. It would be an
+excellent rule for him, at short stated periods,
+to make an examination of the record of every
+case which he has under his charge. It always
+operates disadvantageously to an attorney in
+the eyes of those who employ him, as well as
+the public, when he fails in consequence of
+some neglect or oversight. Frequent applications
+to the court, to relieve him from the consequences
+of his inattention, tell badly on his
+character and business. He may be able to
+make very plausible excuses; but the public
+take notice, that some men with large business
+never have occasion to make such excuses, and
+that other men with less, are constantly making
+them. Every instance of the kind helps to
+make up such a character. A young man
+should be particularly cautious, and dread such
+occurrences as highly injurious to his prospects.
+If he escapes the notice and animadversion of
+his constituent, and the legal consequences of<span class='pagenum'><a name="Page_66" id="Page_66">[Pg 66]</a></span>
+his neglect, by the intervention of the court,
+or the indulgence of his opponent, the members
+of the Bar are lynx-eyed in observing such
+things.</p>
+
+<p>It may appear like digressing from our subject,
+to speak of such qualities as attention,
+accuracy, and punctuality, but like the minor
+morals of common life, they are little rills
+which at times unite and form great rivers. A
+life of dishonor and obscurity, if not ignominy,
+has often taken its rise from the fountain of a
+little habit of inattention and procrastination.
+System is everything. It can accomplish wonders.
+By this alone, as by a magic talisman,
+may time be so economized that business can
+be attended to and opportunities saved for
+study, general reading, exercise, recreation,
+and society. "A man that is young in years,"
+says Lord Bacon, "may be old in hours, if he
+has lost no time." Hurry and confusion result
+from the want of system; and the mind can
+never be clear when a man's papers and business
+are in disorder. It is recorded of the pensionary
+De Witt, of the United Provinces, who<span class='pagenum'><a name="Page_67" id="Page_67">[Pg 67]</a></span>
+fell a victim to the fury of the populace in the
+year 1672, that he did the whole business of
+the republic, and yet had time left for relaxation
+and study in the evenings. When he was
+asked how he could possibly bring this to pass,
+his answer was, that "nothing was so easy;
+for that it was only doing one thing at a time,
+and never putting off anything till to-morrow
+that could he done to-day." "This steady and
+undissipated attention to one object," remarks
+Lord Chesterfield, in relating this anecdote,
+"is a sure mark of a superior genius." It is
+of the highest importance, also, that a lawyer
+should in early professional life, cultivate the
+habit of accuracy. It is a great advantage
+over opposing counsel,&mdash;a great recommendation
+in the eyes of intelligent mercantile and
+business men. A professional note to a merchant
+carelessly written will often of itself produce
+an unfavorable impression on his mind;
+and that impression he may communicate to
+many others. The importance of a good handwriting
+cannot be overrated. A plain legible
+hand every man can write who chooses to take<span class='pagenum'><a name="Page_68" id="Page_68">[Pg 68]</a></span>
+the pains. A good handwriting is a passport
+to the favor of clients, and to the good graces
+of judges, when papers come to be submitted
+to them. It would be a good rule for a young
+lawyer, though at first perhaps irksome and
+inconvenient, never to suffer a letter or paper
+to pass from his hands with an erasure or interlineation.
+The time and trouble it may cost
+at the outset will be repaid in the end by the
+habit he will thereby acquire of transacting
+his business with care, neatness, and accuracy.</p>
+
+<p>He cannot be faithful to his clients unless
+he continues to be a hard student of the learning
+of his profession. Not merely that he
+should thoroughly investigate the law applicable
+to every case which may be intrusted to
+him; though that, besides its paramount necessity
+to enable him to meet the responsibility
+he has assumed to that particular client, will
+be the subsidiary means of important progress
+in his professional acquisitions. "Let any
+person," says Mr. Preston, "study one or two
+heads of the law fully and minutely, and he
+will have laid the foundation or acquired the<span class='pagenum'><a name="Page_69" id="Page_69">[Pg 69]</a></span>
+aptitude for comprehending other heads of the
+law."<a name="FNanchor_26_26" id="FNanchor_26_26"></a><a href="#Footnote_26_26" class="fnanchor">[26]</a> But, besides this, he should pursue
+the systematic study of his profession upon
+some well-matured plan. When admitted to
+the Bar, a young man has but just begun, not
+finished, his legal education. If he have mastered
+some of the most general elementary
+principles, and has acquired a taste for the
+study, it is as much as can be expected from
+his clerkship. There are few young men who
+come to the Bar, who cannot find ample time
+in the first five or seven years of their novitiate,
+to devote to a complete acquisition of the
+science they profess, if they truly feel the need
+of it, and resolve to attain it. The danger is
+great that from a faulty preparation,&mdash;from not
+being made to see and appreciate the depth,
+extent, and variety of the knowledge they are
+to seek, they will mistake the smattering they
+have acquired for profound attainments. The
+anxiety of the young lawyer is a natural one
+at once to get business&mdash;as much business as<span class='pagenum'><a name="Page_70" id="Page_70">[Pg 70]</a></span>
+he can. Throwing aside his books, he resorts
+to the many means at hand of gaining notoriety
+and attracting public attention, with a view
+of bringing clients to his office. Such an one
+in time never fails to learn much by his mistakes,
+but at a sad expense of character, feeling,
+and conscience. He at last finds that in
+law, as in every branch of knowledge, "a little
+learning is a dangerous thing;" that what he
+does not know falsifies often in its actual application
+that which he supposed he certainly
+did know; and after the most valuable portion
+of his life has been frittered away upon objects
+unworthy of his ambition, he is too apt to conclude
+that it is now too late to redeem his
+time; he finds that he has lost all relish for
+systematic study, and when he is driven to the
+investigation of particular questions, is confounded
+and embarrassed&mdash;unable to thread
+his way through the mazes of authorities, to
+reconcile apparently conflicting cases, or deduce
+any satisfactory conclusion from them&mdash;in
+short, he has no greater aptitude, accuracy,
+and discrimination than when he set out in<span class='pagenum'><a name="Page_71" id="Page_71">[Pg 71]</a></span>
+the beginning of his studies. No better advice
+can be given to a young practitioner, than
+to confine himself generally to his office and
+books, even if this should require self-denial
+and privation, to map out for himself a course
+of regular studies, more or less extended, according
+to circumstances, to aim at mastering
+the works of the great luminaries of the science,
+Coke, Fearne, Preston, Powell, Sugden, and
+others, not forgetting the maxim, <i>melius est
+petere fontes quam sectari rivulos</i>, and to investigate
+for himself the most important and
+interesting questions, by an examination and
+research of the original authorities. "He that
+reacheth deepest seeth the amiable and admirable,
+secrets of the law,"<a name="FNanchor_27_27" id="FNanchor_27_27"></a><a href="#Footnote_27_27" class="fnanchor">[27]</a> and thus may the
+student "proceed in his reading with alacrity,
+and set upon and know how to work into
+with delight these rough mines of hidden
+treasure."<a name="FNanchor_28_28" id="FNanchor_28_28"></a><a href="#Footnote_28_28" class="fnanchor">[28]</a></p>
+
+<p>It may be allowed here to commend to
+most serious consideration, the remarks of one<span class='pagenum'><a name="Page_72" id="Page_72">[Pg 72]</a></span>
+of the most eminent of the profession&mdash;Horace
+Binney&mdash;a gentleman of our own Bar, whose
+example enforces and illustrates their value:
+"There are two very different methods of acquiring
+a knowledge of the laws of England,
+and by each of them, men have succeeded in
+public estimation to an almost equal extent.
+One of them, which may be called the old way,
+is a methodical study of the general system of
+law, and of its grounds and reasons, beginning
+with the fundamental law of estates and tenures,
+and pursuing the derivative branches in logical
+succession, and the collateral subjects in due
+order; by which the student acquires a knowledge
+of principles that rule in all departments
+of the science, and learns to feel as much as to
+know what is in harmony with the system and
+what not. The other is, to get an outline of the
+system, by the aid of commentaries, and to fill it
+up by the desultory reading of treatises and reports,
+according to the bent of the student, without
+much shape or certainty in the knowledge
+so acquired, until it is given by investigation
+in the course of practice. A good deal of law<span class='pagenum'><a name="Page_73" id="Page_73">[Pg 73]</a></span>
+may be put together by a facile or flexible man,
+in the second of these modes, and the public
+are often satisfied; but the profession itself
+knows the first, by its fruits, to be the most
+effectual way of making a great lawyer."<a name="FNanchor_29_29" id="FNanchor_29_29"></a><a href="#Footnote_29_29" class="fnanchor">[29]</a><span class='pagenum'><a name="Page_74" id="Page_74">[Pg 74]</a></span></p>
+
+<p>Such a course of study as is here recommended,
+is not the work of a day or a year.<span class='pagenum'><a name="Page_75" id="Page_75">[Pg 75]</a></span>
+In the meantime let business seek the young
+attorney; and though it may come in slowly,
+and at intervals, and promise in its character
+neither fame nor profit, still, if he bears in mind
+that it is an important part of his training,
+that he should understand the business he does
+thoroughly, that he should especially cultivate,
+in transacting it, habits of neatness, accuracy,
+punctuality, and despatch, candor towards his
+client, and strict honor towards his adversary,
+it may be safely prophesied that his business
+will grow as fast as it is good for him that it
+should grow; while he gradually becomes able
+to sustain the largest practice, without being
+bewildered and overwhelmed.<span class='pagenum'><a name="Page_76" id="Page_76">[Pg 76]</a></span></p>
+
+<p>Let him be careful, however, not to settle
+down into a mere lawyer. To reach the highest
+walks of the profession, something more is
+needed. Let polite literature be cultivated in
+hours of relaxation. Let him lose not his
+acquaintance with the models of ancient taste
+and eloquence. He should study languages,
+as well from their practical utility in a country
+so full of foreigners, as from the mental discipline,
+and the rich stores they furnish. He
+should cultivate a pleasing style, and an easy
+and graceful address. It may be true, that in
+a "court of justice, the veriest dolt that ever
+stammered a sentence, would be more attended
+to, with a case in point, than Cicero with all
+his eloquence, unsupported by authorities,"<a name="FNanchor_30_30" id="FNanchor_30_30"></a><a href="#Footnote_30_30" class="fnanchor">[30]</a>
+yet even an argument on a dry point of law,
+produces a better impression, secures a more
+attentive auditor in the judge, when it is constructed
+and put together with attention to the
+rules of the rhetorical art; when it is delivered,
+not stammeringly, but fluently; when facts and<span class='pagenum'><a name="Page_77" id="Page_77">[Pg 77]</a></span>
+principles, drawn from other fields of knowledge,
+are invoked to support and adorn it;
+when voice, and gesture, and animation, give
+it all that attraction which earnestness always
+and alone imparts. There is great danger that
+law reading, pursued to the exclusion of everything
+else, will cramp and dwarf the mind,
+shackle it by the technicalities with which it
+has become so familiar, and disable it from
+taking enlarged and comprehensive views even
+of topics falling within its compass as well as
+of those lying beyond its legitimate domain.
+An amusing instance of this is said to have
+occurred in the debate in the House of Commons,
+on the great question as to the right of
+the Parliament of Great Britain to tax the
+Colonies. At the close of the discussion, in
+which Fox and Burke, as well as others, had
+distinguished themselves, a learned lawyer
+arose and said that the real point on which the
+whole matter turned, had been unaccountably
+overlooked. In the midst of deep silence and
+anxious expectation from all quarters of the
+House, he proceeded to show that the lands of<span class='pagenum'><a name="Page_78" id="Page_78">[Pg 78]</a></span>
+the Colonies had been originally granted by
+the Crown, and were held <i>ut de honore</i>, as of
+the Manor of Greenwich, in the county of
+Kent; and thence he concluded that as the
+Manor of Greenwich was represented in Parliament,
+so the lands of the North American
+Colonies (by tenure, a part of the Manor) were
+represented by the knights of the shire for
+Kent.<a name="FNanchor_31_31" id="FNanchor_31_31"></a><a href="#Footnote_31_31" class="fnanchor">[31]</a></p>
+
+<p>Let me remark, too, before hastening to
+another topic more immediately connected with
+the duties of active professional life, that the
+cultivation of a taste for polite literature has
+other importance besides its value as a preparation<span class='pagenum'><a name="Page_79" id="Page_79">[Pg 79]</a></span>
+and qualification for practice and forensic
+contests. Nothing is so well adapted to fill
+up the interstices of business with rational enjoyment,
+to make even a solitary life agreeable,
+and to smooth pleasantly and honorably the
+downward path of age. The mental vigor of
+one who is fond of reading, other things being
+equal, becomes impaired at a much later period
+of life. The lover of books has faithful companions
+and friends, who will never forsake
+him under the most adverse circumstances.
+"As soon as I found," said Sir Samuel Romilly,
+"that I was to be a busy lawyer for life, I
+strenuously resolved to keep up my habit of
+non-professional reading; for I had witnessed
+so much misery in the last years of many great
+lawyers, whom I had known, from their loss of
+all taste for books, that I regarded their fate
+as my warning." Mr. Gibbon was wont to
+say that he would not exchange his love of
+reading for the wealth of the Indies. It is indeed
+a fortune, of which the world's reverses
+can never deprive us. It fortifies the soul
+against the calamities of life. It moderates,<span class='pagenum'><a name="Page_80" id="Page_80">[Pg 80]</a></span>
+if it is not strong enough to govern and control
+the passions. It favors not the association
+of the cup, the dice-box, or the debauch. The
+atmosphere of a library is uncongenial with
+them. It clings to home, nourishes the domestic
+affections, and the hopes and consolations
+of religion.</p>
+
+<p>Another very delicate and often embarrassing
+question in the relation of attorney and
+client is in regard to the subject of compensation
+for professional services.</p>
+
+<p>In all countries advanced in civilization, and
+whose laws and manners have attained any degree
+of refinement, there has arisen an order
+of advocates devoted to prosecuting or defending
+the lawsuits of others. Before the tribunals
+of Athens, although the party pleaded his
+own cause, it was usual to have the oration
+prepared by one of an order of men devoted to
+this business, and to compensate him liberally
+for his skill and learning. Many of the orations
+of Isocrates, which have been handed
+down to us, are but private pleadings of this
+character. He is said to have received one fee<span class='pagenum'><a name="Page_81" id="Page_81">[Pg 81]</a></span>
+of twenty talents, about eighteen thousand dollars
+of our money, for a speech that he wrote
+for Nicocles, king of Cyprus. Still, from all
+that appears, the compensation thus received
+was honorary or gratuitous merely. Among
+the early institutions of Rome, the relation of
+patron and client, which existed between the
+patrician and plebeian, bound the former to
+render the latter assistance and protection in
+his lawsuits, with no other return than the general
+duty, which the client owed to his patron.
+As every patrician could not be a sufficiently
+profound lawyer to resolve all difficulties, which
+might arise in the progress of a complex system
+of government and laws, though he still might
+accomplish himself in the art of eloquence,
+there arose soon a new order of men, the jurisconsults.
+They also received no compensation.
+On the public days of market, or assembly, the
+masters of the art were seen walking in the
+forum, ready to impart the needful advice to
+the meanest of their fellow-citizens, from whose
+votes on a future occasion, they might solicit a
+grateful return. As their years and honors<span class='pagenum'><a name="Page_82" id="Page_82">[Pg 82]</a></span>
+increased, they seated themselves at home, on
+a chair or throne, to expect with patient gravity
+the visits of their clients, who at the dawn of
+day, from the town and country, began to thunder
+at their doors.<a name="FNanchor_32_32" id="FNanchor_32_32"></a><a href="#Footnote_32_32" class="fnanchor">[32]</a> Often, indeed, the patron
+was able in his own person to exercise the
+office both of advocate and counsellor. It was
+only in the more glorious, because the more
+virtuous, period of the republic, that the relation
+was sustained upon so honorable a foundation.
+In the progress of society, the business
+of advocating causes became a distinct profession;
+and then it was usual to pay a fee in
+advance, which was called a gratuity or present.
+As this was a mere honorary recompense, the
+client was under no legal obligation to pay it.
+But the result necessarily was, that if the usual
+present was not given, the advocate did not
+consider himself bound in honor to undertake
+the advocation of the cause before the courts.
+Afterwards, Marcus Cincius Alimentus, the<span class='pagenum'><a name="Page_83" id="Page_83">[Pg 83]</a></span>
+tribune of the people, procured the passage of
+the law known as the <i>Cincian</i> law, prohibiting
+the patron or advocate from receiving any
+money or other present for any cause; and annulling
+all gratuities or presents made by the
+client to the patron or advocate. But as no
+penalty was prescribed for the breach of the
+law, it of course became a dead letter. The
+Emperor Augustus afterwards re-enacted the
+Cincian law, and prescribed penalties for its
+breach. But towards the end of his reign, the
+advocates were again authorized to receive fees
+or presents from their clients. The Emperor
+Tiberius also permitted them to receive such
+forced gratuities. This led to the abuse referred
+to by Tacitus, and induced the Senate to insist
+upon the enforcement of the re-enactment of
+the Cincian law, or rather a law limiting the
+amount of the fees of advocates.<a name="FNanchor_33_33" id="FNanchor_33_33"></a><a href="#Footnote_33_33" class="fnanchor">[33]</a> Nero revoked<span class='pagenum'><a name="Page_84" id="Page_84">[Pg 84]</a></span>
+the law of Claudian, which was subsequently
+re-enacted by the Emperor Trajan,
+with the additional restriction that the advocate
+should not be permitted to receive his fee or
+gratuity, until the cause was decided. The
+younger Pliny mentions a law, which authorized
+the advocate, after the pleadings in the
+cause had been made and the judgment had
+been given, to receive the fee, which might be
+voluntarily offered by the client, either in
+money or a promise to pay. Erskine, in his
+Institutes of the Law of Scotland, understands
+the law in the Digest <i>De Extraordinariis Cognitionibus</i>
+as authorizing a suit for the fee of a
+physician or advocate without a previous agreement
+for a specific sum.<a name="FNanchor_34_34" id="FNanchor_34_34"></a><a href="#Footnote_34_34" class="fnanchor">[34]</a></p>
+
+<p><span class='pagenum'><a name="Page_85" id="Page_85">[Pg 85]</a></span></p><p>The consequences may be best told in the
+impressive language of the historian of the
+Decline and Fall of the Empire: "The noble
+art, which had once been preserved as the
+sacred inheritance of the patricians, was fallen
+into the hands of freedmen and plebeians, who,
+with cunning rather than with skill, exercised
+a sordid and pernicious trade. Some of them
+procured admittance into families for the purpose
+of fomenting differences, of encouraging
+suits, and of preparing a harvest of gain for
+themselves or their brethren. Others, recluse
+in their chambers, maintained the dignity of
+legal professors, by furnishing a rich client with
+subtleties to confound the plainest truth, and<span class='pagenum'><a name="Page_86" id="Page_86">[Pg 86]</a></span>
+with arguments to color the most unjustifiable
+pretensions. The splendid and popular class
+was composed of the advocates, who filled the
+Forum with the sound of their turgid and
+loquacious rhetoric. Careless of fame and of
+justice, they are described for the most part,
+as ignorant and rapacious guides, who conducted
+their clients through a maze of expense,
+of delay, and of disappointment; from whence,
+after a tedious series of years, they were at
+length dismissed when their patience and fortune
+were almost exhausted."<a name="FNanchor_35_35" id="FNanchor_35_35"></a><a href="#Footnote_35_35" class="fnanchor">[35]</a> Is not this
+probably the history of the decline of the profession
+in all countries from an honorable office
+to a money-making trade?</p>
+
+<p>It is the established law of England, that a
+counsellor or barrister cannot maintain a suit
+for his fees.<a name="FNanchor_36_36" id="FNanchor_36_36"></a><a href="#Footnote_36_36" class="fnanchor">[36]</a> There is in that country a class<span class='pagenum'><a name="Page_87" id="Page_87">[Pg 87]</a></span>
+of mere attorneys, who attend to legal business
+out of court, who bring suits and conduct them
+up to issue; but who are not allowed to speak
+in court. This latter privilege is confined to
+serjeants and barristers. Attorneys are regulated
+by statute, and are subject to many restrictions;
+having a rate of fees, settled either
+by statute or established usage; and required<span class='pagenum'><a name="Page_88" id="Page_88">[Pg 88]</a></span>
+to be fixed by the taxation of an officer of the
+court before a suit can be brought for them.
+Barristers are admitted only under the regulations
+established by the various inns of court;
+and the serjeants, who long had the monopoly
+of the Bar of the Common Pleas, are appointed
+by patent from the king. A barrister cannot
+be an attorney.<a name="FNanchor_37_37" id="FNanchor_37_37"></a><a href="#Footnote_37_37" class="fnanchor">[37]</a></p>
+
+<p>In this country, there is in general no distinction
+between attorneys and counsellors.
+The same persons fulfil the duties of both.
+Hence no difference is made between their
+right to recover compensation for services in
+the one capacity or the other.<a name="FNanchor_38_38" id="FNanchor_38_38"></a><a href="#Footnote_38_38" class="fnanchor">[38]</a> In Pennsylvania,
+it was held at one time that an attorney<span class='pagenum'><a name="Page_89" id="Page_89">[Pg 89]</a></span>
+could not recover, without an express promise,
+anything beyond the trifling and totally inadequate
+sum provided in the fee-bill. That pure
+and eminent jurist Chief Justice Tilghman
+thought that the policy of refusing a legal
+remedy for anything beyond that had not been
+adopted without great consideration.<a name="FNanchor_39_39" id="FNanchor_39_39"></a><a href="#Footnote_39_39" class="fnanchor">[39]</a> He
+stands not alone in the opinion that it has been
+neither for the honor nor profit of the Bar to
+depart from the ancient rule.<a name="FNanchor_40_40" id="FNanchor_40_40"></a><a href="#Footnote_40_40" class="fnanchor">[40]</a> It has been
+departed from in this State, and the early decision
+overruled, however; and it must be
+frankly admitted, that the current of decisions
+in our sister States is in the same way.<a name="FNanchor_41_41" id="FNanchor_41_41"></a><a href="#Footnote_41_41" class="fnanchor">[41]</a></p>
+
+<p><span class='pagenum'><a name="Page_90" id="Page_90">[Pg 90]</a></span></p><p>It is supposed that the ancient rule was artificial
+in its structure, and practically unjust,&mdash;that
+it is wholly inconsistent with our ideas of
+equality to suppose that the business or profession,
+by which any one earns the daily bread
+of himself or of his family, is so much more
+honorable than the business of other members
+of the community as to prevent him from receiving
+a fair compensation for his services on
+that account.<a name="FNanchor_42_42" id="FNanchor_42_42"></a><a href="#Footnote_42_42" class="fnanchor">[42]</a> It has been pronounced ridiculous<span class='pagenum'><a name="Page_91" id="Page_91">[Pg 91]</a></span>
+to attempt to perpetuate a monstrous legal
+fiction, by which the hard-working lawyers of
+our day, toiling till midnight in their offices,
+are to be regarded in the eye of the law in the
+light of the patrician jurisconsults of ancient
+Rome, when</p>
+
+<div class="poem"><div class="stanza">
+<span class="i2">&mdash;&mdash; dulce diu fuit et solemne, reclusa<br /></span>
+<span class="i0">Mane domo vigilare, clienti promere jura,&mdash;<br /></span>
+</div></div>
+
+<p>and who at daybreak received the early visits
+of their humble and dependent clients, and
+pronounced with mysterious brevity the oracles
+of the law.<a name="FNanchor_43_43" id="FNanchor_43_43"></a><a href="#Footnote_43_43" class="fnanchor">[43]</a></p>
+
+<p>These are arguments which are more plausible
+than sound: they are imposing, but not
+solid. The question really is, what is best for
+the people at large,&mdash;what will be most likely
+to secure them a high-minded, honorable Bar?
+It is all-important that the profession should
+have and deserve that character. A horde
+of pettifogging, barratrous, custom-seeking,<span class='pagenum'><a name="Page_92" id="Page_92">[Pg 92]</a></span>
+money-making lawyers, is one of the greatest
+curses with which any state or community can
+be visited. What more likely to bring about
+such a result than a decision, which strips the
+Bar of its character as a learned profession, on
+the principle avowed by one court, that it is
+now a calling as much as any mechanical
+art,&mdash;or by another, in effect, that the order
+of things is in the present condition of society
+reversed, and clients are really the <i>patrons</i> of
+their attorneys? A more plausible reason is
+that the client is safer from the oppression of
+extortionate counsel, by putting both upon the
+equal footing of legal right and obligation. It
+would appear, however, better that the parties
+should make an express agreement before or
+at the time of retainer, or that the amount
+should be left to the justice of the counsel, and
+the honor and liberality of the client subsequently.
+Every judge, who has ever tried a
+case between attorney and client, has felt the
+delicacy and difficulty of saying what is the
+measure of just compensation. It is to be
+graduated, according to a high legal authority,<span class='pagenum'><a name="Page_93" id="Page_93">[Pg 93]</a></span>
+with a proper reference to the nature of the
+business performed by the counsel for the client,
+and his standing in his profession for
+learning and skill; whereby the value of his
+services is enhanced to his client.<a name="FNanchor_44_44" id="FNanchor_44_44"></a><a href="#Footnote_44_44" class="fnanchor">[44]</a> Is then
+the standing and character of the counsel in
+his profession for learning and skill to be a
+question of fact to be determined by the jury
+in every case in which a lawyer sues his client?
+How determined, if necessary to the decision
+of the question? Not surely by the crude
+opinions of the jurors; but by testimony of
+members of the same profession on the subject.
+This never is done; it would be a very difficult
+as well as delicate question for a lawyer
+to pronounce upon the standing of a professional
+brother. The most that can be done is
+to call gentlemen to say what they would have
+considered reasonable for such services, had<span class='pagenum'><a name="Page_94" id="Page_94">[Pg 94]</a></span>
+they been performed by themselves. Some
+may testify up to a very high point, from an
+excusable, though foolish vanity; others to a
+very low one, from the despicable, desire of
+attracting custom to a cheap shop.<a name="FNanchor_45_45" id="FNanchor_45_45"></a><a href="#Footnote_45_45" class="fnanchor">[45]</a> No one
+can ever have seen such a cause tried without
+feeling, that the Bar had received by it an impulse
+downwards in the eyes of bystanders and
+the community. The case is thrown into the
+jury-box, to be decided at haphazard, according
+as the twelve men may chance to think or
+feel. He, who narrowly watches such controversies,
+cannot fail to see that the right of a
+counsel to enforce his claim for legal compensation
+is far from being calculated to protect
+the client from oppression and extortion.</p>
+
+<p>It is not worth while, however, to quarrel
+with the decision. Let us inquire rather what
+should be the course of counsel, without regard
+to it. He certainly owes it to his profession,<span class='pagenum'><a name="Page_95" id="Page_95">[Pg 95]</a></span>
+as well as himself, that when the client has the
+ability, his services should be recompensed;
+and that according to a liberal standard.<a name="FNanchor_46_46" id="FNanchor_46_46"></a><a href="#Footnote_46_46" class="fnanchor">[46]</a>
+There are many cases, in which it will be his
+duty, perhaps more properly his privilege, to
+work for nothing. It is to be hoped, that the
+time will never come, at this or any other Bar
+in this country, when a poor man with an
+honest cause, though without a fee, cannot
+obtain the services of honorable counsel, in
+the prosecution or defence of his rights. But
+it must be an extraordinary&mdash;a very peculiar
+case&mdash;that will justify an attorney in resorting
+to legal proceedings, to enforce the payment of
+fees. It is better that he should be a loser,
+than have a public contest upon the subject
+with a client. The enlightened Bar of Paris,
+have justly considered the character of their
+order involved in such proceedings; and although<span class='pagenum'><a name="Page_96" id="Page_96">[Pg 96]</a></span>
+by the law of France, an advocate may
+recover for his fees by suit, yet they regard it
+as dishonorable, and those who should attempt
+to do it, would be immediately stricken from
+the roll of attorneys.<a name="FNanchor_47_47" id="FNanchor_47_47"></a><a href="#Footnote_47_47" class="fnanchor">[47]</a></p>
+
+<p><span class='pagenum'><a name="Page_97" id="Page_97">[Pg 97]</a></span></p><p>Regard should be had to the general usage
+of the profession, especially as to the rates of
+commission to be charged for the collection of
+undefended claims. Except in this class of
+cases, agreements between counsel and client
+that the compensation of the former shall depend
+upon final success in the lawsuit&mdash;in
+other words contingent fees&mdash;however common
+such agreements may be, are of a very dangerous
+tendency, and to be declined in all ordinary
+cases. In making his charge, after the
+business committed to him has been completed,
+as an attorney may well take into consideration
+the general ability of his client to pay, so
+he may also consider the pecuniary benefit,
+which may have been derived from his services.
+For a poor man, who is unable to pay at all,
+there may be a general understanding that the
+attorney is to be liberally compensated in case<span class='pagenum'><a name="Page_98" id="Page_98">[Pg 98]</a></span>
+of success. What is objected to, is an agreement
+to receive a certain part or proportion of
+the sum, or subject-matter, in the event of a
+recovery, and nothing otherwise.</p>
+
+<p>It is unnecessary to inquire here whether
+such a contract is void as champertous, and
+contrary to public policy. None of the English
+statutes on the subject of champerty have been
+reported as in force here; but it was once a
+question whether it was not an offence at common
+law, independently altogether, of any
+statute enactment. Enlightened judges in
+several of our sister States have so considered
+it. "The purchase of a lawsuit," says Chancellor
+Kent, "by an attorney, is champerty in
+its most odious form; and it ought equally to
+be condemned on principles of public policy.
+It would lead to fraud, oppression, and corruption.
+As a sworn minister of the courts of
+justice, the attorney ought not to be permitted
+to avail himself of the knowledge he acquires
+in his professional character, to speculate in
+lawsuits. The precedent would tend to corrupt
+the profession, and produce lasting mischief<span class='pagenum'><a name="Page_99" id="Page_99">[Pg 99]</a></span>
+to the community."<a name="FNanchor_48_48" id="FNanchor_48_48"></a><a href="#Footnote_48_48" class="fnanchor">[48]</a> "This is not the
+time nor place," says Chief Justice Gibson,
+"to discuss the legality of contingent fees;
+though it be clear that if the British statutes
+of champerty were in force here, such fees
+would be prohibited by them. But a contract
+of the sort is certainly not to be encouraged
+by implication, from a questionable usage, nor
+established by less than a positive stipulation."<a name="FNanchor_49_49" id="FNanchor_49_49"></a><a href="#Footnote_49_49" class="fnanchor">[49]</a>
+A contract to allow a compensation
+for services in procuring the passage of a private
+Act of Assembly, has been held to be
+unlawful and void, as against public policy.<span class='pagenum'><a name="Page_100" id="Page_100">[Pg 100]</a></span><a name="FNanchor_50_50" id="FNanchor_50_50"></a><a href="#Footnote_50_50" class="fnanchor">[50]</a>
+"The practice," said Judge Rogers, in delivering
+the opinion of the court, "which has<span class='pagenum'><a name="Page_101" id="Page_101">[Pg 101]</a></span>
+generally obtained in this State, to allow a
+contingent compensation for legal services,
+has been a subject of regret; nor am I aware
+of any direct decision by which the practice
+has received judicial sanction in our courts."
+The case of <i>Ex parte Plitt</i>,<a name="FNanchor_51_51" id="FNanchor_51_51"></a><a href="#Footnote_51_51" class="fnanchor">[51]</a> however, recognizes
+fully the lawfulness of contingent fees,
+though in his opinion Judge Kane says: "It
+is not a practice to be generally commended,
+exposing honorable men not unfrequently to
+misapprehension and illiberal remark, and
+giving the apparent sanction of their example
+to conduct, which they would be among the
+foremost to reprehend. Such contracts may
+sometimes be necessary in a community such
+as that of Pennsylvania has been, and perhaps
+as it is yet; and when they have been made
+in abundant good faith&mdash;<i>uberrima fide</i>&mdash;without
+suppression or reserve of fact or exaggeration
+of apprehended difficulties, or under influence<span class='pagenum'><a name="Page_102" id="Page_102">[Pg 102]</a></span>
+of any sort or degree; and when the
+compensation bargained for is absolutely just
+and fair, so that the transaction is characterized
+throughout by 'all good fidelity to the client,'
+the court will hold such contracts to be valid.
+But it is unnecessary to say, that such contracts,
+as they can scarcely be excepted from
+the general rule, which denounces as suspicious
+the dealings of fiduciaries with those under
+their protection, must undergo the most exact
+and jealous scrutiny before they can expect the
+judicial ratification." Finally, the question of
+law may be considered as at rest in Pennsylvania
+by the decision of the Supreme Court in
+Patten <i>v.</i> Wilson,<a name="FNanchor_52_52" id="FNanchor_52_52"></a><a href="#Footnote_52_52" class="fnanchor">[52]</a> which recognized an agreement
+between counsel and client to pay him
+out of the verdict as an equitable assignment,
+and gave effect to it as against an attaching
+creditor.</p>
+
+<p>It is not, however, with the lawfulness, but
+with the policy and morality of the practice,
+that we are now dealing. Admitting its legality,<span class='pagenum'><a name="Page_103" id="Page_103">[Pg 103]</a></span>
+is it consistent with that high standard
+of moral excellence, which the members of this
+profession should ever propose to themselves?</p>
+
+<p>Let us look at what would be the results of
+such a practice, if it became general. If these
+are bad, if its tendency is to corrupt and degrade
+the character of the profession, then,
+however confident any man may feel in his
+moral power to ward off its evil influences from
+his own character and conduct, he should be
+careful not to encourage and give countenance
+to it by his example.</p>
+
+<p>It is one of that class of actions, which in
+particular instances may be indifferent; but
+their morality is to be tested by considering
+what would be the consequences of their general
+prevalence.</p>
+
+<p>It is to be observed, then, that such a contract
+changes entirely the relation of counsel,
+to the cause. It reduces him from his high
+position of an officer of the court and a minister
+of justice, to that of a party litigating his
+own claim. Having now a deep personal interest
+in the event of the controversy, he will<span class='pagenum'><a name="Page_104" id="Page_104">[Pg 104]</a></span>
+cease to consider himself subject to the ordinary
+rules of professional conduct. He is
+tempted to make success, at all hazards and
+by all means, the sole end of his exertions. He
+becomes blind to the merits of the case, and
+would find it difficult to persuade himself, no
+matter what state of facts might be developed
+in the progress of the proceedings, as to the
+true character of the transaction, that it was
+his duty to retire from it.</p>
+
+<p>It places his client and himself in a new and
+dangerous relation. They are no longer attorney
+and client, but partners. He has now an
+interest, which gives him a right to speak as
+principal, not merely to advise as to the law,
+and abide by instructions. It is either unfair
+to him or unfair to the client. If he thinks
+the result doubtful, he throws all his time, learning,
+and skill away upon what, in his estimation,
+is an uncertain chance. He cannot work
+with the proper spirit in such a case. If he
+believes that the result will be success, he secures
+in this way a higher compensation than
+he is justly entitled to receive.<span class='pagenum'><a name="Page_105" id="Page_105">[Pg 105]</a></span></p>
+
+<p>It is an undue encouragement to litigation.
+Men, who would not think of entering on a
+lawsuit, if they knew that they must compensate
+their lawyer whether they win or lose, are
+ready upon such a contingent agreement to try
+their chances with any kind of a claim. It
+makes the law more of a lottery than it is.</p>
+
+<p>The worst consequence is yet to be told,&mdash;its
+effect upon, professional character. It turns
+lawyers into higglers with their clients. Of
+course it is not meant that these are always its
+actual results; but they are its inevitable tendencies,&mdash;in
+many instances its practical working.
+To drive a favorable bargain with the suitor in
+the first place, the difficulties of the case are
+magnified and multiplied, and advantage taken
+of that very confidence, which led him to intrust
+his interests to the protection of the advocate.<a name="FNanchor_53_53" id="FNanchor_53_53"></a><a href="#Footnote_53_53" class="fnanchor">[53]</a>
+The parties are necessarily not on an<span class='pagenum'><a name="Page_106" id="Page_106">[Pg 106]</a></span>
+equal footing in making such a bargain. A
+high sense of honor may prevent counsel from
+abusing his position and knowledge; but all
+have not such high and nice sense of honor. If
+our example goes towards making the practice
+of agreements for contingent fees general, we
+assist in placing such temptations in the way
+of our professional brethren of all degrees&mdash;the
+young, the inexperienced, and the unwary, as
+well as those whose age and experience have
+taught them that a lawyer's honor is his brightest
+jewel, and to be guarded from being sullied,
+even by the breath of suspicion, with the most
+sedulous care.</p>
+
+<p>A gentleman of the largest experience and
+highest character for integrity and learning at
+the Philadelphia Bar, thus strongly confirms
+the views which have been here expressed on
+the subject of contingent fees: "And further,"
+says Mr. Price in his concluding advice to
+students, at the close of his Essay on Limitation
+and Lien, "permit me to advise and earnestly
+to admonish you, for the preservation of professional
+honor and integrity, to avoid the<span class='pagenum'><a name="Page_107" id="Page_107">[Pg 107]</a></span>
+temptation of bargaining for fees or shares of
+any estate or other claim, contingent upon a
+successful recovery. The practice directly
+leads to a disturbance of the peace of society
+and to an infidelity to the professional obligation
+promised to the court, in which is implied
+an absence of desire or effort of one in the
+ministry of the Temple of Justice, to obtain a
+success that is not just as well as lawful. It
+is true, as a just equivalent for many cases
+honorably advocated and incompetently paid
+by the poor, a compensation may and will be
+received, the more liberal because of the ability
+produced by success; but let it be the result
+of no bargain, exacted as a price before the
+service is rendered, but rather the grateful return
+for benefits already conferred. If rigid
+in your terms, in protection of the right of the
+profession to a just and honorable compensation,
+let it rather be in the amount of the
+required retainer, when it will have its proper
+influence in the discouragement of litigation."</p>
+
+<p>A lawyer should avoid, as far as possible, all
+transactions of business with his clients, not<span class='pagenum'><a name="Page_108" id="Page_108">[Pg 108]</a></span>
+only in regard to matters in suit in his hands,
+but in relation to other matters. He should
+avoid standing toward them, either in the relation
+of borrower or lender. A young practitioner
+should especially avoid borrowing of any
+one. Let him retrench, seek the humblest
+employment of drudgery rather than do it;
+but, if borrow he must, let it be of any one else
+than a client. All transactions of business
+between attorney and client are looked upon
+with eyes of suspicion and disfavor, in courts
+of justice.</p>
+
+<p>It is a settled doctrine of equity, in England,
+that an attorney cannot, while the business is
+unfinished in which he had been employed, receive
+any gift from his client, or bind his client
+in any mode to make him greater compensation
+for his services than he would have a right to
+demand if no contract should be made during
+the relation. If an attorney accept a gift from
+one thus connected with him, it may be recovered
+in a court of chancery, by the donor or
+his creditors, should it be necessary for them
+to assert a right to it to satisfy their demands.<span class='pagenum'><a name="Page_109" id="Page_109">[Pg 109]</a></span>
+When the relation of solicitor and client exists,
+and a security is taken by the solicitor
+from his client, the presumption is that the
+transaction is unfair; and the onus of proving
+its fairness is upon the solicitor.<a name="FNanchor_54_54" id="FNanchor_54_54"></a><a href="#Footnote_54_54" class="fnanchor">[54]</a> A man
+ought to be very careful of placing himself in
+a position to have any of his transactions regarded
+in that light. If it should ever come
+to be canvassed in court, the bandying of the<span class='pagenum'><a name="Page_110" id="Page_110">[Pg 110]</a></span>
+phrases, fraud and presumption of fraud, as
+applied to him, may, and probably will, have
+an unfavorable effect on his reputation. Most
+emphatically should it be said, let nothing
+tempt him, not even the knowledge and consent
+of the client, to keep the money, which
+may have come to his hands professionally, one
+single instant longer than is absolutely necessary.
+The consequences of any difficulty
+arising upon this head, will be fatal to his
+professional character and prospects.</p>
+
+<p>The official oath, to which reference has already
+more than once been made, obliges the
+attorney "to use no falsehood." It seems
+scarcely necessary to enforce this topic. Truth
+in all its simplicity&mdash;truth to the court, client,
+and adversary&mdash;should be indeed the polar star
+of the lawyer. The influence of only slight
+deviations from truth, upon professional character,
+is very observable. A man may as well
+be detected in a great as a little lie. A single
+discovery, among professional brethren, of a
+failure of truthfulness, makes a man the object
+of distrust, subjects him to constant mortification,<span class='pagenum'><a name="Page_111" id="Page_111">[Pg 111]</a></span>
+and soon this want of confidence extends
+itself beyond the Bar to those who employ the
+Bar. That lawyer's case is truly pitiable, upon
+the escutcheon of whose honesty or truth, rests
+the slightest tarnish.</p>
+
+<p>Let it be remembered and treasured in the
+heart of every student, that no man can ever
+be a truly great lawyer, who is not in every
+sense of the word, a good man. A lawyer,
+without the most sterling integrity, may shine
+for a while with meteoric splendor; but his
+light will soon go out in blackness of darkness.
+It is not in every man's power to rise to eminence
+by distinguished abilities. It is in every
+man's power, with few exceptions, to attain respectability,
+competence, and usefulness. The
+temptations which beset a young man in the
+outset of his professional life, especially if he
+is in absolute dependence upon business for his
+subsistence, are very great. The strictest principles
+of integrity and honor, are his only
+safety. Let him begin by swerving from truth
+or fairness, in small particulars, he will find his
+character gone&mdash;whispered away, before he<span class='pagenum'><a name="Page_112" id="Page_112">[Pg 112]</a></span>
+knows it. Such an one may not indeed be
+irrecoverably lost; but it will be years before
+he will be able to regain a firm foothold.
+There is no profession, in which moral character
+is so soon fixed, as in that of the law; there
+is none in which it is subjected to severer
+scrutiny by the public. It is well, that it is so.
+The things we hold dearest on earth,&mdash;our
+fortunes, reputations, domestic peace, the future
+of those dearest to us, nay, our liberty and
+life itself, we confide to the integrity of our
+legal counsellors and advocates. Their character
+must be not only without a stain, but
+without suspicion. From the very commencement
+of a lawyer's career, let him cultivate,
+above all things, truth, simplicity, and candor:
+they are the cardinal virtues of a lawyer. Let
+him always seek to have a clear understanding
+of his object: be sure it is honest and right,
+and then march directly to it. The covert, indirect,
+and insidious way of doing anything, is
+always the wrong way. It gradually hardens
+the moral faculties, renders obtuse the perception
+of right and wrong in human actions,<span class='pagenum'><a name="Page_113" id="Page_113">[Pg 113]</a></span>
+weighs everything in the balances of worldly
+policy, and ends most generally, in the practical
+adoption of the vile maxim, "that the end
+sanctifies the means." If it be true, as he has
+said, who, more than any mere man, before or
+since his day, understood the depths of human
+character, that one even may,</p>
+
+<div class="poem"><div class="stanza">
+<span class="i6">"By telling of it,<br /></span>
+<span class="i0">Make such a sinner of his memory;<br /></span>
+<span class="i0">To credit his own lie:"&mdash;<br /></span>
+</div></div>
+
+<p>we should be careful never to speak or act,
+without regard to the <i>morale</i> of our words or
+actions. A habit may and will grow to be a
+second nature.</p>
+
+<div class="poem"><div class="stanza">
+<span class="i0">"That monster, custom, who all sense doth eat,<br /></span>
+<span class="i0">Of habit's devil, is angel yet in this:<br /></span>
+<span class="i0">That to the use of actions fair and good<br /></span>
+<span class="i0">He likewise gives a frock or livery<br /></span>
+<span class="i0">That aptly is put on."<br /></span>
+</div></div>
+
+<p>There is no class of men among whom moral
+delinquency is more marked and disgraceful
+than among lawyers. Among merchants, so<span class='pagenum'><a name="Page_114" id="Page_114">[Pg 114]</a></span>
+many honest men become involved through
+misfortune, that the rogue may hope to take
+shelter in the crowd, and be screened from
+observation. Not so the lawyer. If he continues
+to seek business, he must find his employment
+in lower and still lower grades; and
+will soon come to verify and illustrate the
+remark of Lord Bolingbroke, that "the profession
+of the law, in its nature the noblest and
+most beneficial to mankind, is in its abuse and
+abasement, the most sordid and pernicious."</p>
+
+<p>While such are the depths to which a lawyer
+may sink, look, on the other hand, at the
+noble eminence of honor, usefulness, and virtue,
+to which he may rise. Where is the profession,
+which, in this world, holds out brighter
+rewards? Genius, indeed, will leave its mark
+in whatever sphere it may move. But learning,
+industry, and integrity, stand nowhere
+on safer or higher ground, than in the walks
+of the law. In all free countries, it is the
+avenue not only to wealth, but to political
+influence and distinction. In England, a large
+proportion of the house of peers, owe their<span class='pagenum'><a name="Page_115" id="Page_115">[Pg 115]</a></span>
+seats and dignities, as well as their possessions,
+either to their own professional success, or to
+that of some one of their ancestors.<a name="FNanchor_55_55" id="FNanchor_55_55"></a><a href="#Footnote_55_55" class="fnanchor">[55]</a> In this
+country, all our Presidents but three, have
+been educated to the Bar. Of the men who
+have distinguished themselves in the cabinet,
+in the halls of legislation, and in foreign diplomacy,
+how large is the proportion of lawyers!
+How powerful has always been the profession
+in guiding the popular mind, in forming that
+greatest of all counterchecks to bad laws and
+bad administration,&mdash;public opinion! It is
+the school of eloquence&mdash;that, which more
+than all else besides, has swayed, still sways,
+and always will sway, the destinies of free
+peoples. Let a man, to the possession of this
+noble faculty, add the high character of purity
+and justice, integrity and honor, and where
+are to be found the limits of his moral power
+over his fellow-citizens?<a name="FNanchor_56_56" id="FNanchor_56_56"></a><a href="#Footnote_56_56" class="fnanchor">[56]</a> It is well to read<span class='pagenum'><a name="Page_116" id="Page_116">[Pg 116]</a></span>
+carefully and frequently, the biographies of
+eminent lawyers. It is good to rise from the
+perusal of the studies and labors, the trials and
+conflicts, the difficulties and triumphs, of such
+men, in the actual battle of life, with the secret
+feeling of dissatisfaction with ourselves. Such
+a sadness in the bosom of a young student, is
+like the tears of Thucydides, when he heard
+Herodotus read his history at the Olympic
+Games, and receive the plaudits of assembled
+Greece. It is the natural prelude to severer
+self-denial, to more assiduous study, to more
+self-sustaining confidence. Some one has
+recommended that Middleton's Life of Cicero
+should be perused, at frequent intervals, as the
+vivid picture of a truly great mind, in the
+midst of the most stirring scenes, ever intent
+upon its own cultivation and advancement, as
+its only true glory; and that in effect sketched
+by his own master hand.<a name="FNanchor_57_57" id="FNanchor_57_57"></a><a href="#Footnote_57_57" class="fnanchor">[57]</a> The autobiography<span class='pagenum'><a name="Page_117" id="Page_117">[Pg 117]</a></span>
+of Edward Gibbon will rouse an ambitious
+student like the sound of a trumpet. But of
+English biographies, there is no one, it occurs
+to me, better adapted to the purpose mentioned,
+than the Life of Sir William Jones, by
+Lord Teignmouth. It exhibits the wonders,
+which unremitted study, upheld by the pure
+and noble ambition of doing good, can accomplish
+in the space of a short life. He was a
+man of the most varied knowledge. An extensive
+and indeed extraordinary acquaintance
+with ancient and modern languages, was perhaps
+his chief accomplishment. Although he
+engaged very late in life in the study of the
+law, such was his industry and success, that he
+soon occupied the highest judicial station, in
+British India; and the profession are indebted<span class='pagenum'><a name="Page_118" id="Page_118">[Pg 118]</a></span>
+to his pen, for one of the most beautiful of the
+elementary treatises, which adorn the lawyer's
+library. "In his early days," says his biographer,
+"he seems to have entered upon his
+career of study, with this maxim strongly impressed
+upon his mind, that whatever had been
+attained, was attainable by him; and it has
+been remarked, that he never neglected nor
+overlooked any opportunity of improving his
+intellectual faculties, or of acquiring esteemed
+accomplishments." Notwithstanding his numerous
+occupations at the Bar at home, the onerous
+duties of his station in India, and his
+premature death, before he had attained his
+forty-eighth year, he has left behind many
+learned works, which illustrate Oriental languages
+and history, and attest the extent of
+his labors and acquisitions. Indeed, it might
+be regarded as impossible, were we not informed
+of the regular allotment which he made
+of his time to particular occupations, and his
+scrupulous adherence to the distribution he
+had thus made. The moral character of this
+eminent man, was no less exemplary. It is<span class='pagenum'><a name="Page_119" id="Page_119">[Pg 119]</a></span>
+the testimony of one of his contemporaries:
+"He had more virtues and less faults, than I
+ever yet knew in any human being; and the
+goodness of his head, admirable as it was, was
+exceeded by that of his heart." His own measure
+of true greatness, humanly speaking, he
+has left behind him, in very emphatic words:
+"If I am asked, who is the greatest man? I
+answer, the best. And if I am required to
+say, who is the best? I reply, he that has
+deserved most of his fellow-creatures."<a name="FNanchor_58_58" id="FNanchor_58_58"></a><a href="#Footnote_58_58" class="fnanchor">[58]</a></p>
+
+<p>This department of English literature has<span class='pagenum'><a name="Page_120" id="Page_120">[Pg 120]</a></span>
+been recently much enriched by the labors of
+the present Lord High Chancellor of England,
+Lord Campbell. In America we have a few
+well written and instructive legal biographies,
+among which ought especially to be named,
+Mr. Wheaton's Life of William Pinkney, and
+Professor Parsons' interesting Memoir of his
+distinguished father, Chief Justice Parsons.
+Mr. Binney, at the close of his honored and
+honorable life, is paying the debt, which every
+man owes to his profession, in animated spirit-stirring
+sketches of his great and good contemporaries.
+How forcibly does this distinguished
+jurist illustrate the remark of Cicero
+in his Treatise on Old Age: "Sed videtis,
+ut senectus non modo languida atque iners
+non sit, verum etiam sit operosa, et semper
+agens aliquid et moliens; tale scilicet, quod cujusque
+studium in superiore vita fuit." What a
+noble example might be held up, in the life<span class='pagenum'><a name="Page_121" id="Page_121">[Pg 121]</a></span>
+and character of Chief Justice Marshall! His
+biography, while it will be the record of active
+patriotism and humanity, will exhibit a course
+of arduous self-training, for the great conflicts
+of opinion, in which it was his lot afterwards
+to appear, with so much lustre. He had not
+the usual advantages of a collegiate education.
+The war of the Revolution, in which his ardent
+love of country, and of the principles of rational
+liberty, led him to enlist, and where he
+distinguished himself in the field, materially
+interfered with, and retarded his earlier professional
+studies; yet, the lofty eminence to
+which he attained in the opinion of his compatriots,
+even of those who could not concur
+in some of his views of the Constitution, the
+enduring monuments of his greatness in the
+decisions of the Supreme Court of the United
+States, bespeak an intellect of the very first
+order, mental power naturally vigorous, but
+brought, by proper exercise, to a degree of
+strength that made it tower above the general
+level of educated men. His opinions do not
+abound in displays of learning. His simplicity,<span class='pagenum'><a name="Page_122" id="Page_122">[Pg 122]</a></span>
+a character so conspicuous in all his writings
+and actions&mdash;that first and highest characteristic
+of true greatness&mdash;led him to say and do
+just what was necessary and proper to the purpose
+in hand. Its reflected consequences on
+his own fame as a scholar, a statesman, or a
+jurist, seem never once to have occurred to him.
+As a judge, the Old World may be fairly challenged
+to produce his superior. His style is a
+model&mdash;simple and masculine. His reasoning&mdash;direct,
+cogent, demonstrative, advancing
+with a giant's pace and power, and yet withal
+so easy evidently to him, as to show clearly, a
+mind in the constant habit of such strong
+efforts. Though he filled for so many years
+the highest judicial position in this country,
+how much was his walk like the quiet and
+unobtrusive step of a private citizen, conscious
+of heavy responsibilities, and anxious to fulfil
+them; but unaware that the eyes of a nation&mdash;of
+many nations&mdash;were upon him! There
+was around him none of the glare, which dazzles;
+but he was clothed in that pure mellow
+light of declining evening, upon which we love<span class='pagenum'><a name="Page_123" id="Page_123">[Pg 123]</a></span>
+to look. Where is the trust to society more
+sacred, where are duties more important, or
+consequences more extended, for individual or
+social weal or woe, than those which attach to
+the office he held? How apt, and aptly said,
+is that prayer of Wolsey, when he is informed
+of the promotion of Sir Thomas More to the
+place of Lord Chancellor:</p>
+
+<div class="poem"><div class="stanza">
+<span class="i6">"May he ... do justice,<br /></span>
+<span class="i0">For truth's sake and his conscience; that his bones,<br /></span>
+<span class="i0">When he has run his course, and sleeps in blessings,<br /></span>
+<span class="i0">May have a tomb of orphans' tears wept on him."<br /></span>
+</div></div>
+
+<p>It is surely a just subject of national, as well
+as professional pride, that an American lawyer
+can thus, pointing to the example of such a
+man as <span class="smcap">John Marshall</span>, hold up his character,
+his reputation, his usefulness, his greatness, as
+incentives to high and honorable ambition; and
+especially, his life of unblemished virtue, and
+single-hearted purity,&mdash;after all, his highest
+praise, for, as old Shirley says,</p>
+
+<div class="poem"><div class="stanza">
+<span class="i0">"When our souls shall leave this dwelling,<br /></span>
+<span class="i0">The glory of one fair and virtuous action<br /></span>
+<span class="i0">Is above all the scutcheons on our tomb."<br /></span>
+<span class='pagenum'><a name="Page_124" id="Page_124">[Pg 124]</a></span></div></div>
+
+<p>Is it possible that a being so fearfully and
+wonderfully made as man, and animated by a
+spirit still more fearful and incomprehensible,
+was created for the brief term of a few revolutions
+of the planet he lives on? Shall his own
+physical and intellectual productions so long
+survive him? The massive piles of Egypt have
+endured for thousands of years: fluted column
+and sculptured architrave have stood for generations,
+monuments of his labor and skill. A
+poem of Homer, an oration of Demosthenes,
+an ode of Horace, a letter of Cicero, carry
+down to the remotest posterity the memorial
+of their names. Men found empires, establish
+constitutions, promulgate codes of laws; there
+have been Solons, Alexanders, Justinians, and
+Napoleons. There have been those justly called
+Fathers of their country, and benefactors of
+their race. Have they, too, sunk to become
+clods of the valley? The mind, which can
+look so far before and after&mdash;can subdue to its
+mastery the savages of the forests, and the
+fiercer elements of Nature&mdash;can stamp the
+creation of its genius upon the living canvas,<span class='pagenum'><a name="Page_125" id="Page_125">[Pg 125]</a></span>
+or the almost breathing, speaking marble&mdash;can
+marshal the invisible vibrations of air into
+soul-stirring or soul-subduing music&mdash;can pour
+forth an eloquence of words, with magic power
+to lash the passions of many hearts into a
+raging whirlwind, or command them with a
+"peace, be still"&mdash;can make a book, a little
+book, which shall outlive pyramids and temples,
+cities and empires&mdash;can perceive and love
+beauty, in all its forms, and above all, moral
+beauty, and God, the infinite perfection of moral
+beauty,&mdash;no, this mind can never die. Its
+moral progress must go on in an unending existence,
+of which its life of fourscore years on
+earth is scarce the childhood. Let us beware
+then of raising these objects of ambition,
+wealth, learning, honor, and influence, worthy
+though they be, into an undue importance;
+nor in the too ardent pursuit of what are only
+means, lose sight of the great end of our
+being.</p>
+
+
+
+<hr style="width: 65%;" /><p><span class='pagenum'><a name="Page_127" id="Page_127">[Pg 127]</a></span></p>
+<h2><a name="APPENDIX" id="APPENDIX"></a>APPENDIX.</h2>
+
+
+
+<hr style="width: 15%;" />
+<h2><a name="No_I" id="No_I"></a>No. I.</h2>
+
+<h3>COURVOISIER'S CASE<a name="FNanchor_59_59" id="FNanchor_59_59"></a><a href="#Footnote_59_59" class="fnanchor">[59]</a></h3>
+
+
+<p>On Tuesday night, May 5th, 1840, Lord William Russell,
+infirm, deaf, and aged, being in his seventy-third year,
+was murdered in his bed. He was a widower, living at
+No. 14 Norfolk Street, Park Lane, London, a small house,
+occupied by only himself and three servants,&mdash;Courvoisier,
+a young Swiss valet, and two women, a cook and house-maid.
+The evidence was of a character to show very
+clearly that the crime had been committed by some one in
+the house; but, Courvoisier's behavior throughout had
+been that of an innocent man. Two examinations of his
+trunk, by the officers of the police, showed nothing suspicious;
+rewards having been offered by the government and
+family of the deceased; for the detection of the criminal, a
+third examination was made of Courvoisier's box, which<span class='pagenum'><a name="Page_128" id="Page_128">[Pg 128]</a></span>
+resulted in the discovery of a pair of white cotton gloves,
+two pocket handkerchiefs, and a shirt-front, stained with
+blood. The prisoner's counsel went to the trial with a full
+persuasion of his innocence, and conducted the cross-examination
+closely and zealously, especially of Sarah Mancer,
+one of the female domestics, with a view of showing that
+there was as much probability that the witness or the other
+domestic was the criminal as the prisoner; and that the
+police, incited by the hopes of the large rewards offered,
+had conspired to fasten the suspicion unjustly on him. At
+the close of the first day's proceedings, the prosecutors were
+placed unexpectedly in possession of a new and important
+item of evidence: the discovery of the plate of the deceased,
+which was missed, and that it had been left by the prisoner,
+at the place where it was found, about a week, perhaps only
+a very few days, before the committing of the murder. The
+parcel contained silver spoons, forks, a pair of gold auricles,
+all unquestionably the property of the unfortunate nobleman;
+and the only question remaining was, whether Courvoisier
+was the person who had so left it. If he were, it
+would, of course, grievously for him, increase the <i>probabilities</i>
+that it must have been he who subsequently committed
+the murder, and with the object of plunder. On the
+ensuing morning, the person who had made this discovery
+(Mrs. Piolaine, the wife of a Frenchman, who kept a place
+of entertainment, called L'Hotel de Dieppe, in Leicester
+Place, Leicester Square), was shown a number of prisoners
+in the prison-yard, one of whom was Courvoisier, whom<span class='pagenum'><a name="Page_129" id="Page_129">[Pg 129]</a></span>
+she instantly recognized as the person who had left the
+plate with her, and also had formerly lived in her employ.
+Courvoisier also suddenly recognized her, and with dismay.
+The immediate effect of his panic was the confession of his
+guilt to his counsel at the bar of the court, a few minutes
+afterwards, coupled with his desire, nevertheless, to be defended
+to the utmost. His probable object was simply to
+prepare his counsel against the forthcoming evidence. The
+prisoner was convicted, and afterwards confessed his crime.
+Mr. Phillips's conduct of the defence was criticized at the
+time, in the columns of the Examiner, but he suffered it to
+pass in silence. In 1849, that periodical renewed the accusation
+originally made, upon which the following correspondence
+appeared in the London Times of Nov. 20th,
+1849.</p>
+
+
+<p class="moretop"><span class="smcap">TO THE EDITOR OF THE "TIMES."</span></p>
+
+<p><span class="smcap">Sir</span>,&mdash;I shall esteem it a great favor if you will allow the
+accompanying documents to appear in the "Times." Its
+universal circulation affords me an opportunity of annihilating
+a calumny recently revived, which has for nine years
+harassed my friends far more than myself.</p>
+
+<p class="signing">I am, &amp;c.,<br />
+<span class="smcap">Charles Phillips</span>.</p>
+<p><small>39 Gordon Square.</small></p>
+<p><span class='pagenum'><a name="Page_130" id="Page_130">[Pg 130]</a></span></p>
+
+
+<p class="letter1"><small><span class="smcap">Inner Temple</span>, Nov. 14, 1849.</small></p>
+
+<p><span class="smcap">My dear Phillips</span>,&mdash;It was with pain that I heard
+yesterday of an accusation having been revived against you
+in the "Examiner" newspaper, respecting alleged dishonorable
+and most unconscientious conduct on your part, when
+defending Courvoisier against the charge of having murdered
+Lord William Russell. Considering that you fill a
+responsible judicial office, and have to leave behind you a
+name unsullied by any blot or stain, I think you ought to
+lose no time in offering, as I believe you can truly do, a
+public and peremptory contradiction to the allegations in
+question. The mere circumstances of your having been
+twice promoted to judicial office by two lord chancellors,
+Lord Lyndhurst and Lord Brougham, since the circulation
+of the reports to which I am alluding, and after those reports
+had been called to the attention of at least one of
+those noble and learned lords, is sufficient evidence of the
+groundlessness of such reports.</p>
+
+<p>Some time ago I was dining with Lord Denman, when I
+mentioned to him the report in question. His lordship
+immediately stated that he had inquired into the matter,
+and found the charge to be utterly unfounded; that he had
+spoken on the subject to Mr. Baron Parke, who had sat on
+the Bench beside Chief Justice Tindal, who tried Courvoisier,
+and that Baron Parke told him he had, for reasons of
+his own, most carefully watched every word that you uttered,
+and assured Lord Denman that your address was<span class='pagenum'><a name="Page_131" id="Page_131">[Pg 131]</a></span>
+perfectly unexceptionable, and that you made no such
+statements as were subsequently attributed to you.</p>
+
+<p>Lord Denman told me that I was at liberty to mention
+this fact to any one; and expressed in noble and generous
+terms his concern at the existence of such serious and unfounded
+imputations upon your character and honor.</p>
+
+<p>Both Lord Denman and Baron Parke are men of as nice
+a sense of honor and as high a degree of consciousness as
+it is possible to conceive; and I think the testimony of two
+such distinguished judges ought to be publicly known, to
+extinguish every kind of suspicion on the subject.</p>
+
+<p>I write this letter to you spontaneously, and, hoping that
+you will forgive the earnestness with which I entreat you
+to act upon my suggestion, believe me ever yours sincerely,</p>
+
+<p class="author"><span class="smcap">Samuel Warren</span>.</p>
+<p><small><span class="smcap">Mr. Commissioner Phillips</span>.</small></p>
+
+
+
+<p class="letter1"><small>39 <span class="smcap">Gordon Square</span>, Nov. 20.</small></p>
+
+<p><span class="smcap">My dear Warren</span>,&mdash;Your truly kind letter induces
+me to break the contemptuous silence, with which for nine
+years I have treated the calumnies, to which you allude.
+I am the more induced to this by the representations of
+some valued friends, that many honorable minds begin to
+believe the slander because of its repetition without receiving
+a contradiction. It is with disgust and disdain,
+however, that even thus solicited I stoop to notice inventions
+too abominable, I had hoped, for any honest man to
+have believed. The conduct of Lord Denman is in every<span class='pagenum'><a name="Page_132" id="Page_132">[Pg 132]</a></span>
+respect characteristic of his noble nature. Too just to
+condemn without proof, he investigates the facts, and defends
+the innocent. His deliberate opinion is valuable
+indeed, because proceeding from one who is invaluable
+himself. My judicial appointments by the noblemen you
+mention would have entailed on them a fearful responsibility,
+had there been any truth in the accusations of which
+they must have been cognizant. I had no interest whatever
+with either of these chancellors, save that derived from
+their knowledge of my character, and their observation of
+my conduct. It is now five-and-twenty years ago since
+Lord Lyndhurst, when I had no friend here, voluntarily
+tendered me his favor and his influence, and his kindness
+to me remains to this day unabated. Of Lord Brougham,
+my ever warm and devoted friend, I forbear to speak, because
+words cannot express my affection or my gratitude.
+His friendship has soothed some affliction and enhanced
+every pleasure, and while memory lasts will remain the
+proudest of its recollections and the most precious of its
+treasures. This is no vain-glorious vaunting. The unabated
+kindness of three of the greatest men, who ever
+adorned the Bench, ought, in itself, to be a sufficient answer
+to my traducers. Such men as these would scarcely have
+given their countenance to one, who, if what were said of
+him were true, deserved their condemnation. I am not
+disposed, however, though I might be well warranted in
+doing so, to shelter myself under the authority of names, no
+matter how illustrious. I give to each and all of these charges<span class='pagenum'><a name="Page_133" id="Page_133">[Pg 133]</a></span>
+a solemn and indignant contradiction, and I will now proceed
+to their refutation. The charges are threefold, and I
+shall discuss them <i>seriatim</i>.</p>
+
+<p>First, I am accused of having retained Courvoisier's
+brief after having heard his confession. It is right that I
+should relate the manner of that confession, as it has been
+somewhat misapprehended. Many suppose it was made to
+me alone, and made in the prison. I never was in the
+prison since I was called to the Bar, and but once before,
+being invited to see it by the then sheriffs. So strict is
+this rule, that the late Mr. Fauntleroy solicited a consultation
+there in vain with his other counsel and myself. It
+was on the second morning of the trial, just before the
+judges entered, that Courvoisier, standing publicly in front
+of the dock, solicited an interview with his counsel. My
+excellent friend and colleague, Mr. Clarkson, and myself
+immediately approached him. I beg of you to mark the
+presence of Mr. Clarkson, as it will become very material
+presently. Up to this morning I believed most firmly in
+his innocence, and so did many others as well as myself.
+"I have sent for you, gentlemen," said he, "to tell you
+I committed the murder!" When I could speak, which
+was not immediately, I said, "Of course then you are going
+to plead guilty?"&mdash;"No, sir," was the reply, "I expect
+you to defend me to the utmost." We returned to our
+seats. My position at this moment was, I believe, without
+parallel in the annals of the profession. I at once came to
+the resolution of abandoning the case, and so I told my<span class='pagenum'><a name="Page_134" id="Page_134">[Pg 134]</a></span>
+colleague. He strongly and urgently remonstrated against
+it, but in vain. At last he suggested our obtaining the
+opinion of the learned judge, who was not trying the cause,
+upon what he considered to be the professional etiquette
+under circumstances so embarrassing. In this I very willingly
+acquiesced. We obtained an interview, and Mr.
+Baron Parke requested to know distinctly whether the
+prisoner insisted on my defending him, and, on hearing
+that he did, said, I was bound to do so, and to use all fair
+arguments arising on the evidence. I therefore retained
+the brief, and I contend for it, that every argument I used
+was a fair commentary on the evidence, though undoubtedly
+as strong as I could make them. I believe there is no difference
+of opinion now in the profession that this course
+was right. It was not until after eight hours' public exertion
+before the jury that the prisoner confessed; and to
+have abandoned him then would have been virtually surrendering
+him to death. This is my answer to the first
+charge.</p>
+
+<p>I am accused, secondly, of having "appealed to Heaven
+as to my belief in Courvoisier's innocence," after he had
+made me acquainted with his guilt. A grievous accusation!
+But it is false as it is foul, and carries its own refutation
+on its face. It is with difficulty I restrain the expression
+of my indignation; but respect for my station forbids me
+to characterize this slander as it deserves. It will not
+bear one moment's analysis. It is an utter impossibility
+under the circumstances. What! appeal to Heaven for its<span class='pagenum'><a name="Page_135" id="Page_135">[Pg 135]</a></span>
+testimony to a lie, and not expect to be answered by its
+lightning? What! make such an appeal, conscious that
+an honorable colleague sat beside me, whose valued friendship
+I must have forever forfeited? But above all and
+beyond all, and too monstrous for belief, would I have dared
+to utter that falsehood in the very presence of the judge to
+whom, but the day before, I had confided the reality!
+There, upon the Bench above me, sat that time-honored
+man&mdash;that upright magistrate, pure as his ermine, "narrowly
+watching" every word I said. Had I dared to make
+an appeal so horrible and so impious&mdash;had I dared so to
+outrage his nature and my own conscience, he would have
+started from his seat and withered me with a glance. No,
+Warren, I never made such an appeal; it is a malignant
+untruth, and sure I am, had the person who coined it but
+known what had previously occurred, he never would have
+uttered from his libel mint so very clumsy and self-proclaiming
+a counterfeit. So far for the verisimilitude of
+this-charge. But I will not rest either on improbability, or
+argument, or even denial. I have a better and a conclusive
+answer. The trial terminated on Saturday evening. On
+Sunday I was shown in a newspaper the passage imputed
+to me. I took the paper to court on Monday, and, in the
+aldermen's room, before all assembled, after reading the
+paragraph aloud, I thus addressed the judges:&mdash;"I take
+the very first opportunity which offers, my lords, of most
+respectfully inquiring of you whether I ever used any such
+expression?"&mdash;"You certainly did not, Phillips," was the<span class='pagenum'><a name="Page_136" id="Page_136">[Pg 136]</a></span>
+reply of the late lamented Lord Chief Justice, "and I will
+be your vouchee whenever you choose to call me,"&mdash;"And
+I," said Mr. Baron Parke, happily still spared to us, "had
+a reason, which the Lord Chief Justice did not know, for
+watching you narrowly, and he will remember my saying
+to him, when you sat down, 'Brother Tindal, did you observe
+how carefully Phillips abstained from giving any
+personal opinion in the case?' To this the learned Chief
+Justice instantly assented." This is my answer to the
+second charge.</p>
+
+<p>Thirdly, and lastly, I am accused of having endeavored
+to cast upon the female servants the guilt, which I knew
+was attributable to Courvoisier. You will observe, of course,
+that the gravamen of this consists in my having done so
+after the confession. The answer to this is obvious. Courvoisier
+did not confess till Friday: the cross-examination
+took place the day before, and so far, therefore, the accusation
+is disposed of. But it may be said I did so in my address
+to the jury. Before refuting this let me observe upon
+the disheartening circumstances under which that address
+was delivered. At the close of the, to me, most wretched
+day on which the confession was made, the prisoner sent
+me this astounding message by his solicitor: "Tell Mr.
+Phillips, my counsel, that I consider he has my life in his
+hands." My answer was, that as he must be present himself,
+he would have an opportunity of seeing whether I
+deserted him or not. I was to speak on the next morning.
+But what a night preceded it! Fevered and horror-stricken,<span class='pagenum'><a name="Page_137" id="Page_137">[Pg 137]</a></span>
+I could find no repose. If I slumbered for a moment, the
+murderer's form arose before me, scaring sleep away, now
+muttering his awful crime, and now shrieking to me to save
+his life! I did try to save it. I did everything to save it,
+except that which is imputed to me, but that I did not, and
+I will prove it. I have since pondered much upon this
+subject, and I am satisfied that my original impression was
+erroneous. I had no right to throw up my brief, and turn
+traitor to the wretch, wretch though he was, who had confided
+in me. The counsel for a prisoner has no option.
+The moment he accepts his brief, every faculty he possesses
+becomes his client's property. It is an implied contract
+between him and the man who trusts him. Out of the
+profession this may be a moot point, but it was asserted
+and acted on by two illustrious advocates of our own day,
+even to the confronting of a king, and, to the regal honor
+be it spoken, these dauntless men were afterwards promoted
+to the highest dignities.</p>
+
+<p>You will ask me here whether I contend on this principle
+for the right of doing that of which I am accused, namely,
+casting the guilt upon the innocent? I do no such thing;
+and I deny the imputation altogether. You will still bear
+in mind what I have said before, that I scarcely could have
+dared to do so under the eye of Baron Parke and in the
+presence of Mr. Clarkson. To act so, I must have been
+insane. But to set this matter at rest, I have referred to
+my address as reported in the "Times"&mdash;a journal the
+fidelity of whose reports was never questioned. You will<span class='pagenum'><a name="Page_138" id="Page_138">[Pg 138]</a></span>
+be amazed to hear that I not only did not do that of which
+I am accused; but that I did the very reverse. Fearing
+that, nervous and unstrung as I was, I might do any injustice
+in the course of a lengthened speech, by even an ambiguous
+expression, I find these words reported in the
+"Times,"&mdash;"Mr. Phillips said the prosecutors were bound
+to prove the guilt of the prisoner, not by inference, by
+reasoning, by such subtile and refined ingenuity as had been
+used, but by downright, clear, open, palpable demonstration.
+How did they seek to do this? What said Mr.
+Adolphus and his witness, Sarah Mancer? And here he
+would beg the jury not to suppose for a moment, in the
+course of the narrative with which he must trouble them,
+that he meant to cast the crime upon either of the female
+servants. It was not at all necessary to his case to do so.
+It was neither his interest, his duty, nor his policy, to do so.
+God forbid that any breath of his should send tainted into
+the world persons depending for their subsistence on their
+character." Surely this ought to be sufficient. I cannot
+allude, however, to this giant of the press, whose might
+can make or unmake a reputation, without gratefully acknowledging
+that it never lent its great circulation to these
+libels. It had too much justice. The "Morning Chronicle,"
+the "Morning Herald," and the "Morning Post,"
+the only journals to which I have access, fully corroborated
+the "Times," if, indeed, such a journal needed corroboration.
+The "Chronicle" runs thus:&mdash;"In the first place,
+says my friend Mr. Adolphus, and says his witness Sarah<span class='pagenum'><a name="Page_139" id="Page_139">[Pg 139]</a></span>
+Mancer&mdash;and here I beg to do an act of justice, and to assure
+you that I do not for a moment mean to suggest in the
+whole course of my narrative that this crime may have been
+committed by the female servants of the deceased nobleman."
+"The Morning Post" runs thus: "Mr. Adolphus
+called a witness, Sarah Mancer. But let me do myself
+justice, and others justice, by now stating, that in the whole
+course of my narrative with which I must trouble you, I
+beg you would not suppose that I am in the least degree
+seeking to cast the crime upon any of the witnesses. God
+forbid that any breath of mine should send persons depending
+on the public for subsistence into the world with a
+tainted character." I find the "Morning Herald" reporting
+me as follows: "Mr. Adolphus called a witness named
+Sarah Mancer. But let me do myself justice and others
+justice by now stating that in the whole course of the narrative
+with which I must trouble you, I must beg that you
+will not suppose that I am in the least degree seeking to
+cast blame upon any of the witnesses." Can any disclaimer
+be more complete? And yet, in the face of this,
+for nine successive years has this most unscrupulous of
+slanderers reiterated his charge. Not quite three weeks
+ago he recurs to it in these terms: "How much worse was
+the attempt of Mr. Phillips to throw the suspicion of the
+murder of Lord William Russell on the innocent female
+servants, in order to procure the acquittal of his client
+Courvoisier, of whose guilt he was cognizant?" I have
+read with care the whole report in the "Times" of that<span class='pagenum'><a name="Page_140" id="Page_140">[Pg 140]</a></span>
+three hours' speech, and I do not find a passage to give this
+charge countenance. But surely, surely, in the agitated
+state in which I was, had even an ambiguous expression
+dropped from me, the above broad disclaimer would have
+been its efficient antidote.</p>
+
+<p>Such is my answer to the last charge; and, come what
+will, it shall be my final answer. No envenomed reiteration,
+no popular delusion, no importunity of friendship,
+shall ever draw from me another syllable. I shall remain
+in future, as I have been heretofore, <i>auditor tantum</i>. You
+know well how strenuously and how repeatedly you pressed
+me to my vindication, especially after Lord Denman's important
+conversation with you, and you know the stern disdain
+with which I dissented. The <i>mens conscia recti</i>, a
+thorough contempt for my traducer, the belief that truth
+would in the end prevail, and a self-humiliation at stooping
+to a defence, amply sustained me amid the almost national
+outcry which calumny had created. Relying doubtless
+upon this, month after month, for nine successive years,
+my accuser has iterated and reiterated his libels in terms
+so gross, so vulgar, and so disgraceful, that my most valued
+friends thought it my duty to them publicly to refute them.
+To that consideration, and to that alone, I have yielded; in
+deference to theirs, relinquishing my own opinions. If
+they suppose, however, that slander, because answered, will
+be silenced, they will find themselves mistaken.</p>
+
+<div class="poem"><div class="stanza">
+<span class="i0">Destroy the web of sophistry&mdash;in vain&mdash;<br /></span>
+<span class="i0">The creature's at his dirty work again.<br /></span>
+<span class='pagenum'><a name="Page_141" id="Page_141">[Pg 141]</a></span></div></div>
+
+<p>No, no, my dear friend, invention is a libeller's exhaustless
+capital, and refutation but supplies the food on which
+he lives. He may, however, pursue his vocation undisturbed
+by me. His libels and my answer are now before
+the world, and I leave them to the judgment of all honorable
+men.</p>
+
+<p class="author"><span class="smcap">C. Phillips.</span></p>
+
+
+
+<hr style="width: 15%;" />
+<h2><a name="No_II" id="No_II"></a>No. II.</h2>
+
+<h3>COURSE OF LEGAL STUDY<a name="FNanchor_60_60" id="FNanchor_60_60"></a><a href="#Footnote_60_60" class="fnanchor">[60]</a></h3>
+
+<p><i>Non multa sed multum</i>, is the cardinal maxim by which
+the student of law should be governed in his readings; at
+the commencement of his studies&mdash;in the office of his
+legal preceptor, <span class="smcap">Repetition</span>&mdash;<span class="smcap">Repetition</span>&mdash;<span class="smcap">Repetition</span>.
+Blackstone and Kent, should be read&mdash;and read again and
+again. These elementary works, with some others of an
+immediately practical cast&mdash;Tidd's Practice, Stephen's
+Pleading, Greenleaf's Evidence, Leigh's Nisi Prius, Mitford's
+Equity Pleading&mdash;well conned, make up the best part
+of office reading. Of course the Acts of Assembly should
+be gone over and over again. I do not say that this is all.
+The plan of reading, which I am about to recommend,<span class='pagenum'><a name="Page_142" id="Page_142">[Pg 142]</a></span>
+may be begun in the office. Much will depend upon, what
+may be termed, the mental temperament of the student
+himself, which no one but the immediate preceptor can
+observe; and he will be governed accordingly in the selection
+of works to be placed in his hands. No lawyer does
+his duty, who does not frequently examine his student, not
+merely as a necessary means of exciting him to attention,
+and application; but in order to acquire such an acquaintance
+with the character of his pupil's mind&mdash;its quickness
+or slowness&mdash;its concentrativeness or discursiveness&mdash;as to
+be able to form a judgment whether he requires the curb
+or the spur. It is an inestimable advantage to a young
+man to have a judicious and experienced friend watching
+anxiously his progress, and able to direct him, when, if left
+to himself, he must wander in darkness and danger.
+"There be two things," says Lord Coke, "to be avoided
+by him as enemies to learning, <i>pr&aelig;postera lectio</i> and <i>pr&aelig;propera
+praxis</i>." Co. Litt. 70 b.</p>
+
+<p>I prefer presenting a certain order of subjects to be pursued;
+observing, however, that it may be somewhat irksome
+to pursue any one branch for too long a period unvaried.
+When that is found to be the case, the last five
+heads may be adopted as collateral studies, and pursued
+simultaneously with the first three.</p>
+
+<p>These heads or branches are&mdash;1. Real Estate and Equity.
+2. Practice, Pleading, and Evidence. 3. Crime and Forfeitures.
+4. Natural and International law. 5. Constitutional
+Law. 6. Civil Law. 7. Persons and Personal
+Property. 8. The Law of Executors and Administrators.<span class='pagenum'><a name="Page_143" id="Page_143">[Pg 143]</a></span></p>
+
+
+<h4>I. <span class="smcap">Real Estate and Equity.</span></h4>
+
+<p>As introductory to this head, Lord Hale's History of the
+Common Law may be perused with advantage. It was
+perhaps a mere sketch, intended to be afterwards filled up
+and completed. Still, however, it is a work of authority,
+as indeed is everything which proceeded from the pen of
+its distinguished author. He is correct and accurate to a
+remarkable degree. Reeves' History of the English Law
+is a full and comprehensive history of the English Law,
+accurate and judicious as well as full. Lord Mansfield is
+said to have advised its author in regard to its plan and
+execution. In this work the student is presented with all
+that is necessary that he should know of the earliest law-books,
+Bracton, Glanville, and Fleta, carefully collected and
+presented. The history of the law is separately traced
+under the reign of each king, and it may be of advantage
+to read at the same time some good history or histories of
+England parallel with the work. "Reeves' History of the
+English Law," says Chancellor Kent, "contains the best
+account that we have of the progress of the law, from the
+time of the Saxons to the reign of Elizabeth. It covers
+the whole ground of the law included in the old abridgments,
+and it is a work deserving of the highest commendation.
+I am at a loss which most to admire, the full and
+accurate learning, which it contains, or the neat, perspicuous,
+and sometimes elegant style, in which that learning is
+conveyed." 1 Comm. 508.<span class='pagenum'><a name="Page_144" id="Page_144">[Pg 144]</a></span></p>
+
+<p>Dalrymple's Essay towards a general History of Feudal
+Property in Great Britain, is a brief but learned and philosophical
+treatise, which may be followed by Sullivan's
+Lectures on Feudal Law, a work copious in detail and
+exhibiting ably, among other topics, the influence of the
+feudal system upon the Modern Law of Tenures. Sir Martin
+Wright's Introduction to the Law of Tenures is one of
+the most accurate and profound of the essays on this topic;
+and is worthy of the most attentive study. Craig de Feudis
+was thought by Lord Mansfield much preferable to any
+judicial work which England had then produced. With
+these legal treatises on the feudal system may be read with
+great advantage, simultaneously, Robertson's History of
+Charles V, and Hallam's History of the Middle Ages.</p>
+
+<p>Sir Henry Finch's Law, or Nomotechnia, as he entitled
+it, may be taken up in this connection. It is said that
+until the publication of Blackstone's Commentaries, it was
+regarded as the best elementary book to be placed in the
+hands of law students; and we have the authority of Sir
+William Blackstone for saying that his method was greatly
+superior to that in all the treatises that were then extant:
+Blackstone's Analysis, Preface, 6. "His text," says Chancellor
+Kent, "was weighty, concise, and nervous, and his
+illustrations apposite, clear, and authentic;" though he adds,
+"But the abolition of the feudal tenures and the disuse of
+real actions, have rendered half of his work obsolete,"
+1 Comm. 509; an objection, in the view we take of legal
+education, which should rather recommend the work than
+otherwise.<span class='pagenum'><a name="Page_145" id="Page_145">[Pg 145]</a></span></p>
+
+<p>At the same time with Finch take Doctor and Student
+by St. Germain&mdash;a little book which is replete with sound
+law, and has always been cited with approbation as an
+authority.</p>
+
+<p>The Prefaces to the several volumes of Lord Coke's
+Reports may be read now with great advantage. They
+contain much interesting information, and strongly impregnated
+as they are with Lord Coke's abundant learning and
+love of the law as a science and profession, they form an
+admirable introduction to The First Institute, or Lord
+Coke's Commentary upon Littleton's Tenures. It would
+be advisable, I think, to read first in order the sections of
+Littleton's Tenures, the original treatise upon which The
+Institute was a commentary. After that, no time or pains
+should be spared to master completely The First Institute.
+If the course now prescribed has been followed, the student
+will not require to be reminded, that even those parts,
+which seem to relate to obsolete heads of the law, ought to
+be read and understood. "There is not," says Mr. Butler,
+"in the whole of this golden book, a single line which
+the student will not in his professional career, find on more
+than one occasion eminently useful." There may be some
+extravagance in this assertion; but we may nevertheless
+agree with Mr. Ritso that "there is no knowledge of this
+kind, which may not, sooner or later, be in fresh demand;
+there is no length of time or change of circumstances, that
+can entirely defeat its operation or destroy its intrinsic
+authority. Like the old specie withdrawn from circulation<span class='pagenum'><a name="Page_146" id="Page_146">[Pg 146]</a></span>
+upon the introduction of a new coinage, it has always its
+inherent value; the ore is still sterling and may be moulded
+into modern currency." The opinions of American lawyers
+confirm this conclusion. It is well known that C. J.
+Parsons was distinguished for his familiarity with the pages
+of The Institute. It was Mr. Pinkney's favorite law book;
+and "his arguments at the Bar," says his biographer, Mr.
+Wheaton, "abounded with perpetual recurrences to the
+principles and analysis drawn from this rich mine of common
+law learning." Mr. Hoffman, in his Course of Legal
+Study, has also borne his testimony to its importance to
+the American practitioner. Chancellor Kent seems, as I
+have intimated in the note, to lean rather against Coke
+upon Littleton, as an Institute of Legal Education,
+although he acknowledges its value and authority as a
+book of reference.</p>
+
+<p>It appears to me that after Coke, Preston's Elementary
+Treatise on Estates may be read with advantage. He is
+perhaps unnecessarily diffuse and tautological; but he enters
+largely into the reasons of the abstruse doctrines of
+which he treats, and his work is calculated to lead the
+student to inquire more earnestly into the philosophy of the
+science. Fearne's Essay on the Learning of Contingent
+Remainders, should then be well studied. If no other
+book be read over a second time, it must not be omitted as
+to this. This volume is occupied in the discussion of
+points of great difficulty and abstruseness; yet the style is
+remarkable for clearness and perspicuity, and the reasoning<span class='pagenum'><a name="Page_147" id="Page_147">[Pg 147]</a></span>
+is logical and irresistible. A taste or otherwise, for this
+book, will test the student's real progress. After Fearne,
+take up Sheppard's Touchstone of Common Assurances&mdash;a
+work generally supposed to have been written by Mr. Justice
+Doddridge, and not by William Sheppard, whose name
+it bears. It is a most valuable book, one of the most
+esteemed and authoritative of the old treatises. There is an
+edition by Mr. Preston, but I do not recommend it. Had
+he annotated in the common way, his labors and references
+would no doubt have increased the value of the book; but
+he has taken liberties with the text,&mdash;subdividing it, occasionally
+changing the phraseology, and inserting matter of
+his own: a course of proceeding in regard to any work,
+except a digest or dictionary, to which I cannot be reconciled.
+The Touchstone may be followed by Preston on
+Abstracts of Title, and Preston's Treatise on Conveyancing.</p>
+
+<p>I think that at this period, as a necessary introduction to
+the succeeding studies, some works on Equity Jurisprudence
+should be taken in hand; as the Treatise on Equity
+of which Henry Ballow is the reputed author. It is the
+text of Fonblanque's Equity. It had better be read by
+itself. Disquisitional notes of great length only confuse
+and confound the student; and Mr. Marvin has well said
+that Fonblanque's Equity "finally expired under the weight
+of its own notes." To this add Jeremy's Treatise on Equity,
+and Story's Commentaries on Equity Jurisprudence. The
+student may then read with advantage, Powell on Mortgages,
+with Coventry's Notes. It is to be lamented that<span class='pagenum'><a name="Page_148" id="Page_148">[Pg 148]</a></span>
+Mr. Coventry did not prepare an original work, instead of
+overwhelming the text of Powell with his learned and
+valuable labors. Chancellor Kent has remarked, that between
+the English and American editors it is "somewhat
+difficult for the reader to know, without considerable difficulty,
+upon what ground he stands." Like the treatise on
+Equity, it has been nearly choked to death in the embraces
+of its annotators. Bacon's Reading upon the Statute of
+Uses, is a very profound treatise on that subject, though
+evidently left by its great author in an unfinished state.
+Sanders on Uses and Trusts, is a very comprehensive and
+learned work, and the subject, which may be styled the
+Metaphysics of the Law, requires close attention. Hill on
+Trustees, is a practical treatise, which may here be read
+with advantage, as also Lewis on Perpetuities. Sugden on
+Powers, has been said to be second to no elementary law
+book. It is a masterly elucidation of the subtle doctrines
+of the law on the subject of Powers, and is held in the
+highest estimation. It will perhaps be better appreciated
+and understood, if with it, or after it, is taken up Chance's
+Treatise on Powers,&mdash;a work more diffuse than Mr. Sugden's,
+and which examines, controverts, and discusses at
+large many of his positions. Sugden on Vendors and
+Purchasers may then follow.</p>
+
+<p>The titles on Leases and Terms for Years, and Rent, in
+Bacon's Abridgment, should be studied. These were the
+works of Chief Baron Gilbert. After this, Woodfall on
+Landlord and Tenant.<span class='pagenum'><a name="Page_149" id="Page_149">[Pg 149]</a></span></p>
+
+<p>Roscoe's Treatise on the Law of Actions relating to
+Real Property, may be read as a convenient introduction to
+Cruise on Fines and Recoveries, and Pigott on Common
+Recoveries.</p>
+
+<p>To these, in conclusion of this, by far the most important
+and fundamental branch of legal studies, may be added,
+Powell's Essay on the Learning of Devises, and Jarman on
+Wills.</p>
+
+<p>It will be remarked, that I have not set down in order,
+any Report Books; it is not that I undervalue that kind of
+study. It appears to me that in his regular reading, the
+student should constantly resort to and examine the principal
+cases referred to and commented upon by his authors.
+In this way, he will read them more intelligently, and
+they will be better impressed on his memory. Some reports
+may be read through continuously; such are Plowden,
+Hobart, Vernon, and I certainly think, Johnson's Chancery
+Reports should be thus read. Smith's Leading Cases is an
+excellent reading-book of this kind. The student of Pennsylvania
+Law will do well not to omit Binney's Reports.
+But I assign no particular place to this kind of study, because
+I think it may be taken up and laid aside at intervals,
+according to the bent of the student's inclination. When,
+in any particular part of his course, he finds his regular
+reading drags heavily&mdash;he has become fagged and tired of
+a particular subject&mdash;let him turn aside for a week or two,
+to some approved and standard Report Book; it will be<span class='pagenum'><a name="Page_150" id="Page_150">[Pg 150]</a></span>
+useful reading, and he will be able to return refreshed to
+his proper course.</p>
+
+<p>It would extend this Appendix too much, if I were to
+go over the remaining parts of the prescribed plan, with
+the same particularity as I have this first and most important
+branch. It will be sufficient to indicate merely the
+books, and the order in which they may be most profitably
+read, under each division.</p>
+
+
+<h4>II. <span class="smcap">Practice, Pleading, and Evidence.</span></h4>
+
+<p>The Introduction to Crompton's Practice gives a full
+account of the jurisdiction of the courts, and the steps by
+which it was arrived at. This book is sometimes called
+Sellon's Practice, having been arranged by Mr. Sellon.
+The fourth part of The Institutes of Lord Coke. Tidd's
+Practice. Stephen on Pleading. Saunders' Reports, with
+Notes by Williams. Broom's Parties to Actions. Greenleaf
+on Evidence. Selwyn's Nisi Prius. Leigh's Nisi
+Prius. Mitford's Pleading in Equity. Story's Equity
+Pleading. Barton's Historical Treatise of a Suit in Equity.
+Newland's Chancery Practice. Gresley on Evidence in
+Equity.</p>
+
+
+<h4>III. <span class="smcap">Crimes and Forfeitures.</span></h4>
+
+<p>Hale's History of the Pleas of the Crown. Foster's
+Crown Law. Yorke's Considerations on the Law of Forfeiture<span class='pagenum'><a name="Page_151" id="Page_151">[Pg 151]</a></span>
+for High Treason. The third part of The Institutes
+of Lord Coke. Russell on Crimes and Misdemeanors.
+Chitty on Criminal Law.</p>
+
+
+<h4>IV. <span class="smcap">Natural and International Law.</span></h4>
+
+<p>Burlamaqui's Natural and Political Law. Grotius de
+Jure Belli et Pacis. Rutherford's Institutes. Vattel's
+Law of Nations. Bynkershoek Questiones Publici Juris.
+Wicquefort's Ambassador. Bynkershoek de Foro Legatorum.
+McIntosh's Discourse on the Study of the Law of
+Nature and Nations. Wheaton's History of International
+Law. Wheaton's International Law. Robinson's Admiralty
+Reports. Cases in the Supreme Court of the United
+States.</p>
+
+
+<h4>V. <span class="smcap">Constitutional Law.</span></h4>
+
+<p>The second part of Lord Coke's Institutes. Hallam's
+Constitutional History of England. Wynne's Eunomus.
+De Lolme on the English Constitution, with Stephens'
+Introduction and Notes. The Federalist. Rawle on the
+Constitution. Story on the Constitution. All the cases
+decided in the Supreme Court of the United States, on
+constitutional questions, to be read methodically, as far as
+possible.<span class='pagenum'><a name="Page_152" id="Page_152">[Pg 152]</a></span></p>
+
+
+<h4>VI. <span class="smcap">Civil Law.</span></h4>
+
+<p>I consider some study of this head as a necessary introduction
+to a thorough course on the subjects of Persons and
+Personal Property, and the topic, which is so important in
+the United States, of the Conflict of Laws.</p>
+
+<p>Butler's Hor&aelig; Juridic&aelig;. Gibbon's History of the Decline
+and Fall, chap. 44. Justinian's Institutes. Savigny's
+Trait&eacute; de Droit Romain. Savigny's Histoire du Droit
+Romain au Moyen Age. Taylor's Elements of the Civil
+Law. Mackeldy's Compendium. Colquhoun's Summary
+of the Roman Civil Law. Domat's Civil Law.</p>
+
+
+<h4>VII. <span class="smcap">Persons and Personal Property.</span></h4>
+
+<p>Reeves on the Domestic Relations. Bingham's Law of
+Infancy and Coverture. Roper on Husband and Wife.
+Angel and Ames on Corporations. Les &#338;uvres de Pothier.
+Smith on Contracts. Story on Bailments. Jones on Bailments.
+Story on Partnership. Byles on Bills. Story on
+Promissory Notes. Abbott on Shipping. Duer on Insurance.
+Emerigon Trait&eacute; des Assurances. Boulay-Paty
+Cour de Droit Commercial. Story on the Conflict of Laws.</p>
+
+
+<h4>VIII. <span class="smcap">Executors and Administrators.</span></h4>
+
+<p>Roper on Legacies. Toller on Executors. Williams on
+Executors. The Law's Disposal, by Lovelass.<span class='pagenum'><a name="Page_153" id="Page_153">[Pg 153]</a></span></p>
+
+<p>I believe that the course that I have thus sketched, if
+steadily and laboriously pursued, will make a very thorough
+lawyer. There is certainly nothing in the plan beyond the
+reach of any young man, with ordinary industry and application,
+in a period of from five to seven years, with a considerable
+allowance for the interruptions of business and
+relaxation. One thing is certain,&mdash;there is no royal road
+to Law, any more than there is to Geometry. The fruits of
+study cannot be gathered without its toil. It seems the
+order of Providence that there should be nothing really
+valuable in the world not gained by labor, pain, care, or
+anxiety. In the law, a young man must be the architect
+of his own character, as well as of his own fortune. "The
+profession of the law," says Mr. Ritso, "is that, of all
+others, which imposes the most extensive obligations upon
+those who have had the confidence to make choice of it;
+and indeed there is no other path of life in which the unassumed
+superiority of individual merit is more conspicuously
+distinguished according to the respective abilities of
+the parties. The laurels that grow within these precincts
+are to be gathered with no vulgar hands; they resist the
+unhallowed grasp, like the golden branch with which the
+hero of the &AElig;neid threw open the adamantine gates that
+led to Elysium."</p>
+
+
+
+<hr style="width: 15%;" /><p><span class='pagenum'><a name="Page_154" id="Page_154">[Pg 154]</a></span></p>
+<h2><a name="No_III" id="No_III"></a>No. III.</h2>
+
+<h3>THE ENGLISH BAR.</h3>
+
+
+<p>There are three orders of men at the English Bar:
+1. Attorneys, or Solicitors in Chancery. 2. Barristers; and
+3. Serjeants.</p>
+
+<p>1. <i>Attorneys and Solicitors.</i>&mdash;Acts of Parliament have
+been made for the regulation of this class. The Stat. 6 &amp;
+7 Vict. c. 73, consolidating and amending several of the
+laws relating to attorneys and solicitors, prescribes the conditions
+of admission as an attorney, the time and mode of
+their service under articles; and the oaths to be administered
+to them; and authorizes the Judges of the courts of
+the common law, and the Master of the Rolls to appoint
+examiners to examine the fitness and capacity of all persons
+applying to be admitted as attorneys or solicitors; and
+the certificate, either of the common law or equity examiners,
+will be sufficient to entitle a person so examined to
+admission in all the courts, examination by both not being
+necessary. 3 Stewart's Blackst. 29.</p>
+
+<p>2. <i>Barristers.</i>&mdash;The proper legal denomination of this
+class is <i>apprentices</i>, being the first degree in the law conferred
+by the inns of court. Spelman defines apprentice,
+<i>tyro</i>, <i>discipulus</i>, <i>novitius in aliqua facultate</i>. This was
+probably the meaning of the term primarily; but as early<span class='pagenum'><a name="Page_155" id="Page_155">[Pg 155]</a></span>
+as the reign of Edward I, it was employed to denote counsel
+below the state and degree of serjeant at law; one degree
+corresponding to that of bachelor, and the other to that
+of doctor, in the universities (Pearce's History of the Inns
+of Court, 28). Lord Coke informs us, however, that this
+degree was anciently preferred to that of serjeant (2 Inst.
+214). They were termed <i>apprenticii ad legem</i>, or <i>ad barras</i>;
+and hence arose the cognomen of <i>barristers</i>. A barrister
+must have kept twelve terms, <i>i. e.</i>, been three years
+a member of an inn of court, before he can be called to the
+Bar. After a member of an inn of court has kept twelve
+terms, he may, without being called, obtain permission to
+practice <i>under the Bar</i>. This class of practitioners are
+called <i>special pleaders</i> or <i>equity draftsmen</i> (according as
+they prepare pleadings in the common law or equity courts),
+or <i>conveyancers</i>, who prepare deeds. 3 Stewart's Blackst.
+26, note. Those who are regularly called, however, may
+take upon them the causes of all suitors. Such of the barristers
+as have a patent of precedence, as king's counsel,
+sit within the Bar, with the serjeants; all others are called
+<i>utter</i> or <i>outer barristers</i>.</p>
+
+<p>3. <i>Serjeants at law.</i>&mdash;<i>Servientes ad legem</i>, or serjeant-countors.
+The coif or covering to the head worn by this
+order has also given a denomination to them. There exists
+some differences of opinion among judicial antiquarians as
+to the origin of the coif. It is supposed by some to have
+been invented about the time of Henry III, for the purpose
+of concealing the clerical tonsure, and thus disguising<span class='pagenum'><a name="Page_156" id="Page_156">[Pg 156]</a></span>
+those renegade clerks, who were desirous of eluding the
+canon, restraining the clergy from practising as counsel in
+the secular courts. Hortensius, 349. By others it is referred
+to a much earlier period, when the practice in the
+higher courts was monopolized by the clergy, and those who
+were not in orders invented the coif to conceal the want of
+clerical tonsure. 1 Campbell's Lives of the Chief Justices,
+85, note. There are, indeed, several circumstances to remind
+us of the ecclesiastical origin of our profession in
+England. The terms&mdash;on the festival of St. Hilary (Bishop
+of Poictiers, in France, who flourished in the fourth century);
+Easter; the Holy Trinity; and of the blessed Michael,
+the Archangel;&mdash;the habits of the judges, their
+appearance in court in scarlet, purple, or black, at particular
+seasons&mdash;the use of the word <i>brother</i> to denote serjeant, and
+<i>laity</i> to distinguish the people at large from the profession&mdash;the
+coif of the serjeants&mdash;the bands worn by judges,
+serjeants, and counsel, and the gown and hood of graduates
+of the inns of court,&mdash;many of such circumstances raise a
+strong presumption that the legal university was founded
+before the time of the enactment of the canons in the reign
+of King Henry III, compelling the clergy to abandon the
+practice of the law in the secular courts (Pearce's History,
+22). <i>Nulles clericus nisi causidicus</i>, was the character
+given of the clergy, soon after the Conquest, by William of
+Malmsbury. The judges, therefore, were usually created
+out of the sacred order, as was likewise the case among the
+Normans; and all the inferior offices were supplied by the<span class='pagenum'><a name="Page_157" id="Page_157">[Pg 157]</a></span>
+lower clergy, which has occasioned their successors to be
+styled <i>clerks</i> to this day (1 Bl. Com. 17). The livings in
+the gift of the Chancellor were originally intended as a
+provision for them, and an order was made in Parliament,
+4 Edw. III, that "the Chancellor should give the livings
+in his gift, rated at twenty marks and under, to the King's
+clerks in Chancery, the Exchequer, and the two Benches,
+according to usage, and to none others." 1 Campbell's
+Lives of the Chancellors, 170, note.</p>
+
+<p>In the time of Fortescue, sixteen years' continuance in
+the study of the law was the period of time considered a
+necessary qualification in candidates for the coif. There
+seems, however, never to have been a regulation to that
+effect; and it is certain that persons have often been advanced
+to this degree before that time. By the common
+law no one can be appointed a judge of the superior courts,
+who has not attained the degree of the coif; which degree
+can only be conferred on a barrister of one of the four inns
+of court. As soon as any member of an inn of court is
+raised by royal writ to the state, degree, and dignity of a
+serjeant-at-law, he ceases to be a member of the society.
+He removes to a new hall, and appears for the future in the
+inn of court as a guest (Pearce, 52).</p>
+
+<p>The most valuable privilege formerly enjoyed by the serjeants
+(who, besides the judges, were limited to fifteen in
+number), was the monopoly of the practice in the Court of
+Common Pleas. A bill was introduced into Parliament in
+the year 1755; for the purpose of destroying this monopoly;<span class='pagenum'><a name="Page_158" id="Page_158">[Pg 158]</a></span>
+but it did not pass. In 1834, a warrant under the sign
+manual of the Crown was directed to the Judges of the
+Common Pleas, commanding them to open that court to the
+Bar at large, on the ground that it would tend to the general
+dispatch of business. This order was received, and
+the court acted accordingly. But in 1839 the matter was
+brought before the court by the serjeants, when it was decided
+that the order was illegal; Tindal, C. J., declaring
+that, "from time immemorial, the serjeants have enjoyed
+the exclusive privilege of practising, pleading; and audience
+in the Court of Common Pleas. Immemorial enjoyment is
+the most solid of all titles; and we think the warrant of
+the Crown can no more deprive the serjeant, who holds an
+immemorial office, of the benefits and privileges which belong
+to it, than it could alter the administration of the law
+within the court itself." (10 Bingh. 571; 6 Bingh. N.
+C. 187, 232, 235.) However, the Statute 9 &amp; 10 Vict. c.
+54, has since extended to all barristers the privileges of
+serjeants in the Court of Common Pleas.</p>
+
+<hr style="width: 65%;" />
+
+<div class="footnotes"><h3>FOOTNOTES:</h3>
+
+<div class="footnote"><p><a name="Footnote_1_1" id="Footnote_1_1"></a><a href="#FNanchor_1_1"><span class="label">[1]</span></a> This oath seems first to have been prescribed by the
+Act of Assembly, passed August 22d, 1752: "An act for
+regulating and establishing fees." (1 Smith's Laws, 218.)
+It has been copied into the revised Act of 14th April, 1834,
+s. 69 (Pamphlet Laws, 354), with the addition of the clause
+to "support the Constitution of the United States, and the
+Constitution of this Commonwealth." In England, by the
+Stat. 4 Henry IV, c. 18 (A. D. 1402), it was provided,
+"that all attorneys shall be examined by the Justices, and
+by their discretion, their names put in the roll, and they
+that be good and virtuous, and of good fame, shall be received,
+and sworn well and truly to serve in their offices,
+and especially that they make no suit in a foreign country."
+The present oath or affirmation is, that he "will truly and
+honestly demean himself in the practice of an attorney,
+according to the best of his knowledge and ability." Stat.
+2 Geo. II, c. 23 (A. D. 1729); Stat. 6 &amp; 7 Vict. c. 73.
+The qualification of a sergeant-at-law, is given at large in
+2 Inst. 213; and in the valuable old book, "The Mirror of
+Justices," chap. 2, sec. 5, it is said that "every countor is
+chargeable by the oath, that he shall do no wrong nor
+falsity, contrary to his knowledge, but shall plead for his
+client the best he can, according to his understanding."</p></div>
+
+<div class="footnote"><p><a name="Footnote_2_2" id="Footnote_2_2"></a><a href="#FNanchor_2_2"><span class="label">[2]</span></a> Hurst's case, 1 Levins, 72; 1 Sid. 94, 151; Raym. 56,
+94; 1 Keb. 349, 354, 387.</p></div>
+
+<div class="footnote"><p><a name="Footnote_3_3" id="Footnote_3_3"></a><a href="#FNanchor_3_3"><span class="label">[3]</span></a> See Austin's case, 5 Rawle, 203. "An attorney at
+law," says C. J. Gibson, "is an officer of the court. The
+terms of the oath, exacted of him at his admission to the
+bar, prove him to be so;" "you shall behave yourself in
+your <i>office</i> of attorney," &amp;c. Again: it is declared in the
+Constitution, Article 1st, sec. 18 (Art. 1, sec. 19, of the
+amended Constitution of 1838), that "no member of Congress,
+or other person holding any <i>office</i> (except <i>attorney at
+law</i>, and in the militia), shall be a member of either
+House," &amp;c., which is a direct constitutional recognition.
+Prior to the Act of 14th April, 1834, which expressly required
+from them an oath to support the Constitution of
+the United States and the Constitution of the Commonwealth
+of Pennsylvania, attorneys at law were invariably
+held to be within the provisions of Art. 6, sect. 3, of the
+Constitution of the United States, and of Art. 8, of the
+Constitution of Pennsylvania, requiring all officers, executive
+and judicial, to take the oath to support those constitutions
+respectively. In Wood's case (1 Hopkins, 6), solicitors
+in chancery were held to be officers, within the meaning of
+a similar clause in the Constitution of New York. "The
+admission of an attorney, solicitor, or counsellor," says the
+opinion in that case, "is a general appointment to conduct
+causes before the courts: this station, thus conferred by
+public authority, has its peculiar powers, privileges, and
+duties, and thus becomes an office in the administration of
+justice." Leigh's case (1 Munford, 468), in which it was
+held, that attorneys are not officers, within the meaning of
+the statute of Virginia, requiring all persons holding any
+office, or place, under the commonwealth, to take an oath
+against duelling, does not perhaps conflict with this view.
+The case of Byrne's Admr's <i>v.</i> Stewart's Admr's (3 Desaus.
+478), may, however, be found upon examination
+somewhat at variance&mdash;not the decision itself, but the views
+expressed by Chancellor Watres in his opinion. The case
+simply decided what would seem unquestionable, that the
+legislature had a right to prohibit any public officer, judicial
+or otherwise, from practising as an attorney or solicitor.
+The Chancellor said, "He (a solicitor) can he considered
+in no other light than that of a private agent for the citizens
+of the country, who may employ him to do their legal
+business in the courts; and although the law requires of
+him certain qualifications, and he receives a license from
+the judges, yet his office is no more a public one, than
+would be any other profession or trade, which the legislature
+might choose to subject to similar regulations, and
+which is the practice in many other countries. It cannot
+be doubted, that a man's trade or profession is his property;
+and if a law should be passed avowedly for the purpose of
+restraining any member of this bar, who was not a public
+officer, from exercising his profession, I should declare such
+law void." This is to assume high ground; but the idea
+that a man's profession or trade cannot be constitutionally
+interfered with by legislative enactments, seems scarcely
+tenable, and especially, so far as the profession of the law
+is concerned, in view of the absolute power with which
+every court is clothed, both as to the admission of their
+attorneys, and forejudging or striking them from the roll.
+Act of 14th April, 1834, s. 73 (Pamphlet Laws, 354).
+Courts of record and of general jurisdiction, are vested with
+exclusive power to regulate the conduct of their own officers,
+and in this respect their decisions are put on the same
+footing with that numerous class of cases, which is wisely
+confided to the legal discretion and judgment of the court,
+having jurisdiction over the subject-matter. Commonwealth
+<i>v.</i> The Judges, 5 Watts &amp; Serg. 272; <i>Ex parte</i>
+Burr, 9 Wheat. 531; <i>Ex parte</i> Brown, 1 Howard (Miss.)
+Rep. 306; Perry <i>v.</i> State, 3 Iowa, 550; In the matter of
+Wills, 1 Mann, 392. "The power is one which ought to
+be exercised with great caution, but which is, we think,
+incidental to all courts, and necessary for the preservation
+of decorum and for the respectability of the profession."
+Marshall C. J. 9 Wheat. 531.</p></div>
+
+<div class="footnote"><p><a name="Footnote_4_4" id="Footnote_4_4"></a><a href="#FNanchor_4_4"><span class="label">[4]</span></a> Per Gibson, C. J., in Austin's case, 5 Rawle, 204.</p></div>
+
+<div class="footnote"><p><a name="Footnote_5_5" id="Footnote_5_5"></a><a href="#FNanchor_5_5"><span class="label">[5]</span></a> The exact weight of one hundred silver dollars of the
+old coinage is 85.9375 ounces; of the new coinage, 80
+ounces.</p></div>
+
+<div class="footnote"><p><a name="Footnote_6_6" id="Footnote_6_6"></a><a href="#FNanchor_6_6"><span class="label">[6]</span></a> <i>Ex parte</i> Carter, 1 Philada. Rep. 507. Blaike's Lessee
+<i>v.</i> Chambers, 1 Serg. &amp; Rawle, 169.</p></div>
+
+<div class="footnote"><p><a name="Footnote_7_7" id="Footnote_7_7"></a><a href="#FNanchor_7_7"><span class="label">[7]</span></a> Court and juries have their respective spheres assigned
+to them, within which each is to act and move, without
+encroaching upon the jurisdiction or province of the other.
+In order, then, that jurors as well as others may know that
+the direction and decision of the court, on any question of
+law arising in the course of the trial of an issue of fact, is
+not to be disregarded, and that a verdict given against such
+direction, whatever it may be, can never avail anything,
+unless it be to occasion additional delay, trouble, and expense
+to the parties, as also to the public, the course of the
+court is to set the verdict aside, and to order a new trial.
+And a court, from whose decisions on questions of law, an
+appeal lies, by writ of error or otherwise, ought never to
+depart from this course; otherwise the party against whom
+the verdict is given loses the benefit of such appeal, and of
+having the question decided by the Appellate Court, which
+would be a most unjust and illegal deprivation of his right.
+Per Kennedy, J., in Flemming <i>v.</i> Marine Ins. Co. 4
+Whart. 67. After two concurring verdicts against the
+direction of the court in point of law, a new trial will still
+be awarded. Commissioners of Berks County <i>v.</i> Ross, 3
+Binn. 520. "Principles the most firmly established might
+be overturned, because a second jury were obstinate and
+rash enough to persevere in the errors of the first, in a matter
+confessed by all to be properly within the jurisdiction
+of the court; I mean the construction of the law arising
+from undisputed facts." Per Tilghman, C. J., Ibid. 524.
+It is not necessary to refer to the numerous cases, both in
+the English and American courts, which accord with these
+principles. A judicious selection of the leading ones is to
+be found in the note to 1 Wharton's Troubat &amp; Haly, 529.
+The text and the note are confined, of course, to civil cases.</p></div>
+
+<div class="footnote"><p><a name="Footnote_8_8" id="Footnote_8_8"></a><a href="#FNanchor_8_8"><span class="label">[8]</span></a> Burnet's Life of Sir Matthew Hale, 72.</p></div>
+
+<div class="footnote"><p><a name="Footnote_9_9" id="Footnote_9_9"></a><a href="#FNanchor_9_9"><span class="label">[9]</span></a> An attorney is not answerable for every error or mistake;
+he ought not to be liable, in cases of reasonable
+doubt. Pitt <i>v.</i> Yalden, 4 Burrows, 2060. He shall be
+protected, when he acts with good faith, and to the best of
+his skill and knowledge. Gilbert <i>v.</i> Williams, 8 Mass. 57.
+The want of ordinary care and skill in such a person is
+gross negligence. Holmes <i>v.</i> Peck, 1 Rhode Island, Rep.
+245; Cox <i>v.</i> Sullivan, 7 Georgia, 144; Pennington <i>v.</i>
+Yell, 6 Engl. 212. As between the client and the attorney,
+the responsibility of the latter is as great and as strict
+here as in any country when want of good faith or attention
+to the cause is alleged; but in the exercise of the discretionary
+power usually confided in this country, and especially
+when the client resides at a great distance, an attorney
+ought not to be held liable where he has acted honestly
+and in a way he thought was for the interest of his client.
+Lynch <i>v.</i> The Commonwealth, 16 Serg. &amp; Rawle, 368;
+Stakely <i>v.</i> Robison, 10 Casey, 317. When, however, an
+attorney disobeys the lawful instructions of his client, and
+a loss ensues, for that loss the attorney is responsible.
+Gilbert <i>v.</i> Williams, 8 Mass. 57. If the holder of a note
+place it in the hands of an attorney-at-law, with instructions
+to bring suit upon it, and the attorney, acting under
+the honest impression that he would best promote the interests
+of his client by not bringing suit immediately, omits
+to do so, and the money is afterwards lost by the insolvency
+of the maker, the attorney is liable in an action against
+him; and the measure of damages is what might have been
+recovered from the maker of the note, if suit had been
+brought when the note was placed in the hands of the attorney
+for collection. Cox <i>v.</i> Livingston, 2 Watts. &amp; Serg.
+103; Wilcox <i>v.</i> Plummer, 4 Peters, 172. But a client
+has no right to control his attorney in the due and orderly
+conduct of a suit, and it is his duty to do what the court
+would order to be done, though his client instruct him
+otherwise. Anon., 1 Wendell, 108.</p></div>
+
+<div class="footnote"><p><a name="Footnote_10_10" id="Footnote_10_10"></a><a href="#FNanchor_10_10"><span class="label">[10]</span></a> An attorney is not compelled to appear for any one unless
+he takes his fee or backs the warrant. Anon., 1 Salk.
+87. The attorney cannot determine the relation himself,
+to his client's detriment. Love <i>v.</i> Hall, 3 Yerger, 408.
+When a solicitor appointed by a party has acted as such, he
+cannot be displaced by the appointment of another, without
+an order of the court. Mumford <i>v.</i> Murray, 1 Hopkins,
+369. After an attorney has entered his name upon the
+record, he cannot withdraw it without leave of the court;
+and until so withdrawn the service of a citation upon him
+in case of appeal is sufficient. United States <i>v.</i> Curry, 6
+Howard, U. S. Rep. 106.</p></div>
+
+<div class="footnote"><p><a name="Footnote_11_11" id="Footnote_11_11"></a><a href="#FNanchor_11_11"><span class="label">[11]</span></a> A counsel, attorney, or solicitor, will in no case be permitted,
+even if he should be willing to do so, to divulge any
+matter which has been communicated to him in professional
+confidence. This is not his privilege, but the privilege of
+the client, and none but the client can waive it. Jenkinson
+<i>v.</i> The State, 5 Blackford, 465; Benjamin <i>v.</i> Coventry,
+19 Wendell, 353; Parker <i>v.</i> Carter, 4 Munf. 273; Wilson
+<i>v.</i> Troup, 7 Johns. Ch. Rep. 25; Crosby <i>v.</i> Berger, 11
+Paige, 377; Bank of Utica <i>v.</i> Mersereau, 3 Barbour Ch.
+Rep. 528; Aiken <i>v.</i> Kilburne, 27 Maine, 252; Crisler <i>v.</i>
+Garland, 11 Smedes &amp; Marshall, 136; Chew <i>v.</i> The Farmers'
+Bank of Maryland, 2 Maryland Ch. Decis. 231. It
+will be found in some of these cases that though the counsel
+declined to be engaged for the client, yet the facts communicated
+were held confidential; the only exception recognized
+being where a purpose to perpetrate <i>in futuro</i> a
+felony or an action <i>malum in se</i> was disclosed. Bank of
+Utica <i>v.</i> Mersereau, 3 Barbour Ch. Rep. 377. In Moore
+<i>v.</i> Bray, 10 Barr, 519, it was held that communications of
+the object, for which an assignment of a mortgage was
+made, to a counsel concerned for the assignee, were privileged;
+although no question then arose as to the object of
+the assignment, and the counsel considered the communication
+in the light of a casual conversation. "The circle
+of protection," said Bell, J., "is not so narrow as to exclude
+communications a professional person may deem unimportant
+to the controversy, or the briefest and lightest talk the
+client may choose to indulge with his legal adviser, provided
+he regards him as such at the moment. To found a
+distinction on such a ground would be to measure the safety
+of the confiding party by the extent of his intelligence and
+knowledge, and to expose to betrayal those very anxieties,
+which prompt those in difficulty, to seek the ear of him in
+whom they trust in season and out of season."</p></div>
+
+<div class="footnote"><p><a name="Footnote_12_12" id="Footnote_12_12"></a><a href="#FNanchor_12_12"><span class="label">[12]</span></a> Burnet's Life of Hale, 1 Hale's Works, 59, 60. "He
+began," says Lord Campbell, "with the specious but impracticable
+rule of never pleading except on the right side,
+which would make the counsel to decide without knowing
+either facts or law, and would put an end to the administration
+of justice." 1 Lord Campbell's Lives of the Chief
+Justices, 412. There is the following curious note by Baxter
+in Burnet's Life of Hale. "And indeed Judge Hale
+would tell me that Bishop Usher was much prejudiced
+against lawyers because the worst causes find their advocates;
+but that he and Mr. Selden had convinced him of
+the reasons of it to his satisfaction; and that he did by acquaintance
+with them believe that there were as many honest
+men among lawyers, proportionably, as among any profession
+of men in England (not excepting bishops or
+divines)." 1 Hale's Works, 106.</p></div>
+
+<div class="footnote"><p><a name="Footnote_13_13" id="Footnote_13_13"></a><a href="#FNanchor_13_13"><span class="label">[13]</span></a> 2 Wynne's Eunomus, 557.</p></div>
+
+<div class="footnote"><p><a name="Footnote_14_14" id="Footnote_14_14"></a><a href="#FNanchor_14_14"><span class="label">[14]</span></a> "Although Serjeants have a monopoly of practice in
+the Common Pleas, they have a right to practice, and
+do practice, at this bar; and if we were to assign one of
+them as counsel, and he were to refuse to act, we should
+make bold to commit him to prison." Per C. J. Hale. 2
+Campbell's Lives of the Chief Justices, 20; citing Freeman,
+389; 2 Lev. 129; 3 Keble, 424, 439, 440.</p></div>
+
+<div class="footnote"><p><a name="Footnote_15_15" id="Footnote_15_15"></a><a href="#FNanchor_15_15"><span class="label">[15]</span></a> Let the circumstances against a prisoner be ever so
+atrocious, it is still the duty of the advocate to see that his
+client is convicted according to those rules and forms which
+the wisdom of the legislature have established, as the best
+protection of the liberty and security of the subject. Professor
+Christian's note to 4 Blackst. Com. 356. From the
+moment that any advocate can be permitted to say that he
+<i>will</i> or will <i>not</i> stand between the crown and the subject
+arraigned in the court where he daily sits to practise, from
+that moment the liberties of England are at an end. If
+the advocate refuses to defend from what <i>he may</i> think of
+the charge or of the defence, he assumes the character of
+the judge, nay, he assumes it before the hour of judgment;
+and in proportion to his rank and reputation, puts the
+heavy influence of perhaps a mistaken opinion into the
+scale against the accused, in whose favor the benevolent
+principle of English law makes all presumptions, and which
+commands the very judge to be his counsel. Lord Erskine,
+6 Campbell's Lives of the Chancellors, 361.</p></div>
+
+<div class="footnote"><p><a name="Footnote_16_16" id="Footnote_16_16"></a><a href="#FNanchor_16_16"><span class="label">[16]</span></a> Per Gibson, C. J., in Rush <i>v.</i> Cavenaugh, 2 Barr, 189.</p></div>
+
+<div class="footnote"><p><a name="Footnote_17_17" id="Footnote_17_17"></a><a href="#FNanchor_17_17"><span class="label">[17]</span></a> "There are many who know not how to defend their
+causes in judgment, and there are many who do, and therefore
+pleaders are necessary; so that that which the plaintiffs
+or actors cannot or know not how to do by themselves,
+they may do by their serjeants, attorneys, or friends."
+Mirr. of Justices, ch. 2, sec. v.</p></div>
+
+<div class="footnote"><p><a name="Footnote_18_18" id="Footnote_18_18"></a><a href="#FNanchor_18_18"><span class="label">[18]</span></a> Rush <i>v.</i> Cavenaugh, 2 Barr, 189. If the client in any
+suit furnishes his attorney with a plea which the attorney
+finds to be false, so that he cannot plead it for <i>the sake
+of</i> his conscience, the attorney may plead in this case,
+<i>quod non fuit veraciter informatus</i>, and in so doing he
+does his duty. Jenkins, 52.</p></div>
+
+<div class="footnote"><p><a name="Footnote_19_19" id="Footnote_19_19"></a><a href="#FNanchor_19_19"><span class="label">[19]</span></a> Whewell's Elements of Moral and Political Science,
+vol. 1, p. 257.</p></div>
+
+<div class="footnote"><p><a name="Footnote_20_20" id="Footnote_20_20"></a><a href="#FNanchor_20_20"><span class="label">[20]</span></a> Law Magazine, February, 1850, May, 1854. Law
+Review, February, 1850. Several articles on the subject,
+taken from the English press, are to be found in Littell's
+Living Age, vol. 24, pp. 179, 230, 306. I have added, in
+an <a href="#No_I">appendix</a>, Mr. Phillips's vindication of himself from
+these charges, in his correspondence with his friend Mr.
+Warren, preceded by a brief statement of the case.</p></div>
+
+<div class="footnote"><p><a name="Footnote_21_21" id="Footnote_21_21"></a><a href="#FNanchor_21_21"><span class="label">[21]</span></a> The civil law will not allow a man to be convicted on
+his bare confession, not corroborated by evidence of his
+guilt; because there may be circumstances which may induce
+an innocent man to accuse himself. Bowyer's Commentaries,
+355, note. Upon a simple and plain confession,
+the court hath nothing to do but to award judgment; but
+it is usually very backward in receiving and recording such
+confession out of tenderness to the life of the subject; and
+will generally advise the prisoner to retract it and plead to
+the indictment. 4 Blackst. Comm. 329. 2 Hale, P. C.
+225.</p></div>
+
+<div class="footnote"><p><a name="Footnote_22_22" id="Footnote_22_22"></a><a href="#FNanchor_22_22"><span class="label">[22]</span></a> Per Story, J., in Williams <i>v.</i> Read, 3 Mason, 418.</p></div>
+
+<div class="footnote"><p><a name="Footnote_23_23" id="Footnote_23_23"></a><a href="#FNanchor_23_23"><span class="label">[23]</span></a> In enumerating the things to which every pleader of
+others' causes ought to have a regard, the Mirror of Justices
+says, "That he put no false dilatories into court, nor
+false witnesses, nor move or offer any false corruptive deceits,
+leasings, or false lies, nor consent to any such, but
+truly maintain his client's cause, so that it fail not by any
+negligence or default in him, nor by any threatening, hurt,
+or villany, disturb the judge, plaintiff, serjeant, or any other
+in court, whereby he hinder the right or the hearing of the
+cause." Chap. 2, s. 5. This is indeed in the very words
+of the serjeant's oath, and Lord Coke remarks that it consists
+of four parts: "1. That he shall well and truly serve
+the king's people, as one of the serjeants at law. 2. That
+he shall truly counsel them that he shall be retained with,
+after his cunning. 3. That he shall not defer, wait, or
+delay their causes willingly for covetousness of money, or
+other thing that may tend to his profit. 4. That he shall
+give due attendance accordingly." 2 Inst. 214.</p></div>
+
+<div class="footnote"><p><a name="Footnote_24_24" id="Footnote_24_24"></a><a href="#FNanchor_24_24"><span class="label">[24]</span></a> A pleader is suspendable when he is attainted to have
+received fees of two adversaries, in one cause. Mirror of
+Justices, chap. 2, sect. 5.</p></div>
+
+<div class="footnote"><p><a name="Footnote_25_25" id="Footnote_25_25"></a><a href="#FNanchor_25_25"><span class="label">[25]</span></a> "It is impossible to state a case, in which a witness
+should be treated roughly. If you attempt it, every one
+feels offended, in the person of the witness. You make
+your work more difficult; the witness shuts himself up,
+considers you as his enemy, and stands upon his defence:
+whereas, an open countenance, and an easy insinuating address,
+unlocks his breast, and disarms him of his caution, if
+he has any." Deinology, 228. This admirable little work,
+which has been attributed to the pen of Lord Erskine,
+cannot be too highly recommended to the student of law.
+The postscript, which suggests considerations on the <i>viva
+voce</i> examination of witnesses, is particularly worthy a very
+attentive perusal.</p></div>
+
+<div class="footnote"><p><a name="Footnote_26_26" id="Footnote_26_26"></a><a href="#FNanchor_26_26"><span class="label">[26]</span></a> Preston on Estates, 2.</p></div>
+
+<div class="footnote"><p><a name="Footnote_27_27" id="Footnote_27_27"></a><a href="#FNanchor_27_27"><span class="label">[27]</span></a> Co. Litt. 71 <i>a.</i></p></div>
+
+<div class="footnote"><p><a name="Footnote_28_28" id="Footnote_28_28"></a><a href="#FNanchor_28_28"><span class="label">[28]</span></a> Ibid. 6 <i>a.</i></p></div>
+
+<div class="footnote"><p><a name="Footnote_29_29" id="Footnote_29_29"></a><a href="#FNanchor_29_29"><span class="label">[29]</span></a> Art. Edward Tilghman, in the Encyclop&aelig;dia Americana,
+vol. xiv; The Leaders of the Old Bar of Philadelphia,
+50. Let me recommend to the attention of the
+student a curious and interesting work, entitled "An introduction
+to the science of the law, showing the advantages
+of a legal education, grounded on the learning of Lord
+Coke's Commentaries, upon Littleton's Tenures, &amp;c., by
+Frederick Ritso, Esq." There are few works of celebrity,
+in regard to which such opposite opinions have been maintained
+as the Commentaries of Sir William Blackstone.
+While some have expressed the most enthusiastic admiration,
+there have been others, like Mr. Austin, Professor of
+General Jurisprudence, in the University of London (Outlines
+of Lectures, 63), who have dealt in language of unsparing
+condemnation and contempt. Mr. Ritso thinks
+that "the error was in adopting them as an institute for the
+instruction and education of professional students, which
+was evidently no part of Blackstone's plan, nor within the
+scope of his engagement." In this point of view, he
+objects, that "he represents everything rather for effect,
+than with a view to demonstrate. Like the gnomon upon
+the sun-dial, he takes no account of any hours, but the
+serene:
+</p>
+<div class="poem"><div class="stanza">
+<span class="i12">Et qu&aelig;,<br /></span>
+<span class="i0">Desperat tractata nitescere posse, relinquit.<br /></span>
+</div></div>
+<p>
+In a professional point of view, this solicitude rather to
+captivate the imagination of the student, than to exercise
+and discipline the understanding, is equally unprofitable
+and inconvenient. It puts him off with ornamental illustration,
+instead of solid argument, and leads to a sort of
+half information, which is often much worse than no information
+at all upon the subject." There is some force
+in these remarks; yet, too many great lawyers have begun
+their studies with Blackstone, to leave any doubt that it is
+a proper first book. It paves the way for more repulsive,
+though more recondite and valuable works. I very much
+fear, indeed, that a disposition has existed of late years to
+repudiate Coke upon Littleton entirely. Chancellor Kent
+has shown his leaning in that direction (Comm. vol. i,
+506, 512). I subscribe fully, however, to Mr. Butler's
+opinion: "He is the best lawyer, and will succeed best in
+his profession, who best understands Coke upon Littleton."
+It ought not, perhaps, to be placed in the hands of the
+student until he has made some progress in his reading of
+other works: but sooner or later, he should aim to master
+it. Lord Coke was, himself, deeply imbued with the love
+of his profession, and he is able to transfuse his own spirit
+into his readers. His method may be objectionable in some
+respects; but I cannot help thinking that the life of his
+work is gone when it is hacked to pieces, and then attempted
+to be fitted together again upon another man's
+skeleton. I have ventured to add in the Appendix (<a href="#No_II">No.
+II</a>), a sketch of such a course of reading, of not very extensive
+compass, as may with advantage be pursued by
+every young man after his admission to the Bar.</p></div>
+
+<div class="footnote"><p><a name="Footnote_30_30" id="Footnote_30_30"></a><a href="#FNanchor_30_30"><span class="label">[30]</span></a> Maddock's Chancery. Preface.</p></div>
+
+<div class="footnote"><p><a name="Footnote_31_31" id="Footnote_31_31"></a><a href="#FNanchor_31_31"><span class="label">[31]</span></a> Bowyer's Headings on the Canon Law, p. 44. Lord
+Campbell says that the person here mentioned was George
+Hardinge&mdash;a Welsh judge and nephew of Lord Camden.
+5 Lives of the Chancellors, 20, 281. According to Lord
+Mahon, it was on the 15th of March, 1782, in the debate
+on a motion of Sir John Rouse, of want of confidence in
+the ministry after the surrender of Lord Cornwallis. He
+ascribes the remark to Sir James Marriott, but says that,
+although he was the assertor of this singular argument, the
+honor of its original invention seems rather to belong to
+Mr. Hardinge. 5 Mahon's Hist. 139.</p></div>
+
+<div class="footnote"><p><a name="Footnote_32_32" id="Footnote_32_32"></a><a href="#FNanchor_32_32"><span class="label">[32]</span></a> Gibbon's Decline and Fall of the Roman Empire, c.
+xliv.</p></div>
+
+<div class="footnote"><p><a name="Footnote_33_33" id="Footnote_33_33"></a><a href="#FNanchor_33_33"><span class="label">[33]</span></a> Continuus inde et s&aelig;vus accusandis reis Sicilius, multique
+audaci&aelig; ejus &aelig;muli. Nam cuncta legum et magistratuum
+munia in se trahens Princeps, materiam pr&aelig;dandi
+patefecerat. Nec quidquam public&aelig; mercis tam venale
+fuit, quam advocatorum perfidia: adeo ut Samius insignis
+eques Romanus, quadringentis nummorum millibus, Sicilio
+datis, et cognita prevaricatione, ferro in domo ejus incubuerit.
+Igitur incipiente C. Silio consule designato, cujus
+de potentia et exitio in tempore memorabo, consurgunt patres,
+legemque Cinciam flagitant, qua cavetur antiquitus ne
+quis ob causam orandam pecuniam donumve accipiat. Tacit.
+Annul. 1. 11, c. 5.</p></div>
+
+<div class="footnote"><p><a name="Footnote_34_34" id="Footnote_34_34"></a><a href="#FNanchor_34_34"><span class="label">[34]</span></a> Chancellor Walworth, in Adams <i>v.</i> Stevens, 26 Wendell,
+21. While expressing, as will be seen presently, the
+opinion that authority as well as sound policy would have
+led me to a different conclusion from that at which Chancellor
+Walworth arrived, it is proper to acknowledge that I
+have drawn largely upon his learned judgment in this case,
+and at the same time to express the high admiration I entertain
+for the ability with which the last of the New York
+Chancellors illustrated the chair where such truly great men
+had sat before him.</p></div>
+
+<div class="footnote"><p><a name="Footnote_35_35" id="Footnote_35_35"></a><a href="#FNanchor_35_35"><span class="label">[35]</span></a> Gibbon's Decline and Fall, c. xvii.</p></div>
+
+<div class="footnote"><p><a name="Footnote_36_36" id="Footnote_36_36"></a><a href="#FNanchor_36_36"><span class="label">[36]</span></a> 3 Blackst. Com. 28; Davis Pref. 22; 1 Chanc. Rep.
+38; Davis, 23; Hodgson <i>v.</i> Scarlett, 1 B. &amp; Ald. 232;
+Finch. L. 188; and see Butler's note to 1 Co. Litt. 295 a.
+So it is with the advocates in the civil law. Vost ad Pand.
+tit. de Postal. Numb. 6, 7, 8; Gravina de Oster. lib. 1, s.
+42, 43, 44. Boucher D'Asyis, Hist. Abr&eacute;g&eacute; de L'Order
+des Avocats, c. iv. See also the commencement of the
+Dialogue des Avocats du Parl. de Paris, by Loisil, which
+contains curious particulars throughout respecting the ancient
+French Bar. An amusing anecdote is related of Pasquier,
+the famous French advocate. In 1583, while he
+was attending the assizes (<i>les grands jours</i>) at Troyes, he
+sat for his portrait, and after the painter had finished the
+likeness, which Pasquier had not yet examined, he asked
+him to represent him with a book in his hand. The
+painter said that it was too late, as the picture was completed
+without hands. Upon this the witty lawyer immediately
+wrote the following lines as a motto for the portrait:
+</p>
+<div class="poem"><div class="stanza">
+<span class="i0">Nulla hic Pascasio manus est: Lex Cincia quippe<br /></span>
+<span class="i0">Causidicos nulla sanxit habere manus.<br /></span>
+</div></div>
+<p>
+Forsyth's Hortensius, 424.</p></div>
+
+<div class="footnote"><p><a name="Footnote_37_37" id="Footnote_37_37"></a><a href="#FNanchor_37_37"><span class="label">[37]</span></a> The reader will find in the Appendix, <a href="#No_III">No. III</a>, an account
+of the different orders of the English Bar.</p></div>
+
+<div class="footnote"><p><a name="Footnote_38_38" id="Footnote_38_38"></a><a href="#FNanchor_38_38"><span class="label">[38]</span></a> In some States, the professions of attorney and counsellor
+at law are not distinct; the same person conducts the
+cause in all its stages; and it has not been considered that
+his authority ceases when judgment is obtained. The
+attorney is in some degree the agent as well as the attorney
+of the party. Huston, J., in Lynch <i>v.</i> The Commonwealth,
+16 Serg. &amp; Rawle, 368.</p></div>
+
+<div class="footnote"><p><a name="Footnote_39_39" id="Footnote_39_39"></a><a href="#FNanchor_39_39"><span class="label">[39]</span></a> Mooney <i>v.</i> Lloyd, 5 Serg. &amp; Rawle, 416.</p></div>
+
+<div class="footnote"><p><a name="Footnote_40_40" id="Footnote_40_40"></a><a href="#FNanchor_40_40"><span class="label">[40]</span></a> Hornblower, C. J., in Seeley et al. <i>v.</i> Crane, 3 Green,
+N. J. 35. "I shall be sorry to see the honorary character
+of the fees of barristers and physicians done away with.
+Though it seems to be a shadowy distinction, yet I believe
+it to be beneficial in effect. It contributes to preserve the
+idea of profession, of a class which belongs to the public,
+in the employment and remuneration of which no law
+interferes, but the citizen acts as he likes, '<i>foro conscienti&aelig;</i>.'"
+Coleridge's Table Talk, vol. 2.</p></div>
+
+<div class="footnote"><p><a name="Footnote_41_41" id="Footnote_41_41"></a><a href="#FNanchor_41_41"><span class="label">[41]</span></a> Gray <i>v.</i> Brackenridge, 2 Penna. Rep. 181; Foster <i>v.</i>
+Jack, 4 Watts, 33. In New Jersey, an advocate's fees are
+not recoverable at law. Shaver <i>v.</i> Norris, Penning. 63;
+Seeley <i>v.</i> Crane, 3 Green, 35; Van Alter <i>v.</i> McKinney's
+Exrs. 1 Harrison, 236. That the general current of decisions
+is in the opposite direction, will be seen by consulting
+Stevens <i>v.</i> Adams, 23 Wendell, 57; S. C. 26 Wendell,
+451; Newman <i>v.</i> Washington, Martin &amp; Yerger, 79;
+Stevens <i>v.</i> Monges, 1 Harrington, 127; Bayard <i>v.</i> McLane,
+3 Harrington, 217; Duncan <i>v.</i> Beisthaupt, 1 McCord, 149;
+Downing <i>v.</i> Major, 2 Dana, 228; Christy <i>v.</i> Douglas,
+Wright's Ch. Rep. 485; Webb <i>v.</i> Hepp, 14 Missouri,
+354; Vilas <i>v.</i> Downer, 21 Vermont, 419; Lecatt <i>v.</i> Sallee,
+3 Porter, 115; Easton <i>v.</i> Smith, 1 E. D. Smith, 318.</p></div>
+
+<div class="footnote"><p><a name="Footnote_42_42" id="Footnote_42_42"></a><a href="#FNanchor_42_42"><span class="label">[42]</span></a> Chancellor Walworth, in Adams <i>v.</i> Stevens, 26 Wendell,
+451; Foster <i>v.</i> Jack, 4 Watts, 337.</p></div>
+
+<div class="footnote"><p><a name="Footnote_43_43" id="Footnote_43_43"></a><a href="#FNanchor_43_43"><span class="label">[43]</span></a> Senator Verplanck, in Adams <i>v.</i> Stevens, 26 Wendell,
+451.</p></div>
+
+<div class="footnote"><p><a name="Footnote_44_44" id="Footnote_44_44"></a><a href="#FNanchor_44_44"><span class="label">[44]</span></a> Vilas <i>v.</i> Downer, 21 Vermont, 419. Responsibility in
+a confidential employment is a legitimate subject of compensation,
+and in proportion to the magnitude of the interests
+committed to the agent. Kentucky Bank <i>v.</i> Combs,
+7 Barr, 543.</p></div>
+
+<div class="footnote"><p><a name="Footnote_45_45" id="Footnote_45_45"></a><a href="#FNanchor_45_45"><span class="label">[45]</span></a> That evidence of usage is admissible to show what is
+the rule of compensation for similar services to those sued
+for, see Vilas <i>v.</i> Downer, 21 Vermont, 424; Badfish <i>v.</i>
+Fox, 23 Maine, 94.</p></div>
+
+<div class="footnote"><p><a name="Footnote_46_46" id="Footnote_46_46"></a><a href="#FNanchor_46_46"><span class="label">[46]</span></a> Concerning the pleader's salary, says the Mirror, chap.
+2, sec. 5, "four things are to be regarded: 1. The greatness
+of the cause. 2. The pains of the serjeant. 3. His
+worth, as his learning, eloquence, and gift. 4. The usage
+of the court."</p></div>
+
+<div class="footnote"><p><a name="Footnote_47_47" id="Footnote_47_47"></a><a href="#FNanchor_47_47"><span class="label">[47]</span></a> Les lois et les docteurs, les anciennes ordonnances et
+plusieurs anciens arr&ecirc;ts donnent aux avocats une action
+pour le paiement de leurs honoraires: mais, suivant la
+derni&egrave;re jurisprudence du Parlement de Paris et la discipline
+actuelle du barreau, ou ne souffre point qu'un
+avocat intente une telle action. 1 Dupin, Profession
+d'Avocat, 110. Il est possible, que l'usage ne soit qu'un
+pr&eacute;jug&eacute;; mais ce pr&eacute;jug&eacute; a eu une salutaire influence sur
+la splendeur du barreau Francais. On ne pr&eacute;tend pas, en
+France, qu'un avocat n'a pas droit &agrave; un honoraire pour
+prix de ses travaux. Jamais on n'a refus&eacute; d'en allouer &agrave;
+ceux qui en ont r&eacute;clam&eacute;. Dans plusieurs barreaux, ces
+r&eacute;clamations sont m&ecirc;me toler&eacute;es. Mais le barreau de Paris
+s'est montr&eacute; plus s&eacute;v&egrave;re; et non seulement autrefois, mais
+encore aujourd'hui, tout avocat &agrave; la cour qui actionnerait
+un client en paiement d'honoraires serait ray&eacute; du tableau.
+Du reste, s'il est defendu d'exiger, il est permis de recevoir
+tout ce que le client veut bien assigner pour prix aux services
+de son avocat, en raison de ses peines et de l'importance
+des travaux. Ibid. 698.</p>
+
+<p>Les honoraires dus par les parties aux avocats charg&eacute;s du
+soin de leur d&eacute;fense, ne doivent pas &ecirc;tre restraints &agrave; la taxe
+&eacute;tablie par le tarif. Cette taxe a pour objet seulement de
+fixer la somme due par la partie qui succombe, et non d'apprecier
+les soins de l'avocat, appreciation qui doit &ecirc;tre faite
+selon l'importance et la difficult&eacute; du travail. Ibid. 699.</p></div>
+
+<div class="footnote"><p><a name="Footnote_48_48" id="Footnote_48_48"></a><a href="#FNanchor_48_48"><span class="label">[48]</span></a> Arden <i>v.</i> Patterson, 5 Johns. Ch. Rep. 48.</p></div>
+
+<div class="footnote"><p><a name="Footnote_49_49" id="Footnote_49_49"></a><a href="#FNanchor_49_49"><span class="label">[49]</span></a> Foster <i>v.</i> Jack, 4 Watts, 338, 339.</p></div>
+
+<div class="footnote"><p><a name="Footnote_50_50" id="Footnote_50_50"></a><a href="#FNanchor_50_50"><span class="label">[50]</span></a> Clippinger <i>v.</i> Hepbaugh, 5 Watts. &amp; Serg. 315; Marshall
+<i>v.</i> The Baltimore and Ohio Railroad Co., 16 Howard
+(S. C.) Rep. 336. That champerty is an offence at common
+law, and that contracts of that character, between
+client and counsel, are void on that ground, and as against
+public policy, will be found to have been maintained in
+Rust <i>v.</i> Larue, 4 Litt. 411; Caldwell's Administrators <i>v.</i>
+Shepherd's Heirs, 6 Monroe, 391; Thurston <i>v.</i> Percival, 1
+Pick. 415; Arden <i>v.</i> Patterson, 5 Johns. Ch. Rep. 48;
+Bleakley's case, 5 Paige, 311; Wallis <i>v.</i> Loubert, 2 Denio,
+607; Backus <i>v</i>. Byron, 4 Michigan, 535; Elliott <i>v.</i> McClelland,
+17 Alabama, 206. The cases on the other side, are,
+Thallhimer <i>v.</i> Brinckerhoff, 3 Cowen, 643; Ramsay's Devisees
+<i>v.</i> Trent, 10 B. Monroe, 336; Bayard <i>v.</i> McLane,
+3 Harrington, 216; Lytle <i>v.</i> State, 17 Arkansas, 608;
+Newkirk <i>v.</i> Cone, 18 Illinois, 449; Major <i>v.</i> Gibson, 1
+Patton Jr. &amp; Heath (Va.), 48; Wright <i>v.</i> Meek, 3 Iowa,
+472. In New York, by the Revised Statutes, it was made
+an offence, punishable by fine or imprisonment, and removal
+from the Bar, for any attorney, counsellor, or solicitor, directly
+or indirectly to buy, or be in any manner interested
+in buying, or to advance or procure money to be advanced
+upon anything in action, with the intent, or for the purpose
+of bringing any suit thereon. 2 Revised Stat. 386.
+The Code of Procedure appears to have changed the law in
+this respect, and to enable parties to make such bargains as
+they please with their attorneys. Code of Procedure, s.
+258; Satterlee <i>v.</i> Frazer, 2 Sandf. S. C. Rep. 142; Benedict
+<i>v</i>. Stuart, 23 Barb. 420; Ogden <i>v.</i> Des Arts, 4 Duer
+(N. Y.), 275; Sedgwick <i>v.</i> Stanton, 4 Kernan, 289. In
+Kentucky there appears to be a statute, which provides that
+any one not a party, receiving as compensation for services
+in prosecuting or defending a suit the whole or part of the
+subject-matter in suit, is guilty of champerty, and it has
+been held that this statute extends to attorneys. Davis <i>v.</i>
+Sharron, 15 B. Monroe, 64. In England, contingent fees
+are held to be clearly within the statutes of champerty and
+maintenance. Penrice <i>v.</i> Parker, Rep. Temp. Finch, 75.</p></div>
+
+<div class="footnote"><p><a name="Footnote_51_51" id="Footnote_51_51"></a><a href="#FNanchor_51_51"><span class="label">[51]</span></a> 2 Wallace, Jr. Rep. 452.</p></div>
+
+<div class="footnote"><p><a name="Footnote_52_52" id="Footnote_52_52"></a><a href="#FNanchor_52_52"><span class="label">[52]</span></a> 10 Casey, 299.</p></div>
+
+<div class="footnote"><p><a name="Footnote_53_53" id="Footnote_53_53"></a><a href="#FNanchor_53_53"><span class="label">[53]</span></a> Paciscendi quidem ille piraticus mos; et imponentium
+periculis pretia, procul abominanda negotiatio, etiam a mediocriter
+improbis aberit: cum pr&aelig;sertim bonos homines
+bonasque causas tuenti non sit metuendus ingratus, qui si
+futurus, malo tamen ille peccet. Quinct. Lib. xii, c. 7.</p></div>
+
+<div class="footnote"><p><a name="Footnote_54_54" id="Footnote_54_54"></a><a href="#FNanchor_54_54"><span class="label">[54]</span></a> Evans <i>v.</i> Ellis, 5 Denio, 640; Newman <i>v.</i> Payne, 2
+Ves. 199; Walmsley <i>v.</i> Booth, 3 Atk. 25; Montesquieu <i>v.</i>
+Sandys, 18 Ves. 313. The doctrine has been fully followed
+in this country; Stockton <i>v.</i> Ford, 11 How. U. S. 247;
+Starr <i>v.</i> Vanderheyden, 9 Johns. 253; Howell <i>v.</i> Ransom,
+11 Paige, 538; De Rose <i>v.</i> Fay, 4 Edw. Ch. 40; Lewis <i>v.</i>
+J. A., Ibid. 599; Berrien <i>v.</i> McLane, 1 Hoffman, Ch.
+Rep. 424; Miles <i>v.</i> Ervin, 1 McCord, Ch. Rep. 524; Rose
+<i>v.</i> Mynell, 7 Yerger, 30; Bibb <i>v.</i> Smith, 1 Dana, 482;
+Smith <i>v.</i> Thompson's Heirs, 7 B. Monroe, 308; Jennings
+<i>v.</i> McConnel, 17 Illinois, 148.
+</p><p>
+An agreement made by a client with his counsel, after
+the latter had been employed in a particular business, by
+which the original contract is varied, and greater compensation
+is secured to the counsel than may have been agreed
+upon when first retained, is invalid and cannot be enforced.
+Lecatt <i>v.</i> Sallee, 3 Porter, 115.</p></div>
+
+<div class="footnote"><p><a name="Footnote_55_55" id="Footnote_55_55"></a><a href="#FNanchor_55_55"><span class="label">[55]</span></a> In Foss's Grandeur of the Law, eighty-two existing
+peerages are stated to have sprung from the law. That
+was in 1843.</p></div>
+
+<div class="footnote"><p><a name="Footnote_56_56" id="Footnote_56_56"></a><a href="#FNanchor_56_56"><span class="label">[56]</span></a> Non merum, si ob hanc facultatem homines s&aelig;pe etiam
+non nobiles consulatum consecuti sunt: pr&aelig;sertim cum h&aelig;c
+eadem res plurimas gratias, firmissimas amicitias, maxima
+studia pariat. Cic. pro Mur&aelig;na.</p></div>
+
+<div class="footnote"><p><a name="Footnote_57_57" id="Footnote_57_57"></a><a href="#FNanchor_57_57"><span class="label">[57]</span></a> Vivit, vivetque per omnium s&aelig;culorum memoriam.
+Dumque hoc vel forte vel providentia vel utcunque constitutum
+rerum natur&aelig; corpus, quod ille p&aelig;ne solus Romanorum
+animo vidit, ingenio complexus est, eloquentia
+illuminavit, manebit incolume: comitem &aelig;vi sui laudem
+Ciceronis trahet; omnisque posteritas illius in te scripta
+mirabitur, tuum in eum factum execrabitur: citiusque in
+mundo genus hominum, quam cadet. Vell. Patere. L. 2.</p></div>
+
+<div class="footnote"><p><a name="Footnote_58_58" id="Footnote_58_58"></a><a href="#FNanchor_58_58"><span class="label">[58]</span></a> Sir William Jones adds to his other claims upon our
+admiration that of a decided partiality to the character and
+fortunes of our American Republics. "The sum of my
+opinion is," says he, "that while all the American people
+understand the modern art of war, and learn jurisprudence
+by serving in rotation upon grand and petit juries, their
+liberty is secure, and they will certainly flourish most when
+their public affairs are best administered by their Senate
+and Councils. I cannot think a monarchy or an oligarchy
+<i>stronger</i> in substance, whatever they may be in appearance,
+than a popular government.... I shall not die in
+peace without visiting your United States for a few months
+before the close of the eighteenth century. May I find
+wisdom and goodness in your Senate, arms and judicature,
+which are power, in your commons, and the blessings of
+wealth and peace equally distributed among all." 2 Wynne's
+Eunomus, 359, note.</p></div>
+
+<div class="footnote"><p><a name="Footnote_59_59" id="Footnote_59_59"></a><a href="#FNanchor_59_59"><span class="label">[59]</span></a> Note at p. <a href="#Footnote_20_20">47</a>.</p></div>
+
+<div class="footnote"><p><a name="Footnote_60_60" id="Footnote_60_60"></a><a href="#FNanchor_60_60"><span class="label">[60]</span></a> Note at p. <a href="#Footnote_29_29">75</a>.</p></div>
+</div>
+
+<p>&nbsp;</p>
+<p>&nbsp;</p>
+<hr class="full" />
+
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+The Project Gutenberg eBook, An Essay on Professional Ethics, by George
+Sharswood
+
+
+This eBook is for the use of anyone anywhere at no cost and with
+almost no restrictions whatsoever.  You may copy it, give it away or
+re-use it under the terms of the Project Gutenberg License included
+with this eBook or online at www.gutenberg.org
+
+
+
+
+
+Title: An Essay on Professional Ethics
+       Second Edition
+
+
+Author: George Sharswood
+
+
+
+Release Date: August 20, 2007  [eBook #22359]
+
+Language: English
+
+Character set encoding: ISO-646-US (US-ASCII)
+
+
+***START OF THE PROJECT GUTENBERG EBOOK AN ESSAY ON PROFESSIONAL ETHICS***
+
+
+E-text prepared by Marilynda Fraser-Cunliffe, Stephen Blundell, and the
+Project Gutenberg Online Distributed Proofreading Team
+(http://www.pgdp.net) from page images generously made available by the
+Making of America Books Collection of the University of Michigan's Digital
+Library Production Service (http://www.umdl.umich.edu/)
+
+
+
+Note: Images of the original pages are available through
+      the Making of America Books Collection of the
+      University of Michigan's Digital Library Production
+      Service. See
+      http://www.hti.umich.edu/cgi/t/text/text-idx?c=moa;idno=AJF2351.0001.001
+
+
+Transcriber's note:
+
+      Minor typographical errors have been corrected without note.
+
+      The oe ligature has been transcribed as [oe].
+
+      A table of contents, though not present in the original, has been
+      provided below:
+
+         PREFACE.
+         INTRODUCTION.
+         PROFESSIONAL ETHICS.
+         APPENDIX.
+           No. I.
+           No. II.
+           No. III.
+
+
+
+
+
+PROFESSIONAL ETHICS.
+
+AN ESSAY ON PROFESSIONAL ETHICS.
+
+by
+
+GEORGE SHARSWOOD.
+
+
+ Id non eo tantum, quod si vis illa dicendi malitiam instruxerit, nihil
+ sit publicis privatisque rebus perniciosius eloquentia: sed nos quoque
+ ipsi, qui pro virile parte conferre aliquid ad facultatem dicendi
+ conati sumus, pessime mereamur de rebus humanis, SI LATRONI COMPAREMUS
+ HAEC ARMA, NON MILITI.
+                                                    QUINCT. DE INST. OR.
+
+
+
+
+
+
+Second Edition.
+
+Philadelphia:
+T. & J. W. Johnson & Co.,
+Law Booksellers and Publishers,
+No. 535 Chestnut Street.
+1860.
+
+Entered, according to Act of Congress, in the year 1860,
+by T. & J. W. Johnson & Co.,
+in the Clerk's Office of the District Court for the Eastern District
+of Penn'a.
+
+C. Sherman & Son, Printers,
+S. W. Cor. Seventh and Cherry Streets, Philadelphia.
+
+
+
+
+                                   TO
+
+                           MY HONORED MASTER,
+
+                      JOSEPH R. INGERSOLL, LL.D.,
+
+                                INSCRIBED
+
+                                  AS A
+
+                              TESTIMONY OF
+
+                         RESPECT AND GRATITUDE.
+
+
+
+
+PREFACE.
+
+
+The following Essay was originally published under the title of "A
+Compend of Lectures on the Aims and Duties of the Profession of the Law,
+delivered before the Law Class of the University of Pennsylvania." A
+portion of it had been read by the author as an Introductory Lecture at
+the opening of the Fifth Session of the Law Department of that
+Institution, October 2d, 1854. The young gentlemen, alumni, and students
+of the school, who were present on that occasion, requested a copy for
+publication, in order that each of them might possess a memento of their
+connection with the Institution. The author preferred to publish the
+entire Compend than merely a part of it. He hesitated much in doing so,
+because the questions discussed are difficult, and opinions upon them
+variant, and he could scarcely hope that he had in every case succeeded
+in just discrimination. A review of the matter now, when a second
+edition has been called for, has suggested, however, no important change
+in the principles advanced, though a few additions have been made, some
+inaccuracies corrected, and an introduction upon the importance of the
+profession, in a public point of view, prefixed.
+
+                                                             G. S.
+
+
+
+
+INTRODUCTION.
+
+
+The dignity and importance of the Profession of the Law, in a public
+point of view, can hardly be over-estimated. It is in its relation to
+society at large that it is proposed to consider it. This may be done by
+showing its influence upon legislation and jurisprudence. These are the
+right and left hands of government in carrying out the great purposes of
+society. By legislation is meant the making of law--its primary
+enactment or subsequent alteration. Jurisprudence is the science of what
+the law is or means, and its practical application to cases as they
+arise. The province of legislation is _jus dare_--of jurisprudence,
+_jus dicere_. The latter is entirely in the hands of lawyers as a
+body--the former almost entirely.
+
+Legislation is indeed a nobler work than even jurisprudence. It is the
+noblest work in which the intellectual powers of man can be engaged, as
+it resembles most nearly the work of the Deity. It is employed as well
+in determining what is right or wrong in itself--the due proportion of
+injuries and their remedies or punishments--as in enforcing what is
+useful and expedient. How wide the scope of such a work! The power of
+society over its individual members, or, in other words, sovereignty,
+which is practically vested in the legislature, is a type of the Divine
+power which rules the physical and moral universe. "There is one
+Lawgiver," says the Apostle James. Not that the Supreme Being is the
+sole universal lawgiver in the sense of a creator of law, whose will
+alone determines the boundaries of right and wrong. God is the creator
+of the beings who are the subjects of law. He is the author of law--the
+one lawgiver--in the same sense that he, who first discovered a plain
+figure, may be said to be the author of all theorems, which may be
+predicated of it. He who first called attention to the curious curve,
+made by a point in the periphery of a wheel as it turns on the ground,
+is in a certain sense the discoverer of all the truths, which may be
+mathematically demonstrated in respect to it.
+
+Law in its true sense is not the work of mere will--not an act of
+intellectual caprice. It is a severe and necessary deduction from the
+relations of things. The Divine legislator sees and knows these
+relations perfectly. He can draw no wrong deduction from them. He can
+make no mistake. Whatever laws have certainly emanated from Him are
+certainly right. This is the sense in which it is true that "there is
+one Lawgiver:" all others but attempt the work; He alone is competent to
+perform it. There is no mathematical certainty in our reasoning on moral
+as there is on physical relations. We know that the three angles of a
+triangle are equal to two right angles with an assurance we can never
+have in regard to any moral truth whatever. The Divine law is a
+deduction necessarily and mathematically certain as much so as any truth
+in geometry. Human law can aim only at such a probable deduction as
+results from a finite and imperfect knowledge.
+
+The system of law delivered by Moses to the Jews deserves, therefore,
+the most careful study at the hands of all who believe him to have been
+a divinely commissioned lawgiver. These laws were not intended for any
+other people than the Israelites; they were adapted to their
+circumstances, climate, country, neighbors, to the period of the world
+when they were promulgated, and during which they were to prevail. They
+were certainly not meant as a model for any other form of government,
+for any other people, or for any other time. Many laws are to be found
+there which are unnecessary and superfluous if applied elsewhere. Many
+actions, innocent in themselves, are prohibited. All the _mala
+prohibita_ are not _mala in se_. But one thing is as clear as a sunbeam,
+and that is a very important light to the student of Ethics; if God was
+the author of these laws, nothing morally wrong was commanded or
+allowed by them. When it was said of the Jews through the prophet, "I
+gave them statutes which were not good," it cannot mean not morally
+good; laws which it would be sinful in them to obey. The word in the
+original is not the word appropriated in that language to right,
+conformity to rule, but to goodness in its most general sense. Good
+statutes mean wise and expedient statutes. By no process can the logical
+mind be brought to the conclusion that the perfectly wise and good
+lawgiver, in framing a code of laws for any people, would impose as a
+punishment "for the hardness of their hearts," a penalty, submission to
+which would itself be punishable as a sin against the law of nature. He
+might command or allow as such punishment what in itself was inexpedient
+and injurious to them, and which upon the promulgation of a new law
+repealing the old and prohibiting what it allowed, would become by the
+sanction of the same lawgiver thenceforth universally _malum
+prohibitum_. The authority of God as a lawgiver is certainly not
+confined to a mere declaration of what is right or wrong by the law of
+Nature.
+
+There can be no merely arbitrary laws. It is necessary to bear in mind
+that we are now considering the province of the legislator, who ought to
+enact no law without an end. "Civil legislative power," says Rutherforth
+(B. II, c. vi, s. 10), "is not in the strict sense of the word an
+absolute power of restraining or altering the rights of the subjects: it
+is limited in its own nature to its proper objects, to those rights only
+in which the common good of the society or of its several parts requires
+some restraint or alteration. So that whenever we call the civil
+legislative power, either of society in general or of a particular
+legislative body within any society, an absolute legislative power, we
+can only mean that it has no external check upon it in fact; for all
+civil legislative power is in its own nature under an internal check of
+right: it is a power of restraining or altering the rights of the
+subjects for the purpose of advancing or securing the general good, and
+not of restraining or altering them for any purpose whatever, and much
+less for no purpose at all." There are, therefore, no arbitrary laws
+which fulfil the end of law. Doubtless the true objects of society and
+government may be mistaken by him who sets up to be law-maker, or if
+those objects are properly appreciated, the means for advancing them may
+be mistaken. It is not wonderful that in a matter which demands the
+highest wisdom, many should try and fail.
+
+It becomes important to inquire what are the true ends of society and
+government? Man is a gregarious animal--a social being. He may exist in
+solitude, but he cannot enjoy life: he cannot perfect his nature. Those
+who have watched and studied closely the habits of those irrational
+animals, who live in communities, as the ant, the bee, and the beaver,
+have observed not only a settled system and subordination, but the
+existence of some wonderful faculty, like articulate speech, by which
+communication takes place from one to another; a power essential to
+order. Man, the highest social animal in the scale of earthly being,
+has also the noblest faculty of communication.
+
+The final cause--the reason why man was made a social being--is that
+society was necessary to the perfection of his physical, intellectual,
+and moral powers, in order to give the fullest return to the labor of
+his hands and to secure the greatest advances in knowledge and wisdom.
+It is for no vain national power or glory, for no experimental
+abstraction, that governments are instituted among men. It is for man as
+an individual. It is to promote his development; and in that consists
+his true happiness. The proposition would be still more accurate were it
+said, society is constituted that men may be free--free to develop
+themselves--free to seek their own happiness, following their own
+instincts or conclusions. Without society--and government, which of
+course results from it--men would not be free. An individual in a state
+of isolation might defend himself from savage beasts, and more savage
+men, as long as his strength lasted, but when sickness or age came on,
+the product of the labor of his hands, accumulated by a wise foresight
+to meet such a contingency, would become the prey of the stronger. The
+comparatively weak-minded and ignorant would be constantly subject to
+the frauds of the more cunning.
+
+It is enough to look at the effects of the division of employments and
+the invention of labor-saving machinery, to recognize the invaluable
+results of society in the development of wealth and power. In a state of
+isolation a man's entire time and strength would be needed for the
+supply of his physical wants. As men advance in knowledge and wisdom the
+standard of their mere physical wants is elevated. They demand more
+spacious and comfortable dwellings, more delicate viands and finer
+clothing.
+
+   "Allow not nature more than nature needs,
+    Man's life is cheap as beasts'."
+
+It is not true that men would be morally better or happier, if their
+style of living were reduced to the greatest plainness consistent with
+bare comfort. Our taste in this respect, as for the fine arts, as it
+becomes more refined, becomes more susceptible of high enjoyment. When
+large fortunes are suddenly made by gambling, or what is equivalent
+thereto, then it is that baleful luxury is introduced--a style of living
+beyond the means of those who adopt it, and spreading through all
+classes. Taste, cultivated and enjoyed at the expense of morals,
+degrades and debases instead of purifying and elevating character. Men,
+who have accumulated wealth slowly by labor of mind or body, do not
+spend it extravagantly. If they use it liberally, that creates no envy
+in their poorer neighbor, no ruinous effort to equal what is recognized
+to be the due reward of industry and economy. The luxury, which
+corrupted and destroyed the republic of Rome, was the result of large
+fortunes suddenly acquired by the plunder of provinces, the conquests of
+unjust wars. The most fruitful source of it, in our own day, is what has
+been well termed _class legislation_--laws which either directly or
+indirectly are meant to favor particular classes of the community. They
+are supported by popular reasons and specious arguments, yet there is
+one test of the true character of such laws, an _experimentum crucis_,
+of which, in general, they cannot bear the application. Legislation,
+which requires or which will pay to be bored or bought, is unequal
+legislation; and therefore unwise and unjust. Bentham's rule, though
+false as the standard of right and wrong, is in general the true rule of
+practical legislation, the greatest good of the greatest number. It is
+expressed with the most force and accuracy by that master of the
+science, Bynkershoek; _Utilitas, utilitas, justi PROPE mater et aequi_:
+in which observe that the word _prope_ is emphatic. Legislation for
+classes violates this plain rule of equal justice, and moreover does
+not, in the long run, benefit those for whom it is intended. The
+indirect evils upon society at large are even more injurious than those
+which are direct. Men are often thus poor to-day and rich to-morrow. The
+bubble, while it dances in the sunbeam, glitters with golden hues,
+though destined almost immediately to burst and be seen no more.
+
+What government owes to society, and all it owes, is the impartial
+administration of equal and just laws. This produces security of life,
+of liberty, and of property. It has become a favorite maxim, that it is
+the duty of government to promote the happiness of the people. The
+phrase may be interpreted so as to mean well, but it is a very
+inaccurate and unhappy one. It is the inalienable right of men to pursue
+their _own_ happiness; each man under such restraints of law as will
+leave every other man equally free to do the same. The true and only
+true object of government is to secure this right. The happiness of the
+people is the happiness of the individuals who compose the mass.
+Speaking now with reference to those objects only, which human laws can
+reach and influence, he is the happy man, who sees his condition in life
+constantly and gradually, though it may be slowly, improving. Let
+government keep its hands off--do nothing in the way of creating the
+subject-matter of speculation--and things naturally fall into this
+channel. There will be some speculators, as there will be some gamblers;
+but they will be few. The stock market is filled with fancies, which the
+government has manufactured and continues to manufacture to order. It is
+the duty of government to encourage the accumulation of the savings of
+industry. The best way to do so is to guard the strong box from the
+invasion of others, and not itself to invade it. Property has an
+especial claim to protection against the government itself. The power of
+taxation in the legislature is in fact a part of the _eminent domain_; a
+power that must necessarily be reposed in the discretion of every
+government to furnish the means of its own existence. One grievous
+invasion of property--and of course ultimately of labor, from whose
+accumulations all property grows--is by government itself, in the shape
+of taxation for objects not necessary for the common defence and general
+welfare. Men have a right not only to be well governed, but to be
+cheaply governed--as cheaply as is consistent with the due maintenance
+of that security, for which society was formed and government
+instituted. This, the sole legitimate end and object of law, is never to
+be lost sight of--security to men in the free enjoyment and development
+of their capacities for happiness--SECURITY--nothing less--but nothing
+more. To compel men to contribute of the earnings or accumulations of
+industry, their own or inherited, to objects beyond this, not within the
+legitimate sphere of legislation, to appropriate the money in the public
+treasury to such objects, is a perversion and abuse of the powers of
+government, little if anything short of legalized robbery. What is the
+true province of legislation, ought to be better understood. It is worth
+while to remark, that in every new and amended State constitution, the
+bill of rights spreads over a larger space; new as well as more
+stringent restrictions are placed upon legislation. There is no danger
+of this being carried too far; as Chancellor Kent appears to have
+apprehended that it might be. There is not much danger of erring upon
+the side of too little law. The world is notoriously too much governed.
+Legislators almost invariably aim at accomplishing too much.
+Representative democracies, so far from being exempt from this vice, are
+from their nature peculiarly liable to it. Annual legislatures--with
+generally two-thirds new members every year--increase the evil. The
+members fall into the common mistake, that their commission is to act,
+not to decide in the first place whether action is necessary. They would
+be blamed and ridiculed, if they adjourned without doing something
+important. Hence the annual volumes of our Acts of Assembly are
+fearfully growing in bulk. It is not merely of the extent of local
+legislation, the vast multiplication of charters for every imaginable
+purpose, or of the constantly recurring tampering with the most general
+subjects of interest, finance, revenue, banking, education, pauperism,
+&c., that there is reason to complain; but scarce a session of one of
+our legislatures passes without rash and ill-considered alterations in
+the civil code, vitally affecting private rights and relations. Such
+laws are frequently urged by men, having causes pending, who dare not
+boldly ask that a law should be made for their particular case, but who
+do not hesitate to impose upon the legislature by plausible arguments
+the adoption of some general rule, which by a retrospective
+construction, will have the same operation. It is a most monstrous
+practice, which lawyers are bound by the true spirit of their oath of
+office, and by a comprehensive view of their duty to the Constitution
+and laws, which they bear so large a part as well in making as
+administering, to discountenance and prevent. It is to be feared, that
+sometimes it is the counsel of the party who recommends and carefully
+frames the bill, which, when enacted into a law, is legislatively to
+decide the cause. It is time that a resort to such a measure should be
+regarded in public estimation as a flagrant case of professional
+infidelity and misconduct.
+
+This brief sketch of the true province of legislation is enough to
+evince its vast importance. How great is the influence of the lawyers
+as a class upon legislation! Let any man look upon all that has been
+done in this department, and trace it to its sources. He will
+acknowledge that legislation, good or bad, springs from the Bar. There
+is in this country no class of lawyers confined to the mere business of
+the profession--no mere attorneys--no mere special pleaders--no mere
+solicitors in Chancery--no mere conveyancers. However more accurate and
+profound may be the learning of men, whose studies are thus limited to
+one particular branch, it is not to be regretted either on account of
+its influence on the science or the profession. The American lawyer,
+considering the compass of his varied duties, and the probable call
+which will be made on him especially to enter the halls of legislation,
+must be a Jurist. From the ranks of the Bar, more frequently than from
+any other profession, are men called to fill the highest public stations
+in the service of the country, at home and abroad. The American lawyer
+must thus extend his researches into all parts of the science, which has
+for its object human government and law: he must study it in its grand
+outlines as well as in the filling up of details. He is as frequently
+called upon to inquire what the law ought to be as what it is. While a
+broad and marked line separates, and always ought to separate the
+departments of Legislation and Jurisprudence, it is a benefit to both
+that the same class of men should be engaged in both. Practice will thus
+be liberalized by theory, and theory restrained and corrected by
+practice. The mere abstractionist or _doctrinaire_ would aim at the
+formation of a code of great simplicity: the practitioner sees in it the
+parent of uncertainty and injustice. Legal propositions cannot be framed
+with the certainty of mathematical theories. The most carefully studied
+language still leaves room for interpretation and construction. Time
+itself, which works such mighty changes in all things, produces a state
+of circumstances not in the mind of the lawgiver. The existing system,
+it may be, is an unwieldy, inconvenient structure, heavy and grotesque
+from the mixed character of its architecture outwardly, inwardly its
+space too much occupied and its inmates embarrassed by passages and
+circuities. The abstractionist would at once demolish it, and replace it
+by a light, commodious and airy dwelling, more symmetrical and chaste in
+its appearance, better fitted for the comfort and usefulness of its
+inhabitants. The practitioner, who has become familiar with it, who
+observes and admires that silent legislation of the people, which shows
+itself not on the pages of the statute book, and receives its
+recognition in courts of justice only after it has ceased to need even
+that to give it form and vitality, and who understands, therefore, how,
+with little inconvenience, it is made to accommodate itself to every
+change of condition, sits down to a careful calculation of the cost and
+risk of such wholesale change. History and practical experience, alike,
+suggest to him, that the structure is a castle as well as a dwelling, a
+place for security as well as comfort; that its foundations have been
+laid deeply on the solid rock--its masonry more firmly knit together by
+the time it has endured. Yet he will not deny that what can be done
+consistently with security ought to be done. It is worse than in vain to
+oppose all amendment. It will break down every artificial barrier that
+may be reared against it, if it be not quietly and wisely directed in
+those channels which it seeks at the least expense to security and
+stability. Surely it is not conceding too much to this spirit to admit,
+that laws should be composed in accurate but perspicuous language,
+without redundancy of words or involution of sentences; that the policy
+of public measures should not be wrapt up in the folds of State mystery;
+and that all legislation should be based upon the principle of leaving
+the greatest liberty of private judgment and action, consistent with
+public peace and private security. A blind attachment to principles of
+jurisprudence or rules of law because they are ancient, when the
+advancement of the useful arts, the new combinations of trade and
+business, and the influence of more rapid and general intercourse demand
+their repeal or modification, is as much to be deprecated as rash
+innovation and unceasing experiment. Indeed it scarcely ever fails to
+defeat its own end, and though it may retard for a while, renders the
+course of reform more destructive than it otherwise would have been.
+True conservatism is gradualism--the movement onward by slow, cautious,
+and firm steps--but still movement, and that onward. The world, neither
+physically, intellectually, nor morally, was made to stand still. As in
+her daily revolutions on her own axis as well as her annual orbit round
+the sun, she never returns precisely to the same point in space which
+she has ever before occupied, it would seem to be the lesson which the
+Great Author of all Being would most deeply impress upon mind as he has
+written it upon matter; "by ceaseless motion all that is subsists."
+
+What has thus been very cursorily presented will evince that it is the
+province of legislation, by slow and cautious steps, to amend the laws,
+to render them more equal in their operation upon all classes, not
+favoring the rich more than the poor, nor one class of either more than
+another, providing an easy, cheap, and expeditious administration of
+justice by tribunals, whose learning and impartiality shall be so
+secured as to possess the confidence of the community, and by general
+rules for the regulation of conduct and the distribution of estates most
+conformed to the analogies of that system, which is familiar to the
+people in their common law.
+
+Great as is the influence which the profession of the law can and does
+exercise upon the legislation of a country, the actual administration of
+law is entirely in their hands. To a large extent by private counsel, by
+the publication of works of research and learning, by arguments in
+courts of justice to assist those who are to determine what is the law,
+and to apply it to the facts, as well as in the actual exercise of
+judicature, this whole important province of government, which comes
+home so nearly to every man's fireside, is intrusted necessarily to
+lawyers.
+
+In this country we live under the protection of written constitutions;
+not only so, but written constitutions, which have assumed to place
+limits upon the power of majorities, acting at least through their
+ordinary representatives. The construction of these constitutions, or
+constitutional law as it is termed, forms a very important branch of
+American jurisprudence. There have been, and are, in other countries,
+charters, written or unwritten--organic or fundamental laws--but without
+this distinguishing feature. The fundamental laws, thus established in
+point of fact, emanate from the government, and have no sanction beyond
+the oath of those intrusted with the administration of them, the force
+of public opinion, and the responsibility of the representative to his
+constituent. Our constitutions emanate not from the government, but the
+State, the society, the creator of the government; and are, therefore,
+in the strictest sense of the words, _leges legum_. The radical
+principle of our system is, that the act of the legislative body, beyond
+or contrary to the power confided to it by the Constitution, is a
+nullity, and absolutely void. The courts must so pronounce, and the
+executive must execute their judgments with the whole force of the
+State. Upon such a subject it is best to use the very language--the
+_ipsissima verba_--of John Marshall, as, at the same time, expressing
+the doctrine with the greatest force and perspicuity, and presenting, in
+the mere statement, the most convincing argument of its importance. "It
+is emphatically the province and duty of the judicial department to say
+what the law is. Those who apply the rule to particular cases, must, of
+necessity, expound and interpret that rule. If two laws conflict with
+each other, the courts must decide on the operation of each. So if a law
+be in opposition to the Constitution; if both the law and the
+Constitution apply to a particular case, so that the court must either
+decide that case conformably to the law, disregarding the Constitution,
+or conformably to the Constitution, disregarding the law: the court must
+determine which of these conflicting rules governs the case. This is of
+the very essence of judicial duty. If, then, the courts are to regard
+the Constitution, and the Constitution is superior to any ordinary act
+of the legislature, the Constitution, and not such ordinary act, must
+govern the case to which they both apply. Those, then, who controvert
+the principle that the Constitution is to be considered in court as a
+paramount law, are reduced to the necessity of maintaining that courts
+must close their eyes on the Constitution and see only the law. This
+doctrine would subvert the very foundation of all written constitutions.
+It would declare that an act, which, according to the principles and
+theory of our government, is entirely void, is yet, in practice,
+completely obligatory. It would declare that, if the legislature shall
+do what is expressly forbidden, such act, notwithstanding the express
+prohibition, is, in reality, effectual. It would be giving to the
+legislature a practical and real omnipotence with the same breath which
+professes to restrict their powers within narrow limits. It is
+prescribing limits, and declaring that those limits may be passed at
+pleasure." (Marbury _v._ Madison, 1 Cranch, 177.) More weighty words
+than these have never, speaking of human things, fallen from the lips of
+man: weighty in themselves from their own simple but eloquent
+conclusiveness--weightier still from their unspeakable importance, the
+immeasurable influence they have had, and, it is to be hoped, will ever
+continue to have, upon the destinies of the United States of America.
+The judiciary department, though originating nothing, but acting only
+when invoked by parties in the prosecution of their rights, is thus
+necessarily an important political branch of the government. That
+department spreads the broad and impregnable shield of its protection
+over the life, limbs, liberty, and property of the citizen, when invaded
+even by the will of the majority. Our Bills of Rights are, therefore,
+not mere enunciations of abstract principles, but solemn enactments by
+the people themselves, guarded by a sufficient sanction. They have not,
+perhaps, as yet, carried far enough their provisions for the security of
+property from the unjust action of government. The obligation of
+contracts has been declared sacred; the right of eminent domain
+restricted by the provision for compensation. Yet, even as to contracts,
+the legislature may still exercise dangerous powers over the remedy,
+short of taking it away entirely, and over the rules of evidence. As to
+eminent domain, they possess an undefined right to determine the time
+and manner of ascertaining the compensation. Our constitutions are
+frequently undergoing revision; and too much care cannot be exercised to
+strengthen our securities in this quarter. Personal liberty, trial by
+jury, the elective and other political franchises, liberty of
+conscience, of speech and of the press, are able to protect themselves
+in a great measure from their own democratic affinities. It is true,
+that there really is no difference between wresting from a man the few
+dollars, the products or savings of his industry for any period of time,
+and depriving him of his liberty, or chaining him to a log, to work for
+another during the same period. Property eminently stands in need of
+every parchment barrier, which has been or can be thrown around it. An
+eminent Judge in our own State once threw out the opinion that there
+existed in the Constitution no disaffirmance of the power of the
+legislature to take the property of an individual for _private uses_
+with or without compensation. "The clause," he argued, "by which it is
+declared that no man's property shall be taken or applied to _public_
+use, without compensation made, is a disabling, not an enabling one, and
+the right would have existed in full force without it." (Harvey _v._
+Thomas, 10 Watts, 63.) Fortunately, the decision of the court in that
+case did not require a resort to that reasoning, and but little
+examination was sufficient to satisfy the mind that this _obiter dictum_
+was unsustained by either principle or authority. A power in the
+legislature to take the property of A. and give it to B. directly, would
+be of the very essence of despotism. When it is declared in the Bill of
+Rights that no man shall be deprived of his life, liberty, or property,
+unless by the judgment of his peers, or the law of the land, this
+phrase, "law of the land," does not mean merely an act of the
+legislature. If it did, every restriction upon the legislative
+department would be practically abrogated. By an authority as old as
+Lord Coke, in commenting upon these same words in _Magna Charta_, they
+are to be rendered "without due process of law: that is, by indictment
+or presentment of good and lawful men, when such deeds be done in due
+manner, or by writ original of the common law, without being brought
+into answer but by due process of the common law." (2 Inst. 50.) The
+American laws are numerous and uniform to the point (see 1 American Law
+Mag. 315); and the same eminent Judge, to whom reference has been made
+in a later case, declared his adhesion to the sound and true doctrine in
+the most emphatic language, without noticing his own previous _dictum_
+to the contrary. "It was deemed necessary," said he, "to insert a
+special provision in the Constitution to enable them (the legislature)
+to take private property even for public use, and on compensation made;
+but it was not deemed necessary to disable them specially in regard to
+taking the property of an individual, with or without compensation, in
+order to give it to another, not only because the general provision in
+the Bill of Rights was deemed sufficiently explicit for that, but
+because it was expected that no legislature would be so regardless of
+right as to attempt it. Were this reasonable expectation to be
+disappointed, it would become our plain and imperative duty to obey the
+immediate and paramount will of the people, expressed by their voices in
+the adoption of the Constitution, rather than the repugnant will of
+their delegates acting under a restricted but transcended authority."
+(Norman _v._ Heist, 5 W. & S. 171.)
+
+Yet, while the right of private property cannot be thus directly
+invaded, its security against the acts of the legislature is not as
+perfect as it might and ought to be made. The legislature must be
+allowed a large discretion in judging what is a public use: on that
+pretext much may be brought within its sweep unjustly, and the courts,
+in the absence of a constitutional rule, would be embarrassed in
+defining its limits. Experience has shown that much power to do wrong
+lurks under grants by no means essential to the public good. Besides
+what has been before referred to, the assumption of judicial functions
+by the Legislature and the broad field of Chancery jurisdiction over
+trust estates, which it has been held that they may exercise
+immediately, if they see fit, instead of vesting them in appropriate
+tribunals, are fraught with serious danger. The proneness of bodies so
+constituted to disembarrass themselves of the ordinary rules of
+evidence, to act upon _ex parte_ statements and testimony imperfectly
+authenticated, as well as the absence of all legal forms from their
+proceedings, and their numbers, among whom the responsibility of giving
+due attention to the case is divided, add to the peril. The power of
+legislating retrospectively has far too wide a scope; the constitutional
+inhibition of _ex post facto_ laws having been construed to apply to
+criminal or penal cases merely, restraining the legislature from making
+that an offence which was not so at the time of its commission, or
+increasing the punishment annexed to it. The course of legislation in
+this country amply demonstrates the wisdom, and even necessity, of
+extending the same prohibition to civil cases. There is no particular
+or partial inconvenience, which could outweigh the general benefits of a
+provision that no law, public or private, should operate retrospectively
+upon past acts; that the judgment of the tribunals upon every case
+should be according to the law as it was at the time of the transaction,
+which the parties were bound to know, and in accordance with which they
+are to be presumed to have acted.
+
+As well in the domain of public as of private law, the great fundamental
+principle for judge and counsellor ought to be, THAT AUTHORITY IS
+SACRED. There is no inconvenience so great, no private hardship so
+imperative, as to justify the application of a different rule to the
+resolution of a case, than the existing state of the law will warrant.
+"There is not a line from his pen," says Mr. Binney of Chief Justice
+Tilghman, "that trifles with the sacred deposit in his hands by claiming
+to fashion it according to a private opinion of what it ought to be.
+Judicial legislation he abhorred, I should rather say, _dreaded_, as an
+implication of his conscience. His first inquiry in every case was of
+the oracles of the law for their response; and when he obtained it,
+notwithstanding his clear perception of the justice of the cause, and
+his intense desire to reach it, if it was not the justice of the law, he
+dared not to administer it. He acted upon the sentiment of Lord Bacon,
+that it is the foulest injustice to remove landmarks, and that to
+corrupt the law is to poison the very fountains of justice. With a
+consciousness that to the errors of the science there are some limits,
+but none to the evils of a licentious invasion of it, he left it to our
+annual legislature to correct such defects in the system as time either
+created or exposed; and better foundation in the law can no man lay." It
+is not to be denied that there is some difficulty in stating with
+accuracy the limits of the rule _stare decisis_. One, or even more than
+one, recent precedent, especially when it relates to the application
+rather than to the establishment of a rule, is not of so binding a
+character that it must be followed, even though contrary to principles
+adjudged in older cases: but it is just as clear that when a decision
+has been long acquiesced in, when it has been applied in numerous cases,
+and become a landmark in the branch of the science to which it relates,
+when men have dealt and made contracts on the faith of it, whether it
+relates to the right of property itself, or to the evidence by which
+that right may be substantiated, though it may appear to us "flatly
+absurd and unjust," to overrule such a decision is an act of positive
+injustice, as well as a violation of law, and an usurpation by one
+branch of the government upon the powers of another. An example will
+illustrate this position. In the case of Walton _v._ Shelley (1 Term
+Rep. 296), in 1786, the King's Bench, Lord Mansfield, Chief Justice,
+decided that a person is not a competent witness to impeach a security
+which he has given, though he is not interested in the event of the
+suit, on the trial of which he is offered. In Jordaine _v._ Lashbrooke
+(7 Term Rep. 601), the same court, in 1798, under the presidency of Lord
+Kenyon, rightly overruled that decision. Now it so happens that Walton
+_v._ Shelley was recognized as authority and followed in Pennsylvania,
+in 1792, in Stille _v._ Lynch (2 Dall. 194), before it had been
+overruled in England: and though limited as it was understood to be in
+Bent _v._ Baker (3 Term Rep. 34), to negotiable paper (Pleasants _v._
+Pemberton, 2 Dall. 196), it has never been varied from since that time,
+though it has frequently been admitted that Walton _v._ Shelley was
+properly overruled. It ought not now to be overruled in Pennsylvania.
+"After the decisions cited," says Judge Rogers, in Gest _v._ Espy (2
+Watts, 268), "this cannot be considered an open question, nor do we
+think ourselves at liberty now to examine the foundations of the rule."
+Unfortunately our Supreme Court have not always put this sound and wise
+limitation upon their own power. In the case of Post _v._ Avery (5 W. &
+S. 509), they declared in regard to a rule of more than thirty years'
+standing, and confirmed by numerous cases, that they had "vainly hoped
+that the inconvenience of the rule would have attracted the attention of
+the legislature, _who alone are competent to abolish it_;" but as
+nothing was to be expected from that quarter, "they were driven by
+stress of necessity" to overrule a case expressly decided on the
+authority of the rule. (Hart _v._ Heilner, 3 Rawle, 407.) And two years
+afterwards, after having made the remarkable declaration that the
+legislature alone was competent to abolish the rule, they nevertheless
+pronounced it "exploded altogether." (McClelland _v._ Mahon, 1 Barr,
+364.)
+
+Lord Bacon says of retrospective laws: "_Cujus generis leges raro et
+magna cum cautione sunt adhibenda: neque enim placet Janus in legibus._"
+Without any saving clause may the epithet and denunciation be applied to
+judicial laws. They are always _retrospective_, but worse on many
+accounts than _retrospective statutes_. Against the latter we have at
+least the security of the constitutional provision that prohibits the
+passage of any law, which impairs the obligation of a contract,
+executory or executed; and it has been well held that this prohibition
+applies to such an alteration of the law of evidence in force at the
+time the contract was made, as would practically destroy the contract
+itself by destroying the only means of enforcing it. There is no such
+constitutional provision against judicial legislation. It sweeps away a
+man's rights, vested, as he had reason to think, upon the firmest
+foundation, without affording him the shadow of redress. Nor could
+there, in the nature of things, be any such devised. When a court
+overrules a previous decision, it does not simply repeal it; it must
+pronounce it never to have been law. There is no instance on record, in
+which a court has instituted the inquiry, upon what grounds the suitor
+had relied in investing his property or making his contract, and
+relieved him from the disastrous consequences, not of his, but of their
+mistake, or the mistake of their predecessors. The man who, on the faith
+of Steele _v._ The Ph[oe]nix Ins. Co. (3 Binn. 306), decided in 1811,
+and treated as so well settled in itself and all its logical
+consequences, that in 1832 (Hart _v._ Heilner, 3 Rawle, 407) the Supreme
+Court, declined to hear the counsel, who relied on its authority,
+invested his money in the purchase of a claim which could be proved only
+by the testimony of the assignor, found himself stripped of his property
+by a decision in 1845, the results of which were broader than even the
+legislature itself would have been competent to effect, or indeed the
+people themselves in their sovereign capacity, at least so long as the
+Constitution of the United States continues to be "the supreme law of
+the land, anything in the _constitution_ and laws of any State to the
+contrary notwithstanding."
+
+But judicial is much worse than legislative retrospection in another
+aspect. The act of Assembly, if carefully worded, is at least a certain
+rule. The act of the judicial legislature is invariably the precursor of
+uncertainty and confusion. Apply to it a test, which may be set down as
+unerring, never failing soon to discover the true metal from the base
+counterfeit: its effect upon litigation. A decision in conformity to
+established precedents is the mother of repose on that subject; but one
+that departs from them throws the professional mind at sea without
+chart or compass. The cautious counsellor will be compelled to say to
+his client that he cannot advise. One cause is the general uncertainty
+to which it leads. Men will persuade themselves easily, when it is their
+interest to be persuaded, that if one well-established rule has been
+overthrown, another, believed to be quite as wrong and perhaps not so
+well fortified by time and subsequent cases, may share the same fate.
+Shall counsel risk advising his client not to prosecute his claim or
+defence, when another bolder than he, may moot the point and conduct
+another cause resting upon the same question to a successful
+termination? The very foundations of confidence and security are shaken.
+The law becomes a lottery, in which every man feels disposed to try his
+chance. Another cause of this uncertainty is more particular. A court
+scarcely ever makes an open and direct overthrow of a deeply founded
+rule at one stroke. It requires repeated blows. It can be seen to be in
+danger, but not whether it is finally to fall. Hence it frequently
+happens that there is a sliding scale of cases; and when the final
+overthrow comes, it is very difficult to determine, whether any and
+which steps of the process remain. Shortly after the decision in Post
+_v._ Avery, the case of Fraley _v._ Bispham was tried in one of the
+inferior courts; in which the Judge, thinking that Post _v._ Avery,
+however the intention may have been disclaimed, did in fact overrule
+Steele _v._ The Ph[oe]nix, rejected as incompetent one of the nominal
+plaintiffs, a retiring partner, who upon dissolution had sold out for a
+price _bona fide_ paid, all his interest in the firm to his copartners,
+who continued the business. A motion was made for a new trial, and
+before the rule came on to be heard, Patterson _v._ Reed (7 W. & S. 144)
+had appeared, and the court, on the authority of that case, which
+decided that an assignment must be colorable and made for the purpose of
+rendering the assignor a witness in order to exclude him, ordered a new
+trial. Before the case was again called for trial, the first volume of
+Barr's Reports had been published, in which the Supreme Court said:
+"The time is come, when the doctrine of Steele _v._ The Ph[oe]nix Ins.
+Co. must be exploded altogether. The essential interests of justice
+demand that the decision in that case be no longer a precedent for
+anything whatever." (McClelland _v._ Mahon, 1 Barr, 364.) And the Judge
+before whom the cause was then tried had no other course left, but again
+to reject the witness, the very same thing on account of which a new
+trial had been ordered.
+
+The case of Post _v._ Avery is a most striking illustration of judicial
+legislation and its mischievous results. It is usual to hear it excused
+on account of the unequal and unjust operation of the rule reversed, by
+which one party was heard but not the other, and the temptation it held
+out for the manufacture of false claims, to be supported by perjury. But
+it is to lose sight of the real question involved to raise such an
+issue: for, like the execution of a notorious culprit by the expeditious
+process of a mob and a lamp-post, instead of the formalities and delays
+of law and courts, it may be a very good thing for the community to
+have rid itself of the offender, but the way by which it was
+accomplished was a heavy blow at the very root of the tree of public and
+private security.
+
+There is another decision of the Supreme Court of Pennsylvania, not so
+bold and avowed an act of judicial legislation as that just mentioned,
+but not less transparent, which may be cited as strongly illustrating
+the same consequences of uncertainty and litigation flowing from a
+disregard of the principle adverted to. From the year 1794, there had
+existed in Pennsylvania an act of Assembly limiting the lien of the
+debts of a decedent on his real estate, at first to seven, afterwards to
+five years. No question ever arose before the court in regard to it.
+Lien was considered to mean lien and not obligation: lands to be subject
+to execution for all debts of the owner prosecuted to judgment, and of
+course not barred by the Statute of Limitations; and the limitation of
+the lien merely intended for the protection of purchasers from the heirs
+or devisees or their lien creditors. Such was recognized to be the true
+meaning of the law in 1795 (Hannum _v._ Spear, 1 Yeats, 566), and so
+distinctly ruled in 1830 (Bruch _v._ Lantz, 2 Rawle, 392); yet on
+grounds palpably only relevant to what, in the opinion of the court, the
+law ought to be, it was held in 1832, in Kerper _v._ Hoch (1 Watts, 9),
+that the period named was a limitation not of the lien but of the debt
+itself, and available in favor of heirs and devisees, volunteers under
+the debtor and succeeding to his rights _cum onere_. As we have seen,
+but two cases are to be produced of litigation arising out of this law
+carried to the highest tribunal from 1794 to 1832. More than twenty
+cases are to be found reported since, in which that court has been
+called upon to draw distinctions and settle the precise extent of their
+own law. Thus a little complicated system has grown up on this
+construction of the act. A volume, indeed, might be written on Kerper
+_v._ Hoch and its satellites, when if the act had been let alone to
+speak for itself, and the prior decision followed, it would have been a
+simple and intelligible rule of action, until the legislature saw fit
+to alter it. It seems that this consideration pressed upon at least one
+of the judges, who joined in that decision; for in a subsequent case,
+when Kerper _v._ Hoch was cited, that Judge, with characteristic candor,
+interrupted the counsel with the remark: "We will abide by the rule, but
+it was erroneously decided." (Hocker's Appeal, 4 Barr, 498.)
+
+This, then, is the legitimate province of Jurisprudence, _Stare super
+antiquas vias_, to maintain the ancient landmarks, to respect authority,
+to guard the integrity of the law as a science, that it may be a certain
+rule of decision, and promote that security of life, liberty, and
+property, which, as we have seen, is the great end of human society and
+government. Thus industry will receive its best encouragement; thus
+enterprise will be most surely stimulated; thus constant additions to
+capital by savings will be promoted; thus the living will be content in
+the feeling that their earnings are safely invested; and the dying be
+consoled with the reflection that the widow and orphan are left under
+the care and protection of a government, which administers impartial
+justice according to established laws.
+
+With jurisprudence, lawyers have the most, nay all, to do. The opinion
+of the Bar will make itself heard and respected on the Bench. With sound
+views, their influence for good in this respect may well be said to be
+incalculable. It is indeed the noblest faculty of the profession to
+counsel the ignorant, defend the weak and oppressed, and to stand forth
+on all occasions as the bulwark of private rights against the assaults
+of power, even under the guise of law; but it has still other functions.
+It is its office to diffuse sound principles among the people, that they
+may intelligently exercise the controlling power placed in their hands,
+in the choice of their representatives in the Legislature and of Judges,
+in deciding, as they are often called upon to do, upon the most
+important changes in the Constitution, and above all in the formation of
+that public opinion which may be said in these times, almost without a
+figure, to be _ultimate sovereign_. Whether they seek them or are
+sought, lawyers, in point of fact, always have filled, in much the
+larger proportion over every other profession, the most important public
+posts. They will continue to do so, at least so long as the profession
+holds the high and well-merited place it now does in the public
+confidence.
+
+
+
+
+PROFESSIONAL ETHICS.
+
+
+There is, perhaps, no profession, after that of the sacred ministry, in
+which a high-toned morality is more imperatively necessary than that of
+the law. There is certainly, without any exception, no profession in
+which so many temptations beset the path to swerve from the line of
+strict integrity; in which so many delicate and difficult questions of
+duty are continually arising. There are pitfalls and man-traps at every
+step, and the mere youth, at the very outset of his career, needs often
+the prudence and self-denial, as well as the moral courage, which belong
+commonly to riper years. High moral principle is his only safe guide;
+the only torch to light his way amidst darkness and obstruction. It is
+like the spear of the guardian angel of Paradise:
+
+              No falsehood can endure
+    Touch of celestial temper, but returns
+    Of force to its own likeness.
+
+The object of this Essay is to arrive at some accurate and intelligible
+rules by which to guide and govern the conduct of professional life. It
+would not be a difficult task to declaim in general propositions--to
+erect a perfect standard and leave the practitioner to make his own
+application to particular cases. It is a difficult task, however, as it
+always is in practice, to determine the precise extent of a principle,
+so as to know when it is encountered and overcome by another--to weigh
+the respective force of duties which appear to come in conflict. In all
+the walks of life men have frequently to do this: in none so often as at
+the Bar.
+
+The responsibilities, legal and moral, of the lawyer, arise from his
+relations to the court, to his professional brethren and to his client.
+It is in this order that it is proposed to consider and discuss the
+various topics which grow out of this subject.
+
+The oath directed by law in this State to be administered upon the
+admission of an attorney to the bar, "to behave himself in the office of
+attorney according to the best of his learning and ability, and with all
+good fidelity, as well to the court as to the client; that he will use
+no falsehood, nor delay any man's cause for lucre or malice," presents a
+comprehensive summary of his duties as a practitioner.[1]
+
+Fidelity to the court, fidelity to the client, fidelity to the claims of
+truth and honor: these are the matters comprised in the oath of office.
+
+It is an oath of office, and the practitioner, the incumbent of an
+office--an office in the administration of justice[2]--held by authority
+from those who represent in her tribunals the majesty of the
+commonwealth, a majesty truly more august than that of kings or
+emperors. It is an office, too, clothed with many privileges--privileges,
+some of which are conceded to no other class or profession.[3] It is,
+therefore, that the legislature have seen fit to require that there
+should be added to the solemnity of the responsibility, which every man
+virtually incurs when he enters upon the practice of his profession,
+the higher and more impressive sanction of an appeal to the Searcher of
+all Hearts.
+
+Fidelity to the court, requires outward respect in words and actions.
+The oath as it has been said, undoubtedly looks to nothing like
+allegiance to the person of the judge; unless in those cases where his
+person is so inseparable from his office, that an insult to the one, is
+an indignity to the other. In matters collateral to official duty, the
+judge is on a level with the members of the bar, as he is with his
+fellow-citizens; his title to distinction and respect resting on no
+other foundation, than his virtues and qualities as a man.[4] There are
+occasions, no doubt, when duty to the interests confided to the charge
+of the advocate demands firm and decided opposition to the views
+expressed or the course pursued by the court, nay, even manly and open
+remonstrance; but this duty may be faithfully performed, and yet that
+outward respect be preserved, which is here inculcated. Counsel should
+ever remember how necessary it is for the dignified and honorable
+administration of justice, upon which the dignity and honor of their
+profession entirely depend, that the courts and the members of the
+courts, should be regarded with respect by the suitors and people; that
+on all occasions of difficulty or danger to that department of
+government, they should have the good opinion and confidence of the
+public on their side. Good men of all parties prefer to live in a
+country, in which justice according to law is impartially administered.
+Counsel should bear in mind also the wearisomeness of a judge's office;
+how much he sees and hears in the course of a long session, to try his
+temper and patience. Lord Campbell has remarked that it is rather
+difficult for a judge altogether to escape the imputation of discourtesy
+if he properly values the public time; for one of his duties is to
+"render it disagreeable to counsel to talk nonsense." Respectful
+submission, nay, most frequently, even cheerful acquiescence in a
+decision, when, as is most generally the case, no good result to his
+cause can grow from any other course, is the part of true wisdom as well
+as civility. An exception may be noted to the opinion of the Bench, as
+easily in an agreeable and polite, as in a contemptuous and insulting
+manner. The excitement of the trial of a cause caused by the conflict of
+testimony, making often the probabilities of success to vibrate
+backwards and forwards with as much apparent uncertainty as the chances
+in a game of hazard, is no doubt often the reason and apology for
+apparent disrespect in manner and language; but let it be observed, that
+petulance in conflicts with the Bench, which renders the trial of causes
+disagreeable to all concerned, has most generally an injurious effect
+upon the interests of clients.
+
+Indeed, it is highly important that the temper of an advocate should be
+always equal. He should most carefully aim to repress everything like
+excitability or irritability. When passion is allowed to prevail, the
+judgment is dethroned. Words are spoken, or things done, which the
+parties afterwards wish could be unsaid or undone. Equanimity and
+self-possession are qualities of unspeakable value. An anecdote may
+serve to illustrate this remark. There was a gentleman of the Bar of
+Philadelphia, many years ago, who possessed these qualities in a very
+remarkable degree. He allowed nothing that occurred in a cause to
+disturb or surprise him. On an occasion in one of the neighboring
+counties, the circuit of which it was his custom to ride, he was trying
+a cause on a bond, when a witness for defendant was introduced, who
+testified that the defendant had taken the amount of the bond, which was
+quite a large sum, from his residence to that of the obligee, a distance
+of several miles, and paid him in silver in his presence. The evidence
+was totally unexpected; his clients were orphan children; all their
+fortune was staked on this case. The witness had not yet committed
+himself as to how the money was carried. Without any discomposure--without
+lifting his eyes or pen from paper--he made on the margin of his notes
+of trial a calculation of what that amount in silver would weigh; and
+when it came his turn to cross-examine, calmly proceeded to make the
+witness repeat his testimony step by step,--when, where, how, and how
+far the money was carried--and then asked him if he knew how much that
+sum of money weighed, and upon naming the amount, so confounded the
+witness, party, and counsel engaged for the defendant, that the defence
+was at once abandoned, and a verdict for the plaintiff rendered on the
+spot.[5]
+
+Another plain duty of counsel is to present every thing in the cause to
+the court openly in the course of the public discharge of its duties. It
+is not often, indeed, that gentlemen of the Bar so far forget themselves
+as to attempt to exert privately an influence upon the judge, to seek
+private interviews, or take occasional opportunities of accidental or
+social meetings to make _ex parte_ statements, or to endeavor to impress
+their views. They know that such conduct is wrong in itself, and has a
+tendency to impair confidence in the administration of justice, which
+ought not only to be pure but unsuspected. A judge will do right to
+avoid social intercourse with those who obtrude such unwelcome matters
+upon his moments of relaxation. There is one thing, however, of which
+gentlemen of the Bar are not sufficiently careful,--to discourage and
+prohibit their clients from pursuing a similar course. The position of
+the judge in relation to a cause under such circumstances is very
+embarrassing, especially, as is often the case, if he hears a good deal
+about the matter before he discovers the nature of the business and
+object of the call upon him. Often the main purpose of such visits is
+not so much to plead the cause, as to show the judge who the party
+is--an acquaintance, perhaps--and thus, at least, to interest his
+feelings. Counsel should set their faces against all undue influences of
+the sort; they are unfaithful to the court, if they allow any improper
+means of the kind to be resorted to. _Judicem nec de obtinendo jure
+orari oportet nec de injuria exorari._ It may be in place to remark here
+that the counsel in a cause ought to avoid all unnecessary communication
+with the jurors before or during any trial in which he may be
+concerned. He should enforce the same duty upon his client. Any attempt
+by an attorney to influence a juror by arguments or otherwise, will, of
+course, if discovered and brought to the notice of the court, lead to
+expulsion or suspension from the Bar, according to the degree and
+quality of the offence. The freedom of the jury-box from extraneous
+influences is a matter of such vital moment in our system that the
+courts are bound to watch over it with jealous eyes. "It would be an
+injury to the administration of justice," says C. J. Tilghman, "not to
+declare that it is gross misbehavior for any person to speak with a
+juror, or for a juror to permit any person to speak with him, respecting
+the cause he is trying, at any time after he is summoned and before the
+verdict is delivered." "The words thus uttered," says Judge Hare, "by
+one of the best men and purest magistrates that ever filled the judicial
+office, must find an echo in every bosom. The principle which dictated
+them does not require the aid of argument or elucidation; it is native
+to the conscience, and will be apparent to all who consult the monitor
+in their own breast. The wrong is aggravated when the taint of personal
+interest mingles with it, as when committed by a party to the cause, but
+appears in the worst form when it is the act of attorneys or counsel,
+who are the sworn officers of the court, whose duty it is to act as
+guardians of the fountains of justice, and who are false to their charge
+when they defile or taint those waters, which they are pledged to keep
+pure and unpolluted. Such conduct in counsel is a gross breach of trust,
+for which a removal from the trust is but an inadequate punishment."[6]
+
+There is another duty to the court, and that is, to support and maintain
+it in its proper province wherever it comes in conflict with the
+co-ordinate tribunal--the jury. The limits of these two provinces are
+settled with great accuracy; and even if a judge makes a mistake, the
+only proper place to correct his error is in the superior tribunal,--the
+Court of Errors. It has been held in a multitude of cases, that verdicts
+against the charge of the court in point of law, will be set aside
+without limitation as to the number of times, and that without regard to
+the question whether the direction of the court in point of law was
+right or wrong. There is a technical reason, which makes this course in
+all cases imperative. The losing party, if the jury were allowed to
+decide the law for him, would be deprived of his exception, and of his
+unquestionable right to have the law of his case pronounced upon by the
+Supreme Court. _Ad questiones juris respondeant judices,--ad questiones
+facti juratores._ A disregard by the jury of the law, as laid down by
+the judge, is always therefore followed by additional and unnecessary
+delay and expense, and it is never an advantage to a party in the long
+run to obtain a verdict in opposition to the direction of the court.[7]
+It is best for counsel to say in such cases, where nothing is left by
+the charge to the jury, that they do not ask for a verdict. It has a
+fair, candid, and manly aspect towards court, jury, opposite party, and
+even client. Instances of counsel urging or endeavoring to persuade a
+jury to disregard the charge may sometimes occur, but they are
+exceedingly rare when there is good feeling between the Bench and the
+Bar, and when the members of the profession have just and enlightened
+views of their duty as well as interest.
+
+It need hardly be added that a practitioner ought to be particularly
+cautious, in all his dealings with the court, to use no deceit,
+imposition, or evasion--to make no statements of facts which he does not
+know or believe to be true--to distinguish carefully what lies in his
+own knowledge from what he has merely derived from his instructions--to
+present no paper-books intentionally garbled. "Sir Matthew Hale
+abhorred," says his biographer, "those too common faults of
+misrepresenting evidence, quoting precedents or books falsely, or
+asserting anything confidently by which ignorant juries and weak judges
+are too often wrought upon."[8] One such false step in a young lawyer
+will do him an injury in the opinion of the Bench and of his
+professional brethren, which it will take years to redeem, if indeed it
+ever can be entirely redeemed.
+
+A very great part of a man's comfort, as well as of his success at the
+Bar, depends upon his relations with his professional brethren. With
+them he is in daily necessary intercourse, and he must have their
+respect and confidence, if he wishes to sail along in smooth waters. He
+cannot be too particular in keeping faithfully and liberally every
+promise or engagement he may make to them. One whose perfect
+truthfulness is even suspected by his brethren at the Bar has always an
+uneasy time of it. He will be constantly mortified by observing
+precautions taken with him which are not used with others. It is not
+only morally wrong but dangerous to mislead an opponent, or put him on
+a wrong scent in regard to the case. It would be going too far to say
+that it is ever advisable to expose the weakness of a client's cause to
+an adversary, who may be unscrupulous in taking advantage of it; but it
+may be safely said, that he who sits down deliberately to plot a
+surprise upon his opponent, and which he knows can succeed only by its
+being a surprise, deserves to fall, and in all probability will fall,
+into the trap which his own hands have laid. "Whoso diggeth a pit," says
+the wise man, "shall fall therein, and he that rolleth a stone, it will
+return upon him." If he should succeed, he will have gained with his
+success not the admiration and esteem, but the distrust and dislike of
+one of his associates as long as he lives. He should never unnecessarily
+have a personal difficulty with a professional brother. He should
+neither give nor provoke insult. Nowhere more than at the Bar is that
+advice valuable:
+
+                               "Beware
+    Of entrance to a quarrel; but being in,
+    Bear it that the opposed may beware of thee."
+
+There is one more caution to be given under this head. Let him shun most
+carefully the reputation of a sharp practitioner. Let him be liberal to
+the slips and oversights of his opponent wherever he can do so, and in
+plain cases not shelter himself behind the instructions of his client.
+The client has no right to require him to be illiberal--and he should
+throw up his brief sooner than do what revolts against his own sense of
+what is demanded by honor and propriety.
+
+Nothing is more certain than that the practitioner will find, in the
+long run, the good opinion of his professional brethren of more
+importance than that of what is commonly called the public. The
+foundations of the reputation of every truly great lawyer will be
+discovered to have been laid here. Sooner or later, the real public--the
+business men of the community, who have important lawsuits, and are
+valuable clients--indorse the estimate of a man entertained by his
+associates of the Bar, unless indeed there be some glaring defect of
+popular qualities. The community know that they are better qualified to
+judge of legal attainments, that they have the best opportunity of
+judging, and that they are slow in forming a judgment. The good opinion
+and confidence of the members of the same profession, like the King's
+name on the field of battle, is "a tower of strength;" it is the title
+of legitimacy. The ambition to please the people, to captivate jurors,
+spectators, and loungers about the court room, may mislead a young man
+into pertness, flippancy, and impudence, things which often pass current
+for eloquence and ability with the masses; but the ambition to please
+the Bar can never mislead him. Their good graces are only to be gained
+by real learning, by the strictest integrity and honor, by a courteous
+demeanor, and by attention, accuracy and punctuality in the transaction
+of business.
+
+The topic of fidelity to the client involves the most difficult
+questions in the consideration of the duty of a lawyer.
+
+He is legally responsible to his client only for the want of ordinary
+care and ordinary skill. That constitutes gross negligence. It is
+extremely difficult to fix upon any rule which shall define what is
+negligence in a given case. The habits and practice of men are widely
+different in this regard. It has been laid down that if the ordinary and
+average degree of diligence and skill could be determined, it would
+furnish the true rule.[9] Though such be the extent of legal liability,
+that of moral responsibility is wider. Entire devotion to the interest
+of the client, warm zeal in the maintenance and defence of his rights,
+and the exertion of his utmost learning and ability,--these are the
+higher points, which can only satisfy the truly conscientious
+practitioner.
+
+But what are the limits of his duty when the legal demands or interests
+of his client conflict with his own sense of what is just and right?
+This is a problem by no means of easy solution.
+
+That lawyers are as often the ministers of injustice as of justice is
+the common accusation in the mouth of gainsayers against the profession.
+It is said there must be a right and a wrong side to every lawsuit. In
+the majority of cases it must be apparent to the advocate, on which side
+is the justice of the cause; yet he will maintain, and often with the
+appearance of warmth and earnestness, that side which he must know to be
+unjust, and the success of which will be a wrong to the opposite party.
+Is he not then a participator in the injustice?
+
+It may be answered in general:--
+
+Every case is to be decided by the tribunal before which it is brought
+for adjudication upon the evidence, and upon the principles of law
+applicable to the facts as they appear upon the evidence. No court or
+jury are invested with any arbitrary discretion to determine a cause
+according to their mere notions of justice. Such a discretion vested in
+any body of men would constitute the most appalling of despotisms. Law,
+and justice according to law--this is the only secure principle upon
+which the controversies of men can be decided. It is better on the whole
+that a few particular cases of hardship and injustice, arising from
+defect of evidence or the unbending character of some strict rule of
+law, should be endured, than that general insecurity should pervade the
+community from the arbitrary discretion of the judge. It is this which
+has blighted the countries of the East as much as cruel laws or despotic
+executives. Thus the legislature has seen fit in certain cases to assign
+a limit to the period within which actions shall be brought; in order to
+urge men to vigilance, and to prevent stale claims from being suddenly
+revived against men whose vouchers are destroyed or whose witnesses are
+dead. It is true, _in foro conscientiae_, a defendant, who knows that he
+honestly owes the debt sued for and that the delay has been caused by
+indulgence or confidence on the part of his creditor, ought not to plead
+the statute. But if he does plead it, the judgment of the court must be
+in his favor.
+
+Now the lawyer is not merely the agent of the party; he is an officer of
+the court. The party has a right to have his case decided upon the law
+and the evidence, and to have every view presented to the minds of his
+judges, which can legitimately bear upon that question. This is the
+office which the advocate performs. He is not morally responsible for
+the act of the party in maintaining an unjust cause, nor for the error
+of the court, if they fall into error, in deciding it in his favor. The
+court or jury ought certainly to hear and weigh both sides; and the
+office of the counsel is to assist them by doing that, which the client
+in person, from want of learning, experience, and address, is unable to
+do in a proper manner. The lawyer, who refuses his professional
+assistance because in his judgment the case is unjust and indefensible,
+usurps the functions of both judge and jury.
+
+As an answer to any sweeping objection made to the profession in
+general, the view thus presented may be quite satisfactory. It by no
+means follows, however, as a principle of private action for the
+advocate, that all causes are to be taken by him indiscriminately and
+conducted with a view to one single end, _success_. It is much to be
+feared, however, that the prevailing tone of professional ethics leads
+practically to this result. He has an undoubted right to refuse a
+retainer, and decline to be concerned in any cause, at his discretion.
+It is a discretion to be wisely and justly exercised. When he has once
+embarked in a case, he cannot retire from it without the consent of his
+client or the approbation of the court.[10] To come before the court
+with a revelation of facts, damning to his client's case, as a ground
+for retiring from it, would be a plain breach of the confidence reposed
+in him, and the law would seal his lips.[11] How then is he to acquit
+himself? Lord Brougham, in his justly celebrated defence of the Queen,
+went to very extravagant lengths upon this subject; no doubt he was led
+by the excitement of so great an occasion to say what cool reflection
+and sober reason certainly never can approve. "An advocate," said he,
+"in the discharge of his duty knows but one person in all the world, and
+that person is his client. To save that client by all means and
+expedients, and at all hazards and costs to other persons, and among
+them to himself, is his first and only duty; and in performing this
+duty he must not regard the alarm, the torments, the destruction he may
+bring upon others. Separating the duty of a patriot from that of an
+advocate, he must go on reckless of consequences; though it should be
+his unhappy lot to involve his country in confusion."
+
+On the other hand, and as illustrative of the practical difficulty,
+which this question presented to a man, with as nice a perception of
+moral duty as perhaps ever lived, it is said by Bishop Burnet, of Sir
+Matthew Hale: "If he saw a cause was unjust, he for a great while would
+not meddle further in it, but to give his advice that _it was so_; if
+the parties after that would go on, they were to seek another
+counsellor, for he would assist none in acts of injustice; if he found
+the cause doubtful or weak in point of law, he always advised his
+clients to agree their business. Yet afterwards he abated much of the
+scrupulosity he had about causes that appeared at first unjust, upon
+this occasion; there were two causes brought him, which by the ignorance
+of the party or their attorney, were so ill-represented to him that they
+seemed to be very bad; but he inquiring more narrowly into them, found
+they were really very good and just; so after this he slackened much of
+his former strictness of refusing to meddle in causes upon the ill
+circumstances that appeared in them at first."[12]
+
+It may be delicate and dangerous ground to tread upon to undertake to
+descend to particulars upon such a subject. Every case must, to a great
+degree, depend upon its own circumstances, known, peradventure, to the
+counsel alone; and it will often be hazardous to condemn either client
+or counsel upon what appears only. A hard plea--a sharp point--may
+subserve what is at bottom an honest claim, or just defence; though the
+evidence may not be within the power of the parties, which would make it
+manifest.
+
+There are a few propositions, however, which appear to me to be sound in
+themselves, and calculated to solve this problem practically in the
+majority of cases: at least to assist the mind in coming to a safe
+conclusion _in foro conscientiae_, in the discharge of professional duty.
+
+There is a distinction to be made between the case of prosecution and
+defence for crimes; between appearing for a plaintiff in pursuit of an
+unjust claim, and for a defendant in resisting what appears to be a just
+one.
+
+Every man, accused of an offence, has a constitutional right to a trial
+according to law: even if guilty, he ought not to be convicted and
+undergo punishment unless upon legal evidence; and with all the forms
+which have been devised for the security of life and liberty. These are
+the panoply of innocence when unjustly arraigned; and guilt cannot be
+deprived of it, without removing it from innocence. He is entitled,
+therefore, to the benefit of counsel to conduct his defence, to
+cross-examine the witnesses for the State, to scan, with legal
+knowledge, the forms of the proceeding against him, to present his
+defence in an intelligible shape, to suggest all those reasonable doubts
+which may arise from the evidence as to his guilt, and to see that if he
+is convicted, it is according to law. A circumstance the celebrated Lord
+Shaftesbury once so finely turned to his purpose must often happen to a
+prisoner at his trial. Attempting to speak on the bill for granting
+counsel to prisoners in cases of high treason, he was confounded, and
+for some time could not proceed, but recovering himself, he said, "What
+now happened to him would serve to fortify the arguments for the bill.
+If he innocent and pleading for others was daunted at the augustness of
+such an assembly, what must a man be who should plead before them for
+his life?"[13] The courts are in the habit of assigning counsel to
+prisoners who are destitute, and who request it; and counsel thus named
+by the court cannot decline the office.[14] It is not to be termed
+screening the guilty from punishment, for the advocate to exert all his
+ability, learning, and ingenuity, in such a defence, even if he should
+be perfectly assured in his own mind of the actual guilt of the
+prisoner.[15]
+
+It is a different thing to engage as private counsel in a prosecution
+against a man whom he knows or believes to be innocent. Public
+prosecutions are carried on by a public officer, the Attorney-General,
+or those who act in his place; and it ought to be a clear case to induce
+gentlemen to engage on behalf of private interests or feelings, in such
+a prosecution. It ought never to be done against the counsel's own
+opinion of its merits. There is no call of professional duty to balance
+the scale, as there is in the case of a defendant. It is in every case
+but an act of courtesy in the Attorney-General to allow private counsel
+to take part for the Commonwealth; such a favor ought not to be asked,
+unless in a cause believed to be manifestly just. The same remarks apply
+to mere assistance in preparing such a cause for trial out of court, by
+getting ready and arranging the evidence and other matters connected
+with it: as the Commonwealth has its own officers, it may well, in
+general, be left to them. There is no obligation on an attorney to
+minister to the bad passions of his client; it is but rarely that a
+criminal prosecution is pursued for a valuable private end, the
+restoration of goods, the maintenance of the good name of the
+prosecutor, or closing the mouth of a man who has perjured himself in a
+court of justice. The office of Attorney-General is a public trust,
+which involves in the discharge of it, the exertion of an almost
+boundless discretion, by an officer who stands as impartial as a judge.
+"The professional assistant, with the regular deputy, exercises not his
+own discretion, but that of the Attorney-General, whose _locum tenens_
+at sufferance, he is; and he consequently does so under the obligation
+of the official oath."[16] On the other hand, if it were considered that
+a lawyer was bound or even had a right to refuse to undertake the
+defence of a man because he thought him guilty, if the rule were
+universally adopted, the effect would be to deprive a defendant, in such
+cases, of the benefit of counsel altogether.
+
+The same course of remark applies to civil causes. A defendant has a
+legal right to require that the plaintiffs demand against him should be
+proved and proceeded with according to law. If it were thrown upon the
+parties themselves, there would he a very great inequality between them,
+according to their intelligence, education, and experience,
+respectively. Indeed, it is one of the most striking advantages of
+having a learned profession, who engage as a business in representing
+parties in courts of justice, that men are thus brought nearer to a
+condition of equality, that causes are tried and decided upon their
+merits, and do not depend upon the personal characters and
+qualifications of the immediate parties.[17] Thus, too, if a suit be
+instituted against a man to recover damages for a tort, the defendant
+has a right to all the ingenuity and eloquence he can command in his
+defence, that even if he has committed a wrong, the amount of the
+damages may not exceed what the plaintiff is justly entitled to recover.
+But the claim of a plaintiff stands upon a somewhat different footing.
+Counsel have an undoubted right, and are in duty bound, to refuse to be
+concerned for a plaintiff in the legal pursuit of a demand, which
+offends his sense of what is just and right. The courts are open to the
+party in person to prosecute his own claim, and plead his own cause;
+and although he ought to examine and be well-satisfied before he refuses
+to a suitor the benefit of his professional skill and learning, yet it
+would be on his part an immoral act to afford that assistance, when his
+conscience told him that the client was aiming to perpetrate a wrong
+through the means of some advantage the law may have afforded him. "It
+is a popular but gross mistake," says the late Chief Justice Gibson, "to
+suppose that a lawyer owes no fidelity to any one except his client, and
+that the latter is the keeper of his professional conscience. He is
+expressly bound by his official oath to behave himself, in his office of
+attorney, with all fidelity to the court as well as the client; and he
+violates it when he consciously presses for an unjust judgment, much
+more so when he presses for the conviction of an innocent man.... The
+high and honorable office of a counsel would be degraded to that of a
+mercenary, were he compelled to do the biddings of his client against
+the dictates of his conscience."[18] The sentiment has been expressed
+in flowing numbers by our great commentator, Sir William Blackstone:--
+
+   "To Virtue and her friends a friend,
+    Still may my voice the weak defend:
+    Ne'er may my prostituted tongue
+    Protect the oppressor in his wrong;
+    Nor wrest the spirit of the laws,
+    To sanctify the villain's cause."
+
+Another proposition which may be advanced upon this subject is, that
+there may and ought to be a difference made in the mode of conducting a
+defence against what is believed to be a righteous, and what is believed
+to be an unrighteous claim. A defence in the former case should be
+conducted upon the most liberal principles. When he is contending
+against the claim of one, who is seeking, as he believes, through the
+forms of law, to do his client an injury, the advocate may justifiably
+avail himself of every honorable ground to defeat him. He may begin at
+once by declaring to his opponent or his professional adviser, that he
+holds him at arm's length, and he may keep him so during the whole
+contest. He may fall back upon the instructions of his client, and
+refuse to yield any legal vantage ground, which may have been gained
+through the ignorance or inadvertence of his opponent. Counsel, however,
+may and even ought to refuse to act under instructions from a client to
+defeat what he believes to be an honest and just claim, by insisting
+upon the slips of the opposite party, by sharp practice, or special
+pleading--in short, by any other means than a fair trial on the merits
+in open court. There is no professional duty, no virtual engagement with
+the client, which compels an advocate to resort to such measures, to
+secure success in any cause, just or unjust; and when so instructed, if
+he believes it to be intended to gain an unrighteous object, he ought
+to throw up the cause, and retire from all connection with it, rather
+than thus he a participator in other men's sins.
+
+Moreover, no counsel can with propriety and a good conscience express to
+court or jury his belief in the justice of his client's cause, contrary
+to the fact. Indeed, the occasions are very rare in which he ought to
+throw the weight of his own private opinion into the scales in favor of
+the side he has espoused. If that opinion has been formed on a statement
+of facts not in evidence, it ought not to be heard,--it would be illegal
+and improper in the tribunal to allow any force whatever to it; if on
+the evidence only, it is enough to show from that the legal and moral
+grounds on which such opinion rests. Some very sound and judicious
+observations have been made by Mr. Whewell in a recent work on the
+Elements of Moral and Political Science, which deserve to be quoted at
+length;--
+
+"Some moralists," says he, "have ranked with the cases in which
+convention supersedes the general rule of truth, an advocate asserting
+the justice, or his belief in the justice, of his client's cause. Those
+who contend for such indulgence argue that the profession is an
+instrument for the administration of justice: he is to do all he can for
+his client: the application of laws is a matter of great complexity and
+difficulty: that the right administration of them in doubtful cases is
+best provided for if the arguments on each side are urged with the
+utmost force. The advocate is not the judge.
+
+"This may be all well, if the advocate let it be so understood. But if
+in pleading he assert his belief that his cause is just when he believes
+it unjust, he offends against truth, as any other man would do who in
+like manner made a like assertion.
+
+"Every man, when he advocates a case in which morality is concerned, has
+an influence upon his hearers, which arises from the belief that he
+shares the moral sentiments of all mankind. This influence of his
+supposed morality is one of his possessions, which, like all his
+possessions, he is bound to use for moral ends. If he mix up his
+character as an advocate with his character as a moral agent, using his
+moral influence for the advocate's purpose, he acts immorally. He makes
+the moral rule subordinate to the professional rule. He sells to his
+client not only his skill and learning, but himself. He makes it the
+supreme object of his life to be not a good man, but a successful
+lawyer.
+
+"There belong to him, moreover, moral ends which regard his profession;
+namely, to make it an institution fitted to promote morality. To raise
+and purify the character of the profession, so that it may answer the
+ends of justice without requiring insincerity in the advocate, is a
+proper end for a good man who is a lawyer; a purpose on which he may
+well and worthily employ his efforts and influence."[19]
+
+Nothing need be added to enforce what has been so well said. The remark,
+however, may be permitted, that the expression of private opinion as to
+the merits of a controversy often puts the counsel at fearful odds. A
+young man, unknown to the court or the jury, is trying his first case
+against a veteran of standing and character: what will the asseveration
+of the former weigh against that of the latter? In proportion, then, to
+the age, experience, maturity of judgment, and professional character of
+the man, who falsely endeavors to impress the court and jury with the
+opinion of his confidence in the justice of his case, in that proportion
+is there danger that injury will be done and wrong inflicted--in that
+proportion is there moral delinquency in him who resorts to it.
+
+Much interest was excited some years ago in England, by the
+circumstances attending the defence of Courvoisier, indicted for the
+murder of Lord William Russell. The crime was one of great atrocity. It
+came out after his conviction, that during the trial he had confessed
+his guilt to his counsel, of whom the eminent barrister Charles
+Phillips, Esq., was one. Mr. Phillips was accused of having endeavored,
+notwithstanding this confession, to fasten suspicion on the other
+servants in the house, to induce the belief that the police had
+conspired with them to manufacture evidence against the prisoner, and to
+impress the jury with his own personal belief in the innocence of his
+client. How far these accusations were just in point of fact was the
+subject of lively discussion in the newspapers and periodicals of the
+time.[20]
+
+The language of counsel, on such occasions, during the excitement of the
+trial, in the fervor of an address to the jury, is not to be calmly and
+nicely scanned in the printed report. The testimony of such a witness as
+Baron Parke, at the time and on the spot,--he, too, aware of the exact
+position of Mr. Phillips--and that confirmed by Chief Justice Tindal,
+is conclusive. To charge him with _acting falsehood_, that is, with
+presenting the case as it appeared upon the testimony, earnestly and
+confidently, means that he did not do that, which would have been worse
+than retiring from his post.
+
+The non-professional, as well as professional public in England,
+however, agreed in saying that he would not have been justified in
+withdrawing from the case: he was still bound to defend the accused upon
+the evidence; though a knowledge of his guilt, from whatever source
+derived, might and ought materially to influence the mode of the
+defence. No right-minded man, professional or otherwise, will contend
+that it would have been right in him to have lent himself to a defence,
+which might have ended, had it been successful, in bringing down an
+unjust suspicion upon an innocent person; or even to stand up and
+falsely pretend a confidence in the truth and justice of his cause,
+which he did not feel. But there were those on this side of the
+Atlantic, who demurred to the conclusion, that an advocate is under a
+moral obligation to maintain the defence of a man who has admitted to
+him his guilt. Men have been known, however, under the influence of some
+delusion, to confess themselves guilty of crimes which they had not
+committed: and hence, to decline acting as counsel in such a case, is a
+dangerous refinement in morals.[21] Nothing seems plainer than the
+proposition, that a person accused of a crime is to be tried and
+convicted, if convicted at all, _upon evidence_, and _whether guilty or
+not guilty_, if the evidence is insufficient to convict him, he has _a
+legal right_ to be acquitted. The tribunal that convicts without
+sufficient evidence may decide according to the fact; but the next jury,
+acting on the same principle, may condemn an innocent man. If this be
+so, is not the prisoner in every case entitled to have the evidence
+carefully sifted, the weak points of the prosecution exposed, the
+reasonable doubts presented which should weigh in his favor? And what
+offence to truth or morality does his advocate commit in discharging
+that duty to the best of his learning and ability? What apology can he
+make for throwing up his brief? The truth he cannot disclose; the law
+seals his lips as to what has thus been communicated to him in
+confidence by his client. He has no alternative, then, but to perform
+his duty. It is his duty, however, as an advocate merely, as Baron Parke
+has well expressed it, to use ALL FAIR ARGUMENTS ARISING ON THE
+EVIDENCE. Beyond that, he is not bound to go in any case; in a case in
+which he is satisfied in his own mind of the guilt of the accused, he is
+not justified in going.
+
+Under all circumstances, the utmost candor should be used towards the
+client. This is imperatively demanded alike by considerations of duty
+and interest. It is much better for a man occasionally to lose a good
+client, than to fail in so plain a matter. It is nothing but selfishness
+that can operate upon a lawyer when consulted to conceal from the party
+his candid opinion of the merits, and the probable result. It is fair
+that he should know it; for he may not choose to employ a man whose
+views may operate to check his resorting to all lawful means to effect
+success. Besides, most men, when they consult an attorney, wish a candid
+opinion; it is what they ask and pay for. It is true, that it is often
+very hard to persuade a man that he has not the best side of a lawsuit:
+his interest blinds his judgment: his passion will not allow him to
+reflect calmly, and give due weight to opposing considerations. There
+are many persons who will go from lawyer to lawyer with a case, until
+they find one who is willing to express an opinion which tallies with
+their own. Such a client the lawyer, who acts firmly upon the principle
+to which I have adverted, will now and then lose; but even such an one,
+when finally unsuccessful, as the great probability is that he will be,
+when he comes to sit down and calculate all that he has lost in time,
+money, and character, by acting contrary to the advice first given, will
+revert to the candid and honest opinion he then received, and determine,
+if ever he gets into another difficulty of the kind, to resort to that
+attorney, and abide by his advice. Thus may a man build up for himself a
+character far outweighing, even in pecuniary value, all such paltry
+particular losses; it is to such men that the best clients resort; they
+have the most important and interesting lawsuits, and enjoy by far the
+most lucrative practice.
+
+A very important part of the advocate's duty is to moderate the passions
+of the party, and where the case is of a character to justify it, to
+encourage an amicable compromise of the controversy. It happens too
+often at the close of a protracted litigation that it is discovered,
+when too late, that the play has not been worth the candle, and that it
+would have been better, calculating everything, for the successful party
+never to have embarked in it--to have paid the claim, if defendant, or
+to have relinquished it, if he was plaintiff. Counsel can very soon
+discover whether such is likely to be the case, and it cannot be doubted
+what their plain duty is under such circumstances.
+
+Besides this, the advocate is bound in honor, as well as duty, to
+disclose to the client at the time of the retainer, every circumstance
+of his own connection with the parties or prior relation to the
+controversy, which can or may influence his determination in the
+selection of him for the office. An attorney is bound to disclose to his
+client every adverse retainer, and even every prior retainer, which may
+affect the discretion of the latter. No man can be supposed to be
+indifferent to the knowledge of facts, which work directly on his
+interests, or bear on the freedom of his choice of counsel. When a
+client employs an attorney, he has a right to presume, if the latter be
+silent on the point, that he has no engagements which interfere, in any
+degree, with his exclusive devotion to the cause confided to him; that
+he has no interest which may betray his judgment or endanger his
+fidelity.[22]
+
+It is in some measure the duty of counsel to be the keeper of the
+conscience of the client; not to suffer him, through the influence of
+his feelings or interest, to do or say anything wrong in itself, and of
+which he would himself afterwards repent. This guardianship may be
+carefully, and at the same time kindly exerted. One particular will be
+mentioned in which its exercise is frequently called for. The client
+will be often required, in the course of a cause, to make affidavits of
+various kinds. There is no part of his business with his client, in
+which a lawyer should be more cautious, or even punctilious, than this.
+He should be careful lest he incur the moral guilt of subornation of
+perjury, if not the legal offence. An attorney may have communications
+with his client in such a way, in instructing him as to what the law
+requires him to state under oath or affirmation, in order to accomplish
+any particular object in view, as to offer an almost irresistible
+temptation and persuasion to stretch the conscience of the affiant up to
+the required point. Instead of drawing affidavits, and permitting them
+to be sworn to as a matter of course, as it is to be feared is too often
+the case, counsel should on all occasions take care to treat an oath
+with great solemnity, as a transaction to be very scrupulously watched,
+because involving great moral peril as well as liability to public
+disgrace and infamy. It lies especially in the way of the profession to
+give a high tone to public sentiment upon this all-important subject,
+the sacredness of an oath. It is always the wisest and best course, to
+have an interview with the client, and draw from him by questions,
+whether he knows the facts which you know he is required to state, so
+that you may judge whether, as a conscientious man, he ought to make
+such affidavit.
+
+Another particular may be adverted to: the attempt to cover property
+from the just demands of creditors. It is to be feared that gentlemen
+of the Bar sometimes shut their eyes and, under the influence of
+feelings of commiseration for an unfortunate client, feign not to see
+what is really very palpable to everybody else. Surely they ought never
+to sanction, directly or indirectly such shams, especially when the
+machinery of a judicial sale is introduced more securely to accomplish
+the object. A purchase is made in the name of a friend for the debtor's
+benefit and with the debtor's money, though it may be hard to make that
+appear by legal evidence. When advice is asked, as it sometimes is, how
+such a thing may be safely and legally done, the idea held prominently
+before the party by his counsel should be, that his estate is the
+property of his creditors, and that nothing but their consent will
+justify an appropriation of any part of it to his benefit.
+
+Lawyers too may very materially assist in giving a high tone to public
+sentiment in the matter of stay and exemption laws. It is not every case
+in which a man has a legal that he has a moral right to claim the
+benefit of such laws. When a debtor with ample means to pay only wants
+to harass and worry his creditor, who has resorted to legal process and
+obtained a judgment, by keeping him out of his money, as it is often
+expressed, as long as he can; or where he wishes to take advantage of
+hard times to make more than legal interest, or with concealed means
+unknown to the execution plaintiff, claims the exemption: these are
+cases which counsel ought to hold up in their proper light to those whom
+they advise, and wash their hands of the responsibility of them.
+According to the Jewish law, the cloak or outer garment, which was
+generally used by the poorer classes as a covering during sleep, could
+not be retained by the creditor to whom it had been given in pledge, and
+of course was exempt by law from seizure for debt; and our blessed
+Saviour, in his sermon on the mount, has been supposed to refer to this
+exemption law, when he said: "And if any man will sue thee at the law
+and take away thy coat, let him have thy cloak also;" that is, confine
+not yourself in your transactions with your fellow-men to giving them
+simply the strict measure of their legal rights: give them all that is
+honestly theirs as far as you have ability, whether the law affords them
+a remedy or not. There have been some noble instances of bankrupts who,
+upon subsequently retrieving their fortunes, have fully discharged all
+their old debts, principal and interest, though released or barred by
+the Statute of Limitations; but such instances would be more common if
+the spirit of the high and pure morality, which breathes through the
+sermon on the mount, prevailed more extensively.
+
+An important clause in the official oath is "to delay no man's cause for
+lucre or malice." It refers, no doubt, primarily, to the cause intrusted
+to the attorney, and prohibits him from resorting to such means for the
+purpose of procuring more fees, or of indulging any feeling he may have
+against his client personally. Such conduct would be a clear case of a
+violation of the oath. But it is a question, also, whether the case
+generally, in which he is retained, is not comprehended.[23] How far,
+then, can he safely go in delaying the cause for the benefit of, and in
+pursuance of the instructions of his client? A man comes to him and
+says: "I have no defence to this claim; it is just and due, but I have
+not the means to pay it; I want all the time you can get for me." The
+best plan in such instances, is, no doubt, at once frankly to address
+his opponent, and he will generally be willing to grant all the delay
+which he knows, in the ordinary course can be gained, and perhaps more,
+as a consideration for his own time and trouble saved. If, however, that
+be impracticable, it would seem that the suitor has a right to all the
+delay, which is incident to the ordinary course of justice. The counsel
+may take all means for this purpose, which do not involve artifice or
+falsehood in himself or the party. The formal pleas put in are not to be
+considered as false in this aspect, except such as are required to be
+sustained by oath. In an ejectment, for example, an appearance need not
+be entered until the second term, the legislature having seen fit to
+give that much respite to the unjust possessor of real estate. But to
+stand by and see a client swear off a case on account of the absence of
+a material witness, when he knows that no witness can be material; or
+further to make affidavit that his appeal or writ of error is not
+intended for delay, when he knows that it is intended for nothing else,
+no high-minded man will be privy or consent to such actions, much less
+have any active participation in them.
+
+Subject, however, to the qualifications which have been stated, when a
+cause is undertaken, the great duty which the counsel owes to his
+client, is an immovable fidelity. Every consideration should induce an
+honest and honorable man to regard himself, as far as the cause is
+concerned, as completely identified with his client. The criminal and
+disgraceful offence of taking fees of two adversaries, of allowing
+himself to be approached corruptly, whether directly or indirectly, with
+a view to conciliation, ought, like parricide in the Athenian law, to be
+passed over in silence in a code of professional ethics.[24] All
+considerations of self should be sunk by the lawyer in his duty to the
+cause. The adversary may be a man of station, wealth, and influence; his
+good will may be highly valuable to him; his enmity may do him great
+injury. He should not permit such thoughts to arise in his mind. He
+should do his duty manfully, without fear, favor, or affection.
+
+At the same time, let it be observed, that no man ought to allow himself
+to be hired to abuse the opposite party. It is not a desirable
+professional reputation to live and die with, that of a rough tongue,
+which makes a man to be sought out, and retained to gratify the
+malevolent feelings of a suitor in hearing the other side well lashed
+and vilified. An opponent should always be treated with civility and
+courtesy, and if it be necessary to say severe things of him or his
+witnesses, let it be done in the language, and with the bearing, of a
+gentleman. There is no point in which it becomes an advocate to be more
+cautious, than in his treatment of the witnesses. In general, fierce
+assaults upon them, unnecessary trifling with their feelings, rough and
+uncivil behavior towards them in cross-examination, whilst it may
+sometimes exasperate them to such a pitch, that they will perjure
+themselves in the drunkenness of their passion, still, most generally
+tells badly on the jury. They are apt to sympathize with a witness under
+such circumstances.[25] It is as well unwise as unprofessional, in
+counsel, to accuse a witness of having forsworn himself, unless some
+good ground, other than the mere instruction of the client, is present
+in the evidence to justify it. He may sift most searchingly, and yet
+with a manner and courtesy which affords no ground for irritation,
+either in witness or opponent; and in such case, if his questions
+produce irritation, it is a circumstance which will weigh in his favor.
+
+The practitioner owes to his client, with unshaken fidelity, the
+exertion of all the industry and application of which he is capable to
+become perfect master of the questions at issue, to look at them in all
+their bearings, to place himself in the opposite interest, and to
+consider and be prepared as far as possible, for all that may be said or
+done on the contrary part. The duty of full and constant preparation, is
+too evident to require much elaboration. It is better, whenever it is
+possible to do so, to make this examination immediately upon the
+retainer, and not to postpone it to later stages in the proceedings. The
+opportunity is often lost, of ascertaining facts, and securing evidence,
+from putting off till too late, the business of understanding thoroughly
+all that it will be necessary to adduce on the trial. In this way, a
+lawyer will attain what is very important, that his client may be always
+prepared, as well as himself, have his attention alive to his case, know
+what witnesses are important, and keep a watch upon them, so that their
+testimony may not be lost, and upon the movements of his adversary, lest
+he should at any time be taken by surprise. It would be an excellent
+rule for him, at short stated periods, to make an examination of the
+record of every case which he has under his charge. It always operates
+disadvantageously to an attorney in the eyes of those who employ him, as
+well as the public, when he fails in consequence of some neglect or
+oversight. Frequent applications to the court, to relieve him from the
+consequences of his inattention, tell badly on his character and
+business. He may be able to make very plausible excuses; but the public
+take notice, that some men with large business never have occasion to
+make such excuses, and that other men with less, are constantly making
+them. Every instance of the kind helps to make up such a character. A
+young man should be particularly cautious, and dread such occurrences as
+highly injurious to his prospects. If he escapes the notice and
+animadversion of his constituent, and the legal consequences of his
+neglect, by the intervention of the court, or the indulgence of his
+opponent, the members of the Bar are lynx-eyed in observing such things.
+
+It may appear like digressing from our subject, to speak of such
+qualities as attention, accuracy, and punctuality, but like the minor
+morals of common life, they are little rills which at times unite and
+form great rivers. A life of dishonor and obscurity, if not ignominy,
+has often taken its rise from the fountain of a little habit of
+inattention and procrastination. System is everything. It can accomplish
+wonders. By this alone, as by a magic talisman, may time be so
+economized that business can be attended to and opportunities saved for
+study, general reading, exercise, recreation, and society. "A man that
+is young in years," says Lord Bacon, "may be old in hours, if he has
+lost no time." Hurry and confusion result from the want of system; and
+the mind can never be clear when a man's papers and business are in
+disorder. It is recorded of the pensionary De Witt, of the United
+Provinces, who fell a victim to the fury of the populace in the year
+1672, that he did the whole business of the republic, and yet had time
+left for relaxation and study in the evenings. When he was asked how he
+could possibly bring this to pass, his answer was, that "nothing was so
+easy; for that it was only doing one thing at a time, and never putting
+off anything till to-morrow that could he done to-day." "This steady and
+undissipated attention to one object," remarks Lord Chesterfield, in
+relating this anecdote, "is a sure mark of a superior genius." It is of
+the highest importance, also, that a lawyer should in early professional
+life, cultivate the habit of accuracy. It is a great advantage over
+opposing counsel,--a great recommendation in the eyes of intelligent
+mercantile and business men. A professional note to a merchant
+carelessly written will often of itself produce an unfavorable
+impression on his mind; and that impression he may communicate to many
+others. The importance of a good handwriting cannot be overrated. A
+plain legible hand every man can write who chooses to take the pains. A
+good handwriting is a passport to the favor of clients, and to the good
+graces of judges, when papers come to be submitted to them. It would be
+a good rule for a young lawyer, though at first perhaps irksome and
+inconvenient, never to suffer a letter or paper to pass from his hands
+with an erasure or interlineation. The time and trouble it may cost at
+the outset will be repaid in the end by the habit he will thereby
+acquire of transacting his business with care, neatness, and accuracy.
+
+He cannot be faithful to his clients unless he continues to be a hard
+student of the learning of his profession. Not merely that he should
+thoroughly investigate the law applicable to every case which may be
+intrusted to him; though that, besides its paramount necessity to enable
+him to meet the responsibility he has assumed to that particular client,
+will be the subsidiary means of important progress in his professional
+acquisitions. "Let any person," says Mr. Preston, "study one or two
+heads of the law fully and minutely, and he will have laid the
+foundation or acquired the aptitude for comprehending other heads of
+the law."[26] But, besides this, he should pursue the systematic study
+of his profession upon some well-matured plan. When admitted to the Bar,
+a young man has but just begun, not finished, his legal education. If he
+have mastered some of the most general elementary principles, and has
+acquired a taste for the study, it is as much as can be expected from
+his clerkship. There are few young men who come to the Bar, who cannot
+find ample time in the first five or seven years of their novitiate, to
+devote to a complete acquisition of the science they profess, if they
+truly feel the need of it, and resolve to attain it. The danger is great
+that from a faulty preparation,--from not being made to see and
+appreciate the depth, extent, and variety of the knowledge they are to
+seek, they will mistake the smattering they have acquired for profound
+attainments. The anxiety of the young lawyer is a natural one at once to
+get business--as much business as he can. Throwing aside his books, he
+resorts to the many means at hand of gaining notoriety and attracting
+public attention, with a view of bringing clients to his office. Such an
+one in time never fails to learn much by his mistakes, but at a sad
+expense of character, feeling, and conscience. He at last finds that in
+law, as in every branch of knowledge, "a little learning is a dangerous
+thing;" that what he does not know falsifies often in its actual
+application that which he supposed he certainly did know; and after the
+most valuable portion of his life has been frittered away upon objects
+unworthy of his ambition, he is too apt to conclude that it is now too
+late to redeem his time; he finds that he has lost all relish for
+systematic study, and when he is driven to the investigation of
+particular questions, is confounded and embarrassed--unable to thread
+his way through the mazes of authorities, to reconcile apparently
+conflicting cases, or deduce any satisfactory conclusion from them--in
+short, he has no greater aptitude, accuracy, and discrimination than
+when he set out in the beginning of his studies. No better advice can
+be given to a young practitioner, than to confine himself generally to
+his office and books, even if this should require self-denial and
+privation, to map out for himself a course of regular studies, more or
+less extended, according to circumstances, to aim at mastering the works
+of the great luminaries of the science, Coke, Fearne, Preston, Powell,
+Sugden, and others, not forgetting the maxim, _melius est petere fontes
+quam sectari rivulos_, and to investigate for himself the most important
+and interesting questions, by an examination and research of the
+original authorities. "He that reacheth deepest seeth the amiable and
+admirable, secrets of the law,"[27] and thus may the student "proceed in
+his reading with alacrity, and set upon and know how to work into with
+delight these rough mines of hidden treasure."[28]
+
+It may be allowed here to commend to most serious consideration, the
+remarks of one of the most eminent of the profession--Horace Binney--a
+gentleman of our own Bar, whose example enforces and illustrates their
+value: "There are two very different methods of acquiring a knowledge of
+the laws of England, and by each of them, men have succeeded in public
+estimation to an almost equal extent. One of them, which may be called
+the old way, is a methodical study of the general system of law, and of
+its grounds and reasons, beginning with the fundamental law of estates
+and tenures, and pursuing the derivative branches in logical succession,
+and the collateral subjects in due order; by which the student acquires
+a knowledge of principles that rule in all departments of the science,
+and learns to feel as much as to know what is in harmony with the system
+and what not. The other is, to get an outline of the system, by the aid
+of commentaries, and to fill it up by the desultory reading of treatises
+and reports, according to the bent of the student, without much shape or
+certainty in the knowledge so acquired, until it is given by
+investigation in the course of practice. A good deal of law may be put
+together by a facile or flexible man, in the second of these modes, and
+the public are often satisfied; but the profession itself knows the
+first, by its fruits, to be the most effectual way of making a great
+lawyer."[29]
+
+Such a course of study as is here recommended, is not the work of a day
+or a year. In the meantime let business seek the young attorney; and
+though it may come in slowly, and at intervals, and promise in its
+character neither fame nor profit, still, if he bears in mind that it is
+an important part of his training, that he should understand the
+business he does thoroughly, that he should especially cultivate, in
+transacting it, habits of neatness, accuracy, punctuality, and despatch,
+candor towards his client, and strict honor towards his adversary, it
+may be safely prophesied that his business will grow as fast as it is
+good for him that it should grow; while he gradually becomes able to
+sustain the largest practice, without being bewildered and overwhelmed.
+
+Let him be careful, however, not to settle down into a mere lawyer. To
+reach the highest walks of the profession, something more is needed. Let
+polite literature be cultivated in hours of relaxation. Let him lose not
+his acquaintance with the models of ancient taste and eloquence. He
+should study languages, as well from their practical utility in a
+country so full of foreigners, as from the mental discipline, and the
+rich stores they furnish. He should cultivate a pleasing style, and an
+easy and graceful address. It may be true, that in a "court of justice,
+the veriest dolt that ever stammered a sentence, would be more attended
+to, with a case in point, than Cicero with all his eloquence,
+unsupported by authorities,"[30] yet even an argument on a dry point of
+law, produces a better impression, secures a more attentive auditor in
+the judge, when it is constructed and put together with attention to the
+rules of the rhetorical art; when it is delivered, not stammeringly, but
+fluently; when facts and principles, drawn from other fields of
+knowledge, are invoked to support and adorn it; when voice, and gesture,
+and animation, give it all that attraction which earnestness always and
+alone imparts. There is great danger that law reading, pursued to the
+exclusion of everything else, will cramp and dwarf the mind, shackle it
+by the technicalities with which it has become so familiar, and disable
+it from taking enlarged and comprehensive views even of topics falling
+within its compass as well as of those lying beyond its legitimate
+domain. An amusing instance of this is said to have occurred in the
+debate in the House of Commons, on the great question as to the right of
+the Parliament of Great Britain to tax the Colonies. At the close of the
+discussion, in which Fox and Burke, as well as others, had distinguished
+themselves, a learned lawyer arose and said that the real point on which
+the whole matter turned, had been unaccountably overlooked. In the midst
+of deep silence and anxious expectation from all quarters of the House,
+he proceeded to show that the lands of the Colonies had been originally
+granted by the Crown, and were held _ut de honore_, as of the Manor of
+Greenwich, in the county of Kent; and thence he concluded that as the
+Manor of Greenwich was represented in Parliament, so the lands of the
+North American Colonies (by tenure, a part of the Manor) were
+represented by the knights of the shire for Kent.[31]
+
+Let me remark, too, before hastening to another topic more immediately
+connected with the duties of active professional life, that the
+cultivation of a taste for polite literature has other importance
+besides its value as a preparation and qualification for practice and
+forensic contests. Nothing is so well adapted to fill up the interstices
+of business with rational enjoyment, to make even a solitary life
+agreeable, and to smooth pleasantly and honorably the downward path of
+age. The mental vigor of one who is fond of reading, other things being
+equal, becomes impaired at a much later period of life. The lover of
+books has faithful companions and friends, who will never forsake him
+under the most adverse circumstances. "As soon as I found," said Sir
+Samuel Romilly, "that I was to be a busy lawyer for life, I strenuously
+resolved to keep up my habit of non-professional reading; for I had
+witnessed so much misery in the last years of many great lawyers, whom I
+had known, from their loss of all taste for books, that I regarded their
+fate as my warning." Mr. Gibbon was wont to say that he would not
+exchange his love of reading for the wealth of the Indies. It is indeed
+a fortune, of which the world's reverses can never deprive us. It
+fortifies the soul against the calamities of life. It moderates, if it
+is not strong enough to govern and control the passions. It favors not
+the association of the cup, the dice-box, or the debauch. The atmosphere
+of a library is uncongenial with them. It clings to home, nourishes the
+domestic affections, and the hopes and consolations of religion.
+
+Another very delicate and often embarrassing question in the relation of
+attorney and client is in regard to the subject of compensation for
+professional services.
+
+In all countries advanced in civilization, and whose laws and manners
+have attained any degree of refinement, there has arisen an order of
+advocates devoted to prosecuting or defending the lawsuits of others.
+Before the tribunals of Athens, although the party pleaded his own
+cause, it was usual to have the oration prepared by one of an order of
+men devoted to this business, and to compensate him liberally for his
+skill and learning. Many of the orations of Isocrates, which have been
+handed down to us, are but private pleadings of this character. He is
+said to have received one fee of twenty talents, about eighteen
+thousand dollars of our money, for a speech that he wrote for Nicocles,
+king of Cyprus. Still, from all that appears, the compensation thus
+received was honorary or gratuitous merely. Among the early institutions
+of Rome, the relation of patron and client, which existed between the
+patrician and plebeian, bound the former to render the latter assistance
+and protection in his lawsuits, with no other return than the general
+duty, which the client owed to his patron. As every patrician could not
+be a sufficiently profound lawyer to resolve all difficulties, which
+might arise in the progress of a complex system of government and laws,
+though he still might accomplish himself in the art of eloquence, there
+arose soon a new order of men, the jurisconsults. They also received no
+compensation. On the public days of market, or assembly, the masters of
+the art were seen walking in the forum, ready to impart the needful
+advice to the meanest of their fellow-citizens, from whose votes on a
+future occasion, they might solicit a grateful return. As their years
+and honors increased, they seated themselves at home, on a chair or
+throne, to expect with patient gravity the visits of their clients, who
+at the dawn of day, from the town and country, began to thunder at their
+doors.[32] Often, indeed, the patron was able in his own person to
+exercise the office both of advocate and counsellor. It was only in the
+more glorious, because the more virtuous, period of the republic, that
+the relation was sustained upon so honorable a foundation. In the
+progress of society, the business of advocating causes became a distinct
+profession; and then it was usual to pay a fee in advance, which was
+called a gratuity or present. As this was a mere honorary recompense,
+the client was under no legal obligation to pay it. But the result
+necessarily was, that if the usual present was not given, the advocate
+did not consider himself bound in honor to undertake the advocation of
+the cause before the courts. Afterwards, Marcus Cincius Alimentus, the
+tribune of the people, procured the passage of the law known as the
+_Cincian_ law, prohibiting the patron or advocate from receiving any
+money or other present for any cause; and annulling all gratuities or
+presents made by the client to the patron or advocate. But as no penalty
+was prescribed for the breach of the law, it of course became a dead
+letter. The Emperor Augustus afterwards re-enacted the Cincian law, and
+prescribed penalties for its breach. But towards the end of his reign,
+the advocates were again authorized to receive fees or presents from
+their clients. The Emperor Tiberius also permitted them to receive such
+forced gratuities. This led to the abuse referred to by Tacitus, and
+induced the Senate to insist upon the enforcement of the re-enactment of
+the Cincian law, or rather a law limiting the amount of the fees of
+advocates.[33] Nero revoked the law of Claudian, which was subsequently
+re-enacted by the Emperor Trajan, with the additional restriction that
+the advocate should not be permitted to receive his fee or gratuity,
+until the cause was decided. The younger Pliny mentions a law, which
+authorized the advocate, after the pleadings in the cause had been made
+and the judgment had been given, to receive the fee, which might be
+voluntarily offered by the client, either in money or a promise to pay.
+Erskine, in his Institutes of the Law of Scotland, understands the law
+in the Digest _De Extraordinariis Cognitionibus_ as authorizing a suit
+for the fee of a physician or advocate without a previous agreement for
+a specific sum.[34]
+
+The consequences may be best told in the impressive language of the
+historian of the Decline and Fall of the Empire: "The noble art, which
+had once been preserved as the sacred inheritance of the patricians, was
+fallen into the hands of freedmen and plebeians, who, with cunning
+rather than with skill, exercised a sordid and pernicious trade. Some of
+them procured admittance into families for the purpose of fomenting
+differences, of encouraging suits, and of preparing a harvest of gain
+for themselves or their brethren. Others, recluse in their chambers,
+maintained the dignity of legal professors, by furnishing a rich client
+with subtleties to confound the plainest truth, and with arguments to
+color the most unjustifiable pretensions. The splendid and popular class
+was composed of the advocates, who filled the Forum with the sound of
+their turgid and loquacious rhetoric. Careless of fame and of justice,
+they are described for the most part, as ignorant and rapacious guides,
+who conducted their clients through a maze of expense, of delay, and of
+disappointment; from whence, after a tedious series of years, they were
+at length dismissed when their patience and fortune were almost
+exhausted."[35] Is not this probably the history of the decline of the
+profession in all countries from an honorable office to a money-making
+trade?
+
+It is the established law of England, that a counsellor or barrister
+cannot maintain a suit for his fees.[36] There is in that country a
+class of mere attorneys, who attend to legal business out of court, who
+bring suits and conduct them up to issue; but who are not allowed to
+speak in court. This latter privilege is confined to serjeants and
+barristers. Attorneys are regulated by statute, and are subject to many
+restrictions; having a rate of fees, settled either by statute or
+established usage; and required to be fixed by the taxation of an
+officer of the court before a suit can be brought for them. Barristers
+are admitted only under the regulations established by the various inns
+of court; and the serjeants, who long had the monopoly of the Bar of the
+Common Pleas, are appointed by patent from the king. A barrister cannot
+be an attorney.[37]
+
+In this country, there is in general no distinction between attorneys
+and counsellors. The same persons fulfil the duties of both. Hence no
+difference is made between their right to recover compensation for
+services in the one capacity or the other.[38] In Pennsylvania, it was
+held at one time that an attorney could not recover, without an express
+promise, anything beyond the trifling and totally inadequate sum
+provided in the fee-bill. That pure and eminent jurist Chief Justice
+Tilghman thought that the policy of refusing a legal remedy for anything
+beyond that had not been adopted without great consideration.[39] He
+stands not alone in the opinion that it has been neither for the honor
+nor profit of the Bar to depart from the ancient rule.[40] It has been
+departed from in this State, and the early decision overruled, however;
+and it must be frankly admitted, that the current of decisions in our
+sister States is in the same way.[41]
+
+It is supposed that the ancient rule was artificial in its structure,
+and practically unjust,--that it is wholly inconsistent with our ideas
+of equality to suppose that the business or profession, by which any one
+earns the daily bread of himself or of his family, is so much more
+honorable than the business of other members of the community as to
+prevent him from receiving a fair compensation for his services on that
+account.[42] It has been pronounced ridiculous to attempt to perpetuate
+a monstrous legal fiction, by which the hard-working lawyers of our day,
+toiling till midnight in their offices, are to be regarded in the eye of
+the law in the light of the patrician jurisconsults of ancient Rome,
+when
+
+      ---- dulce diu fuit et solemne, reclusa
+    Mane domo vigilare, clienti promere jura,--
+
+and who at daybreak received the early visits of their humble and
+dependent clients, and pronounced with mysterious brevity the oracles of
+the law.[43]
+
+These are arguments which are more plausible than sound: they are
+imposing, but not solid. The question really is, what is best for the
+people at large,--what will be most likely to secure them a high-minded,
+honorable Bar? It is all-important that the profession should have and
+deserve that character. A horde of pettifogging, barratrous,
+custom-seeking, money-making lawyers, is one of the greatest curses
+with which any state or community can be visited. What more likely to
+bring about such a result than a decision, which strips the Bar of its
+character as a learned profession, on the principle avowed by one court,
+that it is now a calling as much as any mechanical art,--or by another,
+in effect, that the order of things is in the present condition of
+society reversed, and clients are really the _patrons_ of their
+attorneys? A more plausible reason is that the client is safer from the
+oppression of extortionate counsel, by putting both upon the equal
+footing of legal right and obligation. It would appear, however, better
+that the parties should make an express agreement before or at the time
+of retainer, or that the amount should be left to the justice of the
+counsel, and the honor and liberality of the client subsequently. Every
+judge, who has ever tried a case between attorney and client, has felt
+the delicacy and difficulty of saying what is the measure of just
+compensation. It is to be graduated, according to a high legal
+authority, with a proper reference to the nature of the business
+performed by the counsel for the client, and his standing in his
+profession for learning and skill; whereby the value of his services is
+enhanced to his client.[44] Is then the standing and character of the
+counsel in his profession for learning and skill to be a question of
+fact to be determined by the jury in every case in which a lawyer sues
+his client? How determined, if necessary to the decision of the
+question? Not surely by the crude opinions of the jurors; but by
+testimony of members of the same profession on the subject. This never
+is done; it would be a very difficult as well as delicate question for a
+lawyer to pronounce upon the standing of a professional brother. The
+most that can be done is to call gentlemen to say what they would have
+considered reasonable for such services, had they been performed by
+themselves. Some may testify up to a very high point, from an excusable,
+though foolish vanity; others to a very low one, from the despicable,
+desire of attracting custom to a cheap shop.[45] No one can ever have
+seen such a cause tried without feeling, that the Bar had received by it
+an impulse downwards in the eyes of bystanders and the community. The
+case is thrown into the jury-box, to be decided at haphazard, according
+as the twelve men may chance to think or feel. He, who narrowly watches
+such controversies, cannot fail to see that the right of a counsel to
+enforce his claim for legal compensation is far from being calculated to
+protect the client from oppression and extortion.
+
+It is not worth while, however, to quarrel with the decision. Let us
+inquire rather what should be the course of counsel, without regard to
+it. He certainly owes it to his profession, as well as himself, that
+when the client has the ability, his services should be recompensed; and
+that according to a liberal standard.[46] There are many cases, in which
+it will be his duty, perhaps more properly his privilege, to work for
+nothing. It is to be hoped, that the time will never come, at this or
+any other Bar in this country, when a poor man with an honest cause,
+though without a fee, cannot obtain the services of honorable counsel,
+in the prosecution or defence of his rights. But it must be an
+extraordinary--a very peculiar case--that will justify an attorney in
+resorting to legal proceedings, to enforce the payment of fees. It is
+better that he should be a loser, than have a public contest upon the
+subject with a client. The enlightened Bar of Paris, have justly
+considered the character of their order involved in such proceedings;
+and although by the law of France, an advocate may recover for his fees
+by suit, yet they regard it as dishonorable, and those who should
+attempt to do it, would be immediately stricken from the roll of
+attorneys.[47]
+
+Regard should be had to the general usage of the profession, especially
+as to the rates of commission to be charged for the collection of
+undefended claims. Except in this class of cases, agreements between
+counsel and client that the compensation of the former shall depend upon
+final success in the lawsuit--in other words contingent fees--however
+common such agreements may be, are of a very dangerous tendency, and to
+be declined in all ordinary cases. In making his charge, after the
+business committed to him has been completed, as an attorney may well
+take into consideration the general ability of his client to pay, so he
+may also consider the pecuniary benefit, which may have been derived
+from his services. For a poor man, who is unable to pay at all, there
+may be a general understanding that the attorney is to be liberally
+compensated in case of success. What is objected to, is an agreement to
+receive a certain part or proportion of the sum, or subject-matter, in
+the event of a recovery, and nothing otherwise.
+
+It is unnecessary to inquire here whether such a contract is void as
+champertous, and contrary to public policy. None of the English statutes
+on the subject of champerty have been reported as in force here; but it
+was once a question whether it was not an offence at common law,
+independently altogether, of any statute enactment. Enlightened judges
+in several of our sister States have so considered it. "The purchase of
+a lawsuit," says Chancellor Kent, "by an attorney, is champerty in its
+most odious form; and it ought equally to be condemned on principles of
+public policy. It would lead to fraud, oppression, and corruption. As a
+sworn minister of the courts of justice, the attorney ought not to be
+permitted to avail himself of the knowledge he acquires in his
+professional character, to speculate in lawsuits. The precedent would
+tend to corrupt the profession, and produce lasting mischief to the
+community."[48] "This is not the time nor place," says Chief Justice
+Gibson, "to discuss the legality of contingent fees; though it be clear
+that if the British statutes of champerty were in force here, such fees
+would be prohibited by them. But a contract of the sort is certainly not
+to be encouraged by implication, from a questionable usage, nor
+established by less than a positive stipulation."[49] A contract to
+allow a compensation for services in procuring the passage of a private
+Act of Assembly, has been held to be unlawful and void, as against
+public policy.[50] "The practice," said Judge Rogers, in delivering the
+opinion of the court, "which has generally obtained in this State, to
+allow a contingent compensation for legal services, has been a subject
+of regret; nor am I aware of any direct decision by which the practice
+has received judicial sanction in our courts." The case of _Ex parte
+Plitt_,[51] however, recognizes fully the lawfulness of contingent fees,
+though in his opinion Judge Kane says: "It is not a practice to be
+generally commended, exposing honorable men not unfrequently to
+misapprehension and illiberal remark, and giving the apparent sanction
+of their example to conduct, which they would be among the foremost to
+reprehend. Such contracts may sometimes be necessary in a community such
+as that of Pennsylvania has been, and perhaps as it is yet; and when
+they have been made in abundant good faith--_uberrima fide_--without
+suppression or reserve of fact or exaggeration of apprehended
+difficulties, or under influence of any sort or degree; and when the
+compensation bargained for is absolutely just and fair, so that the
+transaction is characterized throughout by 'all good fidelity to the
+client,' the court will hold such contracts to be valid. But it is
+unnecessary to say, that such contracts, as they can scarcely be
+excepted from the general rule, which denounces as suspicious the
+dealings of fiduciaries with those under their protection, must undergo
+the most exact and jealous scrutiny before they can expect the judicial
+ratification." Finally, the question of law may be considered as at rest
+in Pennsylvania by the decision of the Supreme Court in Patten _v._
+Wilson,[52] which recognized an agreement between counsel and client to
+pay him out of the verdict as an equitable assignment, and gave effect
+to it as against an attaching creditor.
+
+It is not, however, with the lawfulness, but with the policy and
+morality of the practice, that we are now dealing. Admitting its
+legality, is it consistent with that high standard of moral excellence,
+which the members of this profession should ever propose to themselves?
+
+Let us look at what would be the results of such a practice, if it
+became general. If these are bad, if its tendency is to corrupt and
+degrade the character of the profession, then, however confident any man
+may feel in his moral power to ward off its evil influences from his own
+character and conduct, he should be careful not to encourage and give
+countenance to it by his example.
+
+It is one of that class of actions, which in particular instances may be
+indifferent; but their morality is to be tested by considering what
+would be the consequences of their general prevalence.
+
+It is to be observed, then, that such a contract changes entirely the
+relation of counsel, to the cause. It reduces him from his high position
+of an officer of the court and a minister of justice, to that of a party
+litigating his own claim. Having now a deep personal interest in the
+event of the controversy, he will cease to consider himself subject to
+the ordinary rules of professional conduct. He is tempted to make
+success, at all hazards and by all means, the sole end of his exertions.
+He becomes blind to the merits of the case, and would find it difficult
+to persuade himself, no matter what state of facts might be developed in
+the progress of the proceedings, as to the true character of the
+transaction, that it was his duty to retire from it.
+
+It places his client and himself in a new and dangerous relation. They
+are no longer attorney and client, but partners. He has now an interest,
+which gives him a right to speak as principal, not merely to advise as
+to the law, and abide by instructions. It is either unfair to him or
+unfair to the client. If he thinks the result doubtful, he throws all
+his time, learning, and skill away upon what, in his estimation, is an
+uncertain chance. He cannot work with the proper spirit in such a case.
+If he believes that the result will be success, he secures in this way a
+higher compensation than he is justly entitled to receive.
+
+It is an undue encouragement to litigation. Men, who would not think of
+entering on a lawsuit, if they knew that they must compensate their
+lawyer whether they win or lose, are ready upon such a contingent
+agreement to try their chances with any kind of a claim. It makes the
+law more of a lottery than it is.
+
+The worst consequence is yet to be told,--its effect upon, professional
+character. It turns lawyers into higglers with their clients. Of course
+it is not meant that these are always its actual results; but they are
+its inevitable tendencies,--in many instances its practical working. To
+drive a favorable bargain with the suitor in the first place, the
+difficulties of the case are magnified and multiplied, and advantage
+taken of that very confidence, which led him to intrust his interests to
+the protection of the advocate.[53] The parties are necessarily not on
+an equal footing in making such a bargain. A high sense of honor may
+prevent counsel from abusing his position and knowledge; but all have
+not such high and nice sense of honor. If our example goes towards
+making the practice of agreements for contingent fees general, we assist
+in placing such temptations in the way of our professional brethren of
+all degrees--the young, the inexperienced, and the unwary, as well as
+those whose age and experience have taught them that a lawyer's honor is
+his brightest jewel, and to be guarded from being sullied, even by the
+breath of suspicion, with the most sedulous care.
+
+A gentleman of the largest experience and highest character for
+integrity and learning at the Philadelphia Bar, thus strongly confirms
+the views which have been here expressed on the subject of contingent
+fees: "And further," says Mr. Price in his concluding advice to
+students, at the close of his Essay on Limitation and Lien, "permit me
+to advise and earnestly to admonish you, for the preservation of
+professional honor and integrity, to avoid the temptation of bargaining
+for fees or shares of any estate or other claim, contingent upon a
+successful recovery. The practice directly leads to a disturbance of the
+peace of society and to an infidelity to the professional obligation
+promised to the court, in which is implied an absence of desire or
+effort of one in the ministry of the Temple of Justice, to obtain a
+success that is not just as well as lawful. It is true, as a just
+equivalent for many cases honorably advocated and incompetently paid by
+the poor, a compensation may and will be received, the more liberal
+because of the ability produced by success; but let it be the result of
+no bargain, exacted as a price before the service is rendered, but
+rather the grateful return for benefits already conferred. If rigid in
+your terms, in protection of the right of the profession to a just and
+honorable compensation, let it rather be in the amount of the required
+retainer, when it will have its proper influence in the discouragement
+of litigation."
+
+A lawyer should avoid, as far as possible, all transactions of business
+with his clients, not only in regard to matters in suit in his hands,
+but in relation to other matters. He should avoid standing toward them,
+either in the relation of borrower or lender. A young practitioner
+should especially avoid borrowing of any one. Let him retrench, seek the
+humblest employment of drudgery rather than do it; but, if borrow he
+must, let it be of any one else than a client. All transactions of
+business between attorney and client are looked upon with eyes of
+suspicion and disfavor, in courts of justice.
+
+It is a settled doctrine of equity, in England, that an attorney cannot,
+while the business is unfinished in which he had been employed, receive
+any gift from his client, or bind his client in any mode to make him
+greater compensation for his services than he would have a right to
+demand if no contract should be made during the relation. If an attorney
+accept a gift from one thus connected with him, it may be recovered in a
+court of chancery, by the donor or his creditors, should it be necessary
+for them to assert a right to it to satisfy their demands. When the
+relation of solicitor and client exists, and a security is taken by the
+solicitor from his client, the presumption is that the transaction is
+unfair; and the onus of proving its fairness is upon the solicitor.[54]
+A man ought to be very careful of placing himself in a position to have
+any of his transactions regarded in that light. If it should ever come
+to be canvassed in court, the bandying of the phrases, fraud and
+presumption of fraud, as applied to him, may, and probably will, have an
+unfavorable effect on his reputation. Most emphatically should it be
+said, let nothing tempt him, not even the knowledge and consent of the
+client, to keep the money, which may have come to his hands
+professionally, one single instant longer than is absolutely necessary.
+The consequences of any difficulty arising upon this head, will be fatal
+to his professional character and prospects.
+
+The official oath, to which reference has already more than once been
+made, obliges the attorney "to use no falsehood." It seems scarcely
+necessary to enforce this topic. Truth in all its simplicity--truth to
+the court, client, and adversary--should be indeed the polar star of the
+lawyer. The influence of only slight deviations from truth, upon
+professional character, is very observable. A man may as well be
+detected in a great as a little lie. A single discovery, among
+professional brethren, of a failure of truthfulness, makes a man the
+object of distrust, subjects him to constant mortification, and soon
+this want of confidence extends itself beyond the Bar to those who
+employ the Bar. That lawyer's case is truly pitiable, upon the
+escutcheon of whose honesty or truth, rests the slightest tarnish.
+
+Let it be remembered and treasured in the heart of every student, that
+no man can ever be a truly great lawyer, who is not in every sense of
+the word, a good man. A lawyer, without the most sterling integrity, may
+shine for a while with meteoric splendor; but his light will soon go out
+in blackness of darkness. It is not in every man's power to rise to
+eminence by distinguished abilities. It is in every man's power, with
+few exceptions, to attain respectability, competence, and usefulness.
+The temptations which beset a young man in the outset of his
+professional life, especially if he is in absolute dependence upon
+business for his subsistence, are very great. The strictest principles
+of integrity and honor, are his only safety. Let him begin by swerving
+from truth or fairness, in small particulars, he will find his character
+gone--whispered away, before he knows it. Such an one may not indeed be
+irrecoverably lost; but it will be years before he will be able to
+regain a firm foothold. There is no profession, in which moral character
+is so soon fixed, as in that of the law; there is none in which it is
+subjected to severer scrutiny by the public. It is well, that it is so.
+The things we hold dearest on earth,--our fortunes, reputations,
+domestic peace, the future of those dearest to us, nay, our liberty and
+life itself, we confide to the integrity of our legal counsellors and
+advocates. Their character must be not only without a stain, but without
+suspicion. From the very commencement of a lawyer's career, let him
+cultivate, above all things, truth, simplicity, and candor: they are the
+cardinal virtues of a lawyer. Let him always seek to have a clear
+understanding of his object: be sure it is honest and right, and then
+march directly to it. The covert, indirect, and insidious way of doing
+anything, is always the wrong way. It gradually hardens the moral
+faculties, renders obtuse the perception of right and wrong in human
+actions, weighs everything in the balances of worldly policy, and ends
+most generally, in the practical adoption of the vile maxim, "that the
+end sanctifies the means." If it be true, as he has said, who, more than
+any mere man, before or since his day, understood the depths of human
+character, that one even may,
+
+                  "By telling of it,
+    Make such a sinner of his memory;
+    To credit his own lie:"--
+
+we should be careful never to speak or act, without regard to the
+_morale_ of our words or actions. A habit may and will grow to be a
+second nature.
+
+   "That monster, custom, who all sense doth eat,
+    Of habit's devil, is angel yet in this:
+    That to the use of actions fair and good
+    He likewise gives a frock or livery
+    That aptly is put on."
+
+There is no class of men among whom moral delinquency is more marked and
+disgraceful than among lawyers. Among merchants, so many honest men
+become involved through misfortune, that the rogue may hope to take
+shelter in the crowd, and be screened from observation. Not so the
+lawyer. If he continues to seek business, he must find his employment in
+lower and still lower grades; and will soon come to verify and
+illustrate the remark of Lord Bolingbroke, that "the profession of the
+law, in its nature the noblest and most beneficial to mankind, is in its
+abuse and abasement, the most sordid and pernicious."
+
+While such are the depths to which a lawyer may sink, look, on the other
+hand, at the noble eminence of honor, usefulness, and virtue, to which
+he may rise. Where is the profession, which, in this world, holds out
+brighter rewards? Genius, indeed, will leave its mark in whatever sphere
+it may move. But learning, industry, and integrity, stand nowhere on
+safer or higher ground, than in the walks of the law. In all free
+countries, it is the avenue not only to wealth, but to political
+influence and distinction. In England, a large proportion of the house
+of peers, owe their seats and dignities, as well as their possessions,
+either to their own professional success, or to that of some one of
+their ancestors.[55] In this country, all our Presidents but three, have
+been educated to the Bar. Of the men who have distinguished themselves
+in the cabinet, in the halls of legislation, and in foreign diplomacy,
+how large is the proportion of lawyers! How powerful has always been the
+profession in guiding the popular mind, in forming that greatest of all
+counterchecks to bad laws and bad administration,--public opinion! It is
+the school of eloquence--that, which more than all else besides, has
+swayed, still sways, and always will sway, the destinies of free
+peoples. Let a man, to the possession of this noble faculty, add the
+high character of purity and justice, integrity and honor, and where are
+to be found the limits of his moral power over his fellow-citizens?[56]
+It is well to read carefully and frequently, the biographies of eminent
+lawyers. It is good to rise from the perusal of the studies and labors,
+the trials and conflicts, the difficulties and triumphs, of such men, in
+the actual battle of life, with the secret feeling of dissatisfaction
+with ourselves. Such a sadness in the bosom of a young student, is like
+the tears of Thucydides, when he heard Herodotus read his history at the
+Olympic Games, and receive the plaudits of assembled Greece. It is the
+natural prelude to severer self-denial, to more assiduous study, to more
+self-sustaining confidence. Some one has recommended that Middleton's
+Life of Cicero should be perused, at frequent intervals, as the vivid
+picture of a truly great mind, in the midst of the most stirring scenes,
+ever intent upon its own cultivation and advancement, as its only true
+glory; and that in effect sketched by his own master hand.[57] The
+autobiography of Edward Gibbon will rouse an ambitious student like the
+sound of a trumpet. But of English biographies, there is no one, it
+occurs to me, better adapted to the purpose mentioned, than the Life of
+Sir William Jones, by Lord Teignmouth. It exhibits the wonders, which
+unremitted study, upheld by the pure and noble ambition of doing good,
+can accomplish in the space of a short life. He was a man of the most
+varied knowledge. An extensive and indeed extraordinary acquaintance
+with ancient and modern languages, was perhaps his chief accomplishment.
+Although he engaged very late in life in the study of the law, such was
+his industry and success, that he soon occupied the highest judicial
+station, in British India; and the profession are indebted to his pen,
+for one of the most beautiful of the elementary treatises, which adorn
+the lawyer's library. "In his early days," says his biographer, "he
+seems to have entered upon his career of study, with this maxim strongly
+impressed upon his mind, that whatever had been attained, was attainable
+by him; and it has been remarked, that he never neglected nor overlooked
+any opportunity of improving his intellectual faculties, or of acquiring
+esteemed accomplishments." Notwithstanding his numerous occupations at
+the Bar at home, the onerous duties of his station in India, and his
+premature death, before he had attained his forty-eighth year, he has
+left behind many learned works, which illustrate Oriental languages and
+history, and attest the extent of his labors and acquisitions. Indeed,
+it might be regarded as impossible, were we not informed of the regular
+allotment which he made of his time to particular occupations, and his
+scrupulous adherence to the distribution he had thus made. The moral
+character of this eminent man, was no less exemplary. It is the
+testimony of one of his contemporaries: "He had more virtues and less
+faults, than I ever yet knew in any human being; and the goodness of his
+head, admirable as it was, was exceeded by that of his heart." His own
+measure of true greatness, humanly speaking, he has left behind him, in
+very emphatic words: "If I am asked, who is the greatest man? I answer,
+the best. And if I am required to say, who is the best? I reply, he that
+has deserved most of his fellow-creatures."[58]
+
+This department of English literature has been recently much enriched
+by the labors of the present Lord High Chancellor of England, Lord
+Campbell. In America we have a few well written and instructive legal
+biographies, among which ought especially to be named, Mr. Wheaton's
+Life of William Pinkney, and Professor Parsons' interesting Memoir of
+his distinguished father, Chief Justice Parsons. Mr. Binney, at the
+close of his honored and honorable life, is paying the debt, which every
+man owes to his profession, in animated spirit-stirring sketches of his
+great and good contemporaries. How forcibly does this distinguished
+jurist illustrate the remark of Cicero in his Treatise on Old Age: "Sed
+videtis, ut senectus non modo languida atque iners non sit, verum etiam
+sit operosa, et semper agens aliquid et moliens; tale scilicet, quod
+cujusque studium in superiore vita fuit." What a noble example might be
+held up, in the life and character of Chief Justice Marshall! His
+biography, while it will be the record of active patriotism and
+humanity, will exhibit a course of arduous self-training, for the great
+conflicts of opinion, in which it was his lot afterwards to appear, with
+so much lustre. He had not the usual advantages of a collegiate
+education. The war of the Revolution, in which his ardent love of
+country, and of the principles of rational liberty, led him to enlist,
+and where he distinguished himself in the field, materially interfered
+with, and retarded his earlier professional studies; yet, the lofty
+eminence to which he attained in the opinion of his compatriots, even of
+those who could not concur in some of his views of the Constitution, the
+enduring monuments of his greatness in the decisions of the Supreme
+Court of the United States, bespeak an intellect of the very first
+order, mental power naturally vigorous, but brought, by proper exercise,
+to a degree of strength that made it tower above the general level of
+educated men. His opinions do not abound in displays of learning. His
+simplicity, a character so conspicuous in all his writings and
+actions--that first and highest characteristic of true greatness--led
+him to say and do just what was necessary and proper to the purpose in
+hand. Its reflected consequences on his own fame as a scholar, a
+statesman, or a jurist, seem never once to have occurred to him. As a
+judge, the Old World may be fairly challenged to produce his superior.
+His style is a model--simple and masculine. His reasoning--direct,
+cogent, demonstrative, advancing with a giant's pace and power, and yet
+withal so easy evidently to him, as to show clearly, a mind in the
+constant habit of such strong efforts. Though he filled for so many
+years the highest judicial position in this country, how much was his
+walk like the quiet and unobtrusive step of a private citizen, conscious
+of heavy responsibilities, and anxious to fulfil them; but unaware that
+the eyes of a nation--of many nations--were upon him! There was around
+him none of the glare, which dazzles; but he was clothed in that pure
+mellow light of declining evening, upon which we love to look. Where is
+the trust to society more sacred, where are duties more important, or
+consequences more extended, for individual or social weal or woe, than
+those which attach to the office he held? How apt, and aptly said, is
+that prayer of Wolsey, when he is informed of the promotion of Sir
+Thomas More to the place of Lord Chancellor:
+
+                  "May he ... do justice,
+    For truth's sake and his conscience; that his bones,
+    When he has run his course, and sleeps in blessings,
+    May have a tomb of orphans' tears wept on him."
+
+It is surely a just subject of national, as well as professional pride,
+that an American lawyer can thus, pointing to the example of such a man
+as JOHN MARSHALL, hold up his character, his reputation, his usefulness,
+his greatness, as incentives to high and honorable ambition; and
+especially, his life of unblemished virtue, and single-hearted
+purity,--after all, his highest praise, for, as old Shirley says,
+
+   "When our souls shall leave this dwelling,
+    The glory of one fair and virtuous action
+    Is above all the scutcheons on our tomb."
+
+Is it possible that a being so fearfully and wonderfully made as man,
+and animated by a spirit still more fearful and incomprehensible, was
+created for the brief term of a few revolutions of the planet he lives
+on? Shall his own physical and intellectual productions so long survive
+him? The massive piles of Egypt have endured for thousands of years:
+fluted column and sculptured architrave have stood for generations,
+monuments of his labor and skill. A poem of Homer, an oration of
+Demosthenes, an ode of Horace, a letter of Cicero, carry down to the
+remotest posterity the memorial of their names. Men found empires,
+establish constitutions, promulgate codes of laws; there have been
+Solons, Alexanders, Justinians, and Napoleons. There have been those
+justly called Fathers of their country, and benefactors of their race.
+Have they, too, sunk to become clods of the valley? The mind, which can
+look so far before and after--can subdue to its mastery the savages of
+the forests, and the fiercer elements of Nature--can stamp the creation
+of its genius upon the living canvas, or the almost breathing, speaking
+marble--can marshal the invisible vibrations of air into soul-stirring
+or soul-subduing music--can pour forth an eloquence of words, with magic
+power to lash the passions of many hearts into a raging whirlwind, or
+command them with a "peace, be still"--can make a book, a little book,
+which shall outlive pyramids and temples, cities and empires--can
+perceive and love beauty, in all its forms, and above all, moral beauty,
+and God, the infinite perfection of moral beauty,--no, this mind can
+never die. Its moral progress must go on in an unending existence, of
+which its life of fourscore years on earth is scarce the childhood. Let
+us beware then of raising these objects of ambition, wealth, learning,
+honor, and influence, worthy though they be, into an undue importance;
+nor in the too ardent pursuit of what are only means, lose sight of the
+great end of our being.
+
+
+
+
+APPENDIX.
+
+
+
+
+No. I.
+
+COURVOISIER'S CASE[59]
+
+
+On Tuesday night, May 5th, 1840, Lord William Russell, infirm, deaf, and
+aged, being in his seventy-third year, was murdered in his bed. He was a
+widower, living at No. 14 Norfolk Street, Park Lane, London, a small
+house, occupied by only himself and three servants,--Courvoisier, a
+young Swiss valet, and two women, a cook and house-maid. The evidence
+was of a character to show very clearly that the crime had been
+committed by some one in the house; but, Courvoisier's behavior
+throughout had been that of an innocent man. Two examinations of his
+trunk, by the officers of the police, showed nothing suspicious; rewards
+having been offered by the government and family of the deceased; for
+the detection of the criminal, a third examination was made of
+Courvoisier's box, which resulted in the discovery of a pair of white
+cotton gloves, two pocket handkerchiefs, and a shirt-front, stained with
+blood. The prisoner's counsel went to the trial with a full persuasion
+of his innocence, and conducted the cross-examination closely and
+zealously, especially of Sarah Mancer, one of the female domestics, with
+a view of showing that there was as much probability that the witness or
+the other domestic was the criminal as the prisoner; and that the
+police, incited by the hopes of the large rewards offered, had conspired
+to fasten the suspicion unjustly on him. At the close of the first day's
+proceedings, the prosecutors were placed unexpectedly in possession of a
+new and important item of evidence: the discovery of the plate of the
+deceased, which was missed, and that it had been left by the prisoner,
+at the place where it was found, about a week, perhaps only a very few
+days, before the committing of the murder. The parcel contained silver
+spoons, forks, a pair of gold auricles, all unquestionably the property
+of the unfortunate nobleman; and the only question remaining was,
+whether Courvoisier was the person who had so left it. If he were, it
+would, of course, grievously for him, increase the _probabilities_ that
+it must have been he who subsequently committed the murder, and with the
+object of plunder. On the ensuing morning, the person who had made this
+discovery (Mrs. Piolaine, the wife of a Frenchman, who kept a place of
+entertainment, called L'Hotel de Dieppe, in Leicester Place, Leicester
+Square), was shown a number of prisoners in the prison-yard, one of whom
+was Courvoisier, whom she instantly recognized as the person who had
+left the plate with her, and also had formerly lived in her employ.
+Courvoisier also suddenly recognized her, and with dismay. The immediate
+effect of his panic was the confession of his guilt to his counsel at
+the bar of the court, a few minutes afterwards, coupled with his desire,
+nevertheless, to be defended to the utmost. His probable object was
+simply to prepare his counsel against the forthcoming evidence. The
+prisoner was convicted, and afterwards confessed his crime. Mr.
+Phillips's conduct of the defence was criticized at the time, in the
+columns of the Examiner, but he suffered it to pass in silence. In 1849,
+that periodical renewed the accusation originally made, upon which the
+following correspondence appeared in the London Times of Nov. 20th,
+1849.
+
+
+TO THE EDITOR OF THE "TIMES."
+
+SIR,--I shall esteem it a great favor if you will allow the accompanying
+documents to appear in the "Times." Its universal circulation affords me
+an opportunity of annihilating a calumny recently revived, which has for
+nine years harassed my friends far more than myself.
+
+                                       I am, &c.,
+                                           CHARLES PHILLIPS.
+39 Gordon Square.
+
+
+                                            INNER TEMPLE, Nov. 14, 1849.
+
+MY DEAR PHILLIPS,--It was with pain that I heard yesterday of an
+accusation having been revived against you in the "Examiner" newspaper,
+respecting alleged dishonorable and most unconscientious conduct on your
+part, when defending Courvoisier against the charge of having murdered
+Lord William Russell. Considering that you fill a responsible judicial
+office, and have to leave behind you a name unsullied by any blot or
+stain, I think you ought to lose no time in offering, as I believe you
+can truly do, a public and peremptory contradiction to the allegations
+in question. The mere circumstances of your having been twice promoted
+to judicial office by two lord chancellors, Lord Lyndhurst and Lord
+Brougham, since the circulation of the reports to which I am alluding,
+and after those reports had been called to the attention of at least one
+of those noble and learned lords, is sufficient evidence of the
+groundlessness of such reports.
+
+Some time ago I was dining with Lord Denman, when I mentioned to him the
+report in question. His lordship immediately stated that he had inquired
+into the matter, and found the charge to be utterly unfounded; that he
+had spoken on the subject to Mr. Baron Parke, who had sat on the Bench
+beside Chief Justice Tindal, who tried Courvoisier, and that Baron Parke
+told him he had, for reasons of his own, most carefully watched every
+word that you uttered, and assured Lord Denman that your address was
+perfectly unexceptionable, and that you made no such statements as were
+subsequently attributed to you.
+
+Lord Denman told me that I was at liberty to mention this fact to any
+one; and expressed in noble and generous terms his concern at the
+existence of such serious and unfounded imputations upon your character
+and honor.
+
+Both Lord Denman and Baron Parke are men of as nice a sense of honor and
+as high a degree of consciousness as it is possible to conceive; and I
+think the testimony of two such distinguished judges ought to be
+publicly known, to extinguish every kind of suspicion on the subject.
+
+I write this letter to you spontaneously, and, hoping that you will
+forgive the earnestness with which I entreat you to act upon my
+suggestion, believe me ever yours sincerely,
+
+                                                    SAMUEL WARREN.
+MR. COMMISSIONER PHILLIPS.
+
+
+                                              39 GORDON SQUARE, Nov. 20.
+
+MY DEAR WARREN,--Your truly kind letter induces me to break the
+contemptuous silence, with which for nine years I have treated the
+calumnies, to which you allude. I am the more induced to this by the
+representations of some valued friends, that many honorable minds begin
+to believe the slander because of its repetition without receiving a
+contradiction. It is with disgust and disdain, however, that even thus
+solicited I stoop to notice inventions too abominable, I had hoped, for
+any honest man to have believed. The conduct of Lord Denman is in every
+respect characteristic of his noble nature. Too just to condemn without
+proof, he investigates the facts, and defends the innocent. His
+deliberate opinion is valuable indeed, because proceeding from one who
+is invaluable himself. My judicial appointments by the noblemen you
+mention would have entailed on them a fearful responsibility, had there
+been any truth in the accusations of which they must have been
+cognizant. I had no interest whatever with either of these chancellors,
+save that derived from their knowledge of my character, and their
+observation of my conduct. It is now five-and-twenty years ago since
+Lord Lyndhurst, when I had no friend here, voluntarily tendered me his
+favor and his influence, and his kindness to me remains to this day
+unabated. Of Lord Brougham, my ever warm and devoted friend, I forbear
+to speak, because words cannot express my affection or my gratitude. His
+friendship has soothed some affliction and enhanced every pleasure, and
+while memory lasts will remain the proudest of its recollections and the
+most precious of its treasures. This is no vain-glorious vaunting. The
+unabated kindness of three of the greatest men, who ever adorned the
+Bench, ought, in itself, to be a sufficient answer to my traducers. Such
+men as these would scarcely have given their countenance to one, who, if
+what were said of him were true, deserved their condemnation. I am not
+disposed, however, though I might be well warranted in doing so, to
+shelter myself under the authority of names, no matter how illustrious.
+I give to each and all of these charges a solemn and indignant
+contradiction, and I will now proceed to their refutation. The charges
+are threefold, and I shall discuss them _seriatim_.
+
+First, I am accused of having retained Courvoisier's brief after having
+heard his confession. It is right that I should relate the manner of
+that confession, as it has been somewhat misapprehended. Many suppose it
+was made to me alone, and made in the prison. I never was in the prison
+since I was called to the Bar, and but once before, being invited to see
+it by the then sheriffs. So strict is this rule, that the late Mr.
+Fauntleroy solicited a consultation there in vain with his other counsel
+and myself. It was on the second morning of the trial, just before the
+judges entered, that Courvoisier, standing publicly in front of the
+dock, solicited an interview with his counsel. My excellent friend and
+colleague, Mr. Clarkson, and myself immediately approached him. I beg of
+you to mark the presence of Mr. Clarkson, as it will become very
+material presently. Up to this morning I believed most firmly in his
+innocence, and so did many others as well as myself. "I have sent for
+you, gentlemen," said he, "to tell you I committed the murder!" When I
+could speak, which was not immediately, I said, "Of course then you are
+going to plead guilty?"--"No, sir," was the reply, "I expect you to
+defend me to the utmost." We returned to our seats. My position at this
+moment was, I believe, without parallel in the annals of the profession.
+I at once came to the resolution of abandoning the case, and so I told
+my colleague. He strongly and urgently remonstrated against it, but in
+vain. At last he suggested our obtaining the opinion of the learned
+judge, who was not trying the cause, upon what he considered to be the
+professional etiquette under circumstances so embarrassing. In this I
+very willingly acquiesced. We obtained an interview, and Mr. Baron
+Parke requested to know distinctly whether the prisoner insisted on my
+defending him, and, on hearing that he did, said, I was bound to do so,
+and to use all fair arguments arising on the evidence. I therefore
+retained the brief, and I contend for it, that every argument I used was
+a fair commentary on the evidence, though undoubtedly as strong as I
+could make them. I believe there is no difference of opinion now in the
+profession that this course was right. It was not until after eight
+hours' public exertion before the jury that the prisoner confessed; and
+to have abandoned him then would have been virtually surrendering him to
+death. This is my answer to the first charge.
+
+I am accused, secondly, of having "appealed to Heaven as to my belief in
+Courvoisier's innocence," after he had made me acquainted with his
+guilt. A grievous accusation! But it is false as it is foul, and carries
+its own refutation on its face. It is with difficulty I restrain the
+expression of my indignation; but respect for my station forbids me to
+characterize this slander as it deserves. It will not bear one moment's
+analysis. It is an utter impossibility under the circumstances. What!
+appeal to Heaven for its testimony to a lie, and not expect to be
+answered by its lightning? What! make such an appeal, conscious that an
+honorable colleague sat beside me, whose valued friendship I must have
+forever forfeited? But above all and beyond all, and too monstrous for
+belief, would I have dared to utter that falsehood in the very presence
+of the judge to whom, but the day before, I had confided the reality!
+There, upon the Bench above me, sat that time-honored man--that upright
+magistrate, pure as his ermine, "narrowly watching" every word I said.
+Had I dared to make an appeal so horrible and so impious--had I dared so
+to outrage his nature and my own conscience, he would have started from
+his seat and withered me with a glance. No, Warren, I never made such an
+appeal; it is a malignant untruth, and sure I am, had the person who
+coined it but known what had previously occurred, he never would have
+uttered from his libel mint so very clumsy and self-proclaiming a
+counterfeit. So far for the verisimilitude of this-charge. But I will
+not rest either on improbability, or argument, or even denial. I have a
+better and a conclusive answer. The trial terminated on Saturday
+evening. On Sunday I was shown in a newspaper the passage imputed to me.
+I took the paper to court on Monday, and, in the aldermen's room, before
+all assembled, after reading the paragraph aloud, I thus addressed the
+judges:--"I take the very first opportunity which offers, my lords, of
+most respectfully inquiring of you whether I ever used any such
+expression?"--"You certainly did not, Phillips," was the reply of the
+late lamented Lord Chief Justice, "and I will be your vouchee whenever
+you choose to call me,"--"And I," said Mr. Baron Parke, happily still
+spared to us, "had a reason, which the Lord Chief Justice did not know,
+for watching you narrowly, and he will remember my saying to him, when
+you sat down, 'Brother Tindal, did you observe how carefully Phillips
+abstained from giving any personal opinion in the case?' To this the
+learned Chief Justice instantly assented." This is my answer to the
+second charge.
+
+Thirdly, and lastly, I am accused of having endeavored to cast upon the
+female servants the guilt, which I knew was attributable to Courvoisier.
+You will observe, of course, that the gravamen of this consists in my
+having done so after the confession. The answer to this is obvious.
+Courvoisier did not confess till Friday: the cross-examination took
+place the day before, and so far, therefore, the accusation is disposed
+of. But it may be said I did so in my address to the jury. Before
+refuting this let me observe upon the disheartening circumstances under
+which that address was delivered. At the close of the, to me, most
+wretched day on which the confession was made, the prisoner sent me this
+astounding message by his solicitor: "Tell Mr. Phillips, my counsel,
+that I consider he has my life in his hands." My answer was, that as he
+must be present himself, he would have an opportunity of seeing whether
+I deserted him or not. I was to speak on the next morning. But what a
+night preceded it! Fevered and horror-stricken, I could find no repose.
+If I slumbered for a moment, the murderer's form arose before me,
+scaring sleep away, now muttering his awful crime, and now shrieking to
+me to save his life! I did try to save it. I did everything to save it,
+except that which is imputed to me, but that I did not, and I will prove
+it. I have since pondered much upon this subject, and I am satisfied
+that my original impression was erroneous. I had no right to throw up my
+brief, and turn traitor to the wretch, wretch though he was, who had
+confided in me. The counsel for a prisoner has no option. The moment he
+accepts his brief, every faculty he possesses becomes his client's
+property. It is an implied contract between him and the man who trusts
+him. Out of the profession this may be a moot point, but it was asserted
+and acted on by two illustrious advocates of our own day, even to the
+confronting of a king, and, to the regal honor be it spoken, these
+dauntless men were afterwards promoted to the highest dignities.
+
+You will ask me here whether I contend on this principle for the right
+of doing that of which I am accused, namely, casting the guilt upon the
+innocent? I do no such thing; and I deny the imputation altogether. You
+will still bear in mind what I have said before, that I scarcely could
+have dared to do so under the eye of Baron Parke and in the presence of
+Mr. Clarkson. To act so, I must have been insane. But to set this matter
+at rest, I have referred to my address as reported in the "Times"--a
+journal the fidelity of whose reports was never questioned. You will be
+amazed to hear that I not only did not do that of which I am accused;
+but that I did the very reverse. Fearing that, nervous and unstrung as I
+was, I might do any injustice in the course of a lengthened speech, by
+even an ambiguous expression, I find these words reported in the
+"Times,"--"Mr. Phillips said the prosecutors were bound to prove the
+guilt of the prisoner, not by inference, by reasoning, by such subtile
+and refined ingenuity as had been used, but by downright, clear, open,
+palpable demonstration. How did they seek to do this? What said Mr.
+Adolphus and his witness, Sarah Mancer? And here he would beg the jury
+not to suppose for a moment, in the course of the narrative with which
+he must trouble them, that he meant to cast the crime upon either of the
+female servants. It was not at all necessary to his case to do so. It
+was neither his interest, his duty, nor his policy, to do so. God forbid
+that any breath of his should send tainted into the world persons
+depending for their subsistence on their character." Surely this ought
+to be sufficient. I cannot allude, however, to this giant of the press,
+whose might can make or unmake a reputation, without gratefully
+acknowledging that it never lent its great circulation to these libels.
+It had too much justice. The "Morning Chronicle," the "Morning Herald,"
+and the "Morning Post," the only journals to which I have access, fully
+corroborated the "Times," if, indeed, such a journal needed
+corroboration. The "Chronicle" runs thus:--"In the first place, says my
+friend Mr. Adolphus, and says his witness Sarah Mancer--and here I beg
+to do an act of justice, and to assure you that I do not for a moment
+mean to suggest in the whole course of my narrative that this crime may
+have been committed by the female servants of the deceased nobleman."
+"The Morning Post" runs thus: "Mr. Adolphus called a witness, Sarah
+Mancer. But let me do myself justice, and others justice, by now
+stating, that in the whole course of my narrative with which I must
+trouble you, I beg you would not suppose that I am in the least degree
+seeking to cast the crime upon any of the witnesses. God forbid that any
+breath of mine should send persons depending on the public for
+subsistence into the world with a tainted character." I find the
+"Morning Herald" reporting me as follows: "Mr. Adolphus called a witness
+named Sarah Mancer. But let me do myself justice and others justice by
+now stating that in the whole course of the narrative with which I must
+trouble you, I must beg that you will not suppose that I am in the least
+degree seeking to cast blame upon any of the witnesses." Can any
+disclaimer be more complete? And yet, in the face of this, for nine
+successive years has this most unscrupulous of slanderers reiterated his
+charge. Not quite three weeks ago he recurs to it in these terms: "How
+much worse was the attempt of Mr. Phillips to throw the suspicion of the
+murder of Lord William Russell on the innocent female servants, in order
+to procure the acquittal of his client Courvoisier, of whose guilt he
+was cognizant?" I have read with care the whole report in the "Times" of
+that three hours' speech, and I do not find a passage to give this
+charge countenance. But surely, surely, in the agitated state in which I
+was, had even an ambiguous expression dropped from me, the above broad
+disclaimer would have been its efficient antidote.
+
+Such is my answer to the last charge; and, come what will, it shall be
+my final answer. No envenomed reiteration, no popular delusion, no
+importunity of friendship, shall ever draw from me another syllable. I
+shall remain in future, as I have been heretofore, _auditor tantum_. You
+know well how strenuously and how repeatedly you pressed me to my
+vindication, especially after Lord Denman's important conversation with
+you, and you know the stern disdain with which I dissented. The _mens
+conscia recti_, a thorough contempt for my traducer, the belief that
+truth would in the end prevail, and a self-humiliation at stooping to a
+defence, amply sustained me amid the almost national outcry which
+calumny had created. Relying doubtless upon this, month after month, for
+nine successive years, my accuser has iterated and reiterated his libels
+in terms so gross, so vulgar, and so disgraceful, that my most valued
+friends thought it my duty to them publicly to refute them. To that
+consideration, and to that alone, I have yielded; in deference to
+theirs, relinquishing my own opinions. If they suppose, however, that
+slander, because answered, will be silenced, they will find themselves
+mistaken.
+
+    Destroy the web of sophistry--in vain--
+    The creature's at his dirty work again.
+
+No, no, my dear friend, invention is a libeller's exhaustless capital,
+and refutation but supplies the food on which he lives. He may, however,
+pursue his vocation undisturbed by me. His libels and my answer are now
+before the world, and I leave them to the judgment of all honorable men.
+
+                                                      C. PHILLIPS.
+
+
+
+
+No. II.
+
+COURSE OF LEGAL STUDY[60]
+
+
+_Non multa sed multum_, is the cardinal maxim by which the student of law
+should be governed in his readings; at the commencement of his studies--in
+the office of his legal preceptor, REPETITION--REPETITION--REPETITION.
+Blackstone and Kent, should be read--and read again and again. These
+elementary works, with some others of an immediately practical
+cast--Tidd's Practice, Stephen's Pleading, Greenleaf's Evidence, Leigh's
+Nisi Prius, Mitford's Equity Pleading--well conned, make up the best
+part of office reading. Of course the Acts of Assembly should be gone
+over and over again. I do not say that this is all. The plan of reading,
+which I am about to recommend, may be begun in the office. Much will
+depend upon, what may be termed, the mental temperament of the student
+himself, which no one but the immediate preceptor can observe; and he
+will be governed accordingly in the selection of works to be placed in
+his hands. No lawyer does his duty, who does not frequently examine his
+student, not merely as a necessary means of exciting him to attention,
+and application; but in order to acquire such an acquaintance with the
+character of his pupil's mind--its quickness or slowness--its
+concentrativeness or discursiveness--as to be able to form a judgment
+whether he requires the curb or the spur. It is an inestimable advantage
+to a young man to have a judicious and experienced friend watching
+anxiously his progress, and able to direct him, when, if left to
+himself, he must wander in darkness and danger. "There be two things,"
+says Lord Coke, "to be avoided by him as enemies to learning,
+_praepostera lectio_ and _praepropera praxis_." Co. Litt. 70 b.
+
+I prefer presenting a certain order of subjects to be pursued;
+observing, however, that it may be somewhat irksome to pursue any one
+branch for too long a period unvaried. When that is found to be the
+case, the last five heads may be adopted as collateral studies, and
+pursued simultaneously with the first three.
+
+These heads or branches are--1. Real Estate and Equity. 2. Practice,
+Pleading, and Evidence. 3. Crime and Forfeitures. 4. Natural and
+International law. 5. Constitutional Law. 6. Civil Law. 7. Persons and
+Personal Property. 8. The Law of Executors and Administrators.
+
+
+I. REAL ESTATE AND EQUITY.
+
+As introductory to this head, Lord Hale's History of the Common Law may
+be perused with advantage. It was perhaps a mere sketch, intended to be
+afterwards filled up and completed. Still, however, it is a work of
+authority, as indeed is everything which proceeded from the pen of its
+distinguished author. He is correct and accurate to a remarkable degree.
+Reeves' History of the English Law is a full and comprehensive history
+of the English Law, accurate and judicious as well as full. Lord
+Mansfield is said to have advised its author in regard to its plan and
+execution. In this work the student is presented with all that is
+necessary that he should know of the earliest law-books, Bracton,
+Glanville, and Fleta, carefully collected and presented. The history of
+the law is separately traced under the reign of each king, and it may be
+of advantage to read at the same time some good history or histories of
+England parallel with the work. "Reeves' History of the English Law,"
+says Chancellor Kent, "contains the best account that we have of the
+progress of the law, from the time of the Saxons to the reign of
+Elizabeth. It covers the whole ground of the law included in the old
+abridgments, and it is a work deserving of the highest commendation. I
+am at a loss which most to admire, the full and accurate learning, which
+it contains, or the neat, perspicuous, and sometimes elegant style, in
+which that learning is conveyed." 1 Comm. 508.
+
+Dalrymple's Essay towards a general History of Feudal Property in Great
+Britain, is a brief but learned and philosophical treatise, which may be
+followed by Sullivan's Lectures on Feudal Law, a work copious in detail
+and exhibiting ably, among other topics, the influence of the feudal
+system upon the Modern Law of Tenures. Sir Martin Wright's Introduction
+to the Law of Tenures is one of the most accurate and profound of the
+essays on this topic; and is worthy of the most attentive study. Craig
+de Feudis was thought by Lord Mansfield much preferable to any judicial
+work which England had then produced. With these legal treatises on the
+feudal system may be read with great advantage, simultaneously,
+Robertson's History of Charles V, and Hallam's History of the Middle
+Ages.
+
+Sir Henry Finch's Law, or Nomotechnia, as he entitled it, may be taken
+up in this connection. It is said that until the publication of
+Blackstone's Commentaries, it was regarded as the best elementary book
+to be placed in the hands of law students; and we have the authority of
+Sir William Blackstone for saying that his method was greatly superior
+to that in all the treatises that were then extant: Blackstone's
+Analysis, Preface, 6. "His text," says Chancellor Kent, "was weighty,
+concise, and nervous, and his illustrations apposite, clear, and
+authentic;" though he adds, "But the abolition of the feudal tenures and
+the disuse of real actions, have rendered half of his work obsolete," 1
+Comm. 509; an objection, in the view we take of legal education, which
+should rather recommend the work than otherwise.
+
+At the same time with Finch take Doctor and Student by St. Germain--a
+little book which is replete with sound law, and has always been cited
+with approbation as an authority.
+
+The Prefaces to the several volumes of Lord Coke's Reports may be read
+now with great advantage. They contain much interesting information, and
+strongly impregnated as they are with Lord Coke's abundant learning and
+love of the law as a science and profession, they form an admirable
+introduction to The First Institute, or Lord Coke's Commentary upon
+Littleton's Tenures. It would be advisable, I think, to read first in
+order the sections of Littleton's Tenures, the original treatise upon
+which The Institute was a commentary. After that, no time or pains
+should be spared to master completely The First Institute. If the course
+now prescribed has been followed, the student will not require to be
+reminded, that even those parts, which seem to relate to obsolete heads
+of the law, ought to be read and understood. "There is not," says Mr.
+Butler, "in the whole of this golden book, a single line which the
+student will not in his professional career, find on more than one
+occasion eminently useful." There may be some extravagance in this
+assertion; but we may nevertheless agree with Mr. Ritso that "there is
+no knowledge of this kind, which may not, sooner or later, be in fresh
+demand; there is no length of time or change of circumstances, that can
+entirely defeat its operation or destroy its intrinsic authority. Like
+the old specie withdrawn from circulation upon the introduction of a
+new coinage, it has always its inherent value; the ore is still sterling
+and may be moulded into modern currency." The opinions of American
+lawyers confirm this conclusion. It is well known that C. J. Parsons was
+distinguished for his familiarity with the pages of The Institute. It
+was Mr. Pinkney's favorite law book; and "his arguments at the Bar,"
+says his biographer, Mr. Wheaton, "abounded with perpetual recurrences
+to the principles and analysis drawn from this rich mine of common law
+learning." Mr. Hoffman, in his Course of Legal Study, has also borne his
+testimony to its importance to the American practitioner. Chancellor
+Kent seems, as I have intimated in the note, to lean rather against Coke
+upon Littleton, as an Institute of Legal Education, although he
+acknowledges its value and authority as a book of reference.
+
+It appears to me that after Coke, Preston's Elementary Treatise on
+Estates may be read with advantage. He is perhaps unnecessarily diffuse
+and tautological; but he enters largely into the reasons of the abstruse
+doctrines of which he treats, and his work is calculated to lead the
+student to inquire more earnestly into the philosophy of the science.
+Fearne's Essay on the Learning of Contingent Remainders, should then be
+well studied. If no other book be read over a second time, it must not
+be omitted as to this. This volume is occupied in the discussion of
+points of great difficulty and abstruseness; yet the style is remarkable
+for clearness and perspicuity, and the reasoning is logical and
+irresistible. A taste or otherwise, for this book, will test the
+student's real progress. After Fearne, take up Sheppard's Touchstone of
+Common Assurances--a work generally supposed to have been written by Mr.
+Justice Doddridge, and not by William Sheppard, whose name it bears. It
+is a most valuable book, one of the most esteemed and authoritative of
+the old treatises. There is an edition by Mr. Preston, but I do not
+recommend it. Had he annotated in the common way, his labors and
+references would no doubt have increased the value of the book; but he
+has taken liberties with the text,--subdividing it, occasionally
+changing the phraseology, and inserting matter of his own: a course of
+proceeding in regard to any work, except a digest or dictionary, to
+which I cannot be reconciled. The Touchstone may be followed by Preston
+on Abstracts of Title, and Preston's Treatise on Conveyancing.
+
+I think that at this period, as a necessary introduction to the
+succeeding studies, some works on Equity Jurisprudence should be taken
+in hand; as the Treatise on Equity of which Henry Ballow is the reputed
+author. It is the text of Fonblanque's Equity. It had better be read by
+itself. Disquisitional notes of great length only confuse and confound
+the student; and Mr. Marvin has well said that Fonblanque's Equity
+"finally expired under the weight of its own notes." To this add
+Jeremy's Treatise on Equity, and Story's Commentaries on Equity
+Jurisprudence. The student may then read with advantage, Powell on
+Mortgages, with Coventry's Notes. It is to be lamented that Mr.
+Coventry did not prepare an original work, instead of overwhelming the
+text of Powell with his learned and valuable labors. Chancellor Kent has
+remarked, that between the English and American editors it is "somewhat
+difficult for the reader to know, without considerable difficulty, upon
+what ground he stands." Like the treatise on Equity, it has been nearly
+choked to death in the embraces of its annotators. Bacon's Reading upon
+the Statute of Uses, is a very profound treatise on that subject, though
+evidently left by its great author in an unfinished state. Sanders on
+Uses and Trusts, is a very comprehensive and learned work, and the
+subject, which may be styled the Metaphysics of the Law, requires close
+attention. Hill on Trustees, is a practical treatise, which may here be
+read with advantage, as also Lewis on Perpetuities. Sugden on Powers,
+has been said to be second to no elementary law book. It is a masterly
+elucidation of the subtle doctrines of the law on the subject of Powers,
+and is held in the highest estimation. It will perhaps be better
+appreciated and understood, if with it, or after it, is taken up
+Chance's Treatise on Powers,--a work more diffuse than Mr. Sugden's, and
+which examines, controverts, and discusses at large many of his
+positions. Sugden on Vendors and Purchasers may then follow.
+
+The titles on Leases and Terms for Years, and Rent, in Bacon's
+Abridgment, should be studied. These were the works of Chief Baron
+Gilbert. After this, Woodfall on Landlord and Tenant.
+
+Roscoe's Treatise on the Law of Actions relating to Real Property, may
+be read as a convenient introduction to Cruise on Fines and Recoveries,
+and Pigott on Common Recoveries.
+
+To these, in conclusion of this, by far the most important and
+fundamental branch of legal studies, may be added, Powell's Essay on the
+Learning of Devises, and Jarman on Wills.
+
+It will be remarked, that I have not set down in order, any Report
+Books; it is not that I undervalue that kind of study. It appears to me
+that in his regular reading, the student should constantly resort to and
+examine the principal cases referred to and commented upon by his
+authors. In this way, he will read them more intelligently, and they
+will be better impressed on his memory. Some reports may be read through
+continuously; such are Plowden, Hobart, Vernon, and I certainly think,
+Johnson's Chancery Reports should be thus read. Smith's Leading Cases is
+an excellent reading-book of this kind. The student of Pennsylvania Law
+will do well not to omit Binney's Reports. But I assign no particular
+place to this kind of study, because I think it may be taken up and laid
+aside at intervals, according to the bent of the student's inclination.
+When, in any particular part of his course, he finds his regular reading
+drags heavily--he has become fagged and tired of a particular
+subject--let him turn aside for a week or two, to some approved and
+standard Report Book; it will be useful reading, and he will be able to
+return refreshed to his proper course.
+
+It would extend this Appendix too much, if I were to go over the
+remaining parts of the prescribed plan, with the same particularity as I
+have this first and most important branch. It will be sufficient to
+indicate merely the books, and the order in which they may be most
+profitably read, under each division.
+
+
+II. PRACTICE, PLEADING, AND EVIDENCE.
+
+The Introduction to Crompton's Practice gives a full account of the
+jurisdiction of the courts, and the steps by which it was arrived at.
+This book is sometimes called Sellon's Practice, having been arranged by
+Mr. Sellon. The fourth part of The Institutes of Lord Coke. Tidd's
+Practice. Stephen on Pleading. Saunders' Reports, with Notes by
+Williams. Broom's Parties to Actions. Greenleaf on Evidence. Selwyn's
+Nisi Prius. Leigh's Nisi Prius. Mitford's Pleading in Equity. Story's
+Equity Pleading. Barton's Historical Treatise of a Suit in Equity.
+Newland's Chancery Practice. Gresley on Evidence in Equity.
+
+
+III. CRIMES AND FORFEITURES.
+
+Hale's History of the Pleas of the Crown. Foster's Crown Law. Yorke's
+Considerations on the Law of Forfeiture for High Treason. The third
+part of The Institutes of Lord Coke. Russell on Crimes and Misdemeanors.
+Chitty on Criminal Law.
+
+
+IV. NATURAL AND INTERNATIONAL LAW.
+
+Burlamaqui's Natural and Political Law. Grotius de Jure Belli et Pacis.
+Rutherford's Institutes. Vattel's Law of Nations. Bynkershoek Questiones
+Publici Juris. Wicquefort's Ambassador. Bynkershoek de Foro Legatorum.
+McIntosh's Discourse on the Study of the Law of Nature and Nations.
+Wheaton's History of International Law. Wheaton's International Law.
+Robinson's Admiralty Reports. Cases in the Supreme Court of the United
+States.
+
+
+V. CONSTITUTIONAL LAW.
+
+The second part of Lord Coke's Institutes. Hallam's Constitutional
+History of England. Wynne's Eunomus. De Lolme on the English
+Constitution, with Stephens' Introduction and Notes. The Federalist.
+Rawle on the Constitution. Story on the Constitution. All the cases
+decided in the Supreme Court of the United States, on constitutional
+questions, to be read methodically, as far as possible.
+
+
+VI. CIVIL LAW.
+
+I consider some study of this head as a necessary introduction to a
+thorough course on the subjects of Persons and Personal Property, and
+the topic, which is so important in the United States, of the Conflict
+of Laws.
+
+Butler's Horae Juridicae. Gibbon's History of the Decline and Fall, chap.
+44. Justinian's Institutes. Savigny's Traite de Droit Romain. Savigny's
+Histoire du Droit Romain au Moyen Age. Taylor's Elements of the Civil
+Law. Mackeldy's Compendium. Colquhoun's Summary of the Roman Civil Law.
+Domat's Civil Law.
+
+
+VII. PERSONS AND PERSONAL PROPERTY.
+
+Reeves on the Domestic Relations. Bingham's Law of Infancy and
+Coverture. Roper on Husband and Wife. Angel and Ames on Corporations.
+Les [OE]uvres de Pothier. Smith on Contracts. Story on Bailments. Jones
+on Bailments. Story on Partnership. Byles on Bills. Story on Promissory
+Notes. Abbott on Shipping. Duer on Insurance. Emerigon Traite des
+Assurances. Boulay-Paty Cour de Droit Commercial. Story on the Conflict
+of Laws.
+
+
+VIII. EXECUTORS AND ADMINISTRATORS.
+
+Roper on Legacies. Toller on Executors. Williams on Executors. The Law's
+Disposal, by Lovelass.
+
+I believe that the course that I have thus sketched, if steadily and
+laboriously pursued, will make a very thorough lawyer. There is
+certainly nothing in the plan beyond the reach of any young man, with
+ordinary industry and application, in a period of from five to seven
+years, with a considerable allowance for the interruptions of business
+and relaxation. One thing is certain,--there is no royal road to Law,
+any more than there is to Geometry. The fruits of study cannot be
+gathered without its toil. It seems the order of Providence that there
+should be nothing really valuable in the world not gained by labor,
+pain, care, or anxiety. In the law, a young man must be the architect of
+his own character, as well as of his own fortune. "The profession of the
+law," says Mr. Ritso, "is that, of all others, which imposes the most
+extensive obligations upon those who have had the confidence to make
+choice of it; and indeed there is no other path of life in which the
+unassumed superiority of individual merit is more conspicuously
+distinguished according to the respective abilities of the parties. The
+laurels that grow within these precincts are to be gathered with no
+vulgar hands; they resist the unhallowed grasp, like the golden branch
+with which the hero of the AEneid threw open the adamantine gates that
+led to Elysium."
+
+
+
+
+No. III.
+
+THE ENGLISH BAR.
+
+
+There are three orders of men at the English Bar: 1. Attorneys, or
+Solicitors in Chancery. 2. Barristers; and 3. Serjeants.
+
+1. _Attorneys and Solicitors._--Acts of Parliament have been made for
+the regulation of this class. The Stat. 6 & 7 Vict. c. 73, consolidating
+and amending several of the laws relating to attorneys and solicitors,
+prescribes the conditions of admission as an attorney, the time and mode
+of their service under articles; and the oaths to be administered to
+them; and authorizes the Judges of the courts of the common law, and the
+Master of the Rolls to appoint examiners to examine the fitness and
+capacity of all persons applying to be admitted as attorneys or
+solicitors; and the certificate, either of the common law or equity
+examiners, will be sufficient to entitle a person so examined to
+admission in all the courts, examination by both not being necessary. 3
+Stewart's Blackst. 29.
+
+2. _Barristers._--The proper legal denomination of this class is
+_apprentices_, being the first degree in the law conferred by the inns
+of court. Spelman defines apprentice, _tyro_, _discipulus_, _novitius in
+aliqua facultate_. This was probably the meaning of the term primarily;
+but as early as the reign of Edward I, it was employed to denote
+counsel below the state and degree of serjeant at law; one degree
+corresponding to that of bachelor, and the other to that of doctor, in
+the universities (Pearce's History of the Inns of Court, 28). Lord Coke
+informs us, however, that this degree was anciently preferred to that of
+serjeant (2 Inst. 214). They were termed _apprenticii ad legem_, or _ad
+barras_; and hence arose the cognomen of _barristers_. A barrister must
+have kept twelve terms, _i. e._, been three years a member of an inn of
+court, before he can be called to the Bar. After a member of an inn of
+court has kept twelve terms, he may, without being called, obtain
+permission to practice _under the Bar_. This class of practitioners are
+called _special pleaders_ or _equity draftsmen_ (according as they
+prepare pleadings in the common law or equity courts), or
+_conveyancers_, who prepare deeds. 3 Stewart's Blackst. 26, note. Those
+who are regularly called, however, may take upon them the causes of all
+suitors. Such of the barristers as have a patent of precedence, as
+king's counsel, sit within the Bar, with the serjeants; all others are
+called _utter_ or _outer barristers_.
+
+3. _Serjeants at law._--_Servientes ad legem_, or serjeant-countors. The
+coif or covering to the head worn by this order has also given a
+denomination to them. There exists some differences of opinion among
+judicial antiquarians as to the origin of the coif. It is supposed by
+some to have been invented about the time of Henry III, for the purpose
+of concealing the clerical tonsure, and thus disguising those renegade
+clerks, who were desirous of eluding the canon, restraining the clergy
+from practising as counsel in the secular courts. Hortensius, 349. By
+others it is referred to a much earlier period, when the practice in the
+higher courts was monopolized by the clergy, and those who were not in
+orders invented the coif to conceal the want of clerical tonsure. 1
+Campbell's Lives of the Chief Justices, 85, note. There are, indeed,
+several circumstances to remind us of the ecclesiastical origin of our
+profession in England. The terms--on the festival of St. Hilary (Bishop
+of Poictiers, in France, who flourished in the fourth century); Easter;
+the Holy Trinity; and of the blessed Michael, the Archangel;--the habits
+of the judges, their appearance in court in scarlet, purple, or black,
+at particular seasons--the use of the word _brother_ to denote serjeant,
+and _laity_ to distinguish the people at large from the profession--the
+coif of the serjeants--the bands worn by judges, serjeants, and counsel,
+and the gown and hood of graduates of the inns of court,--many of such
+circumstances raise a strong presumption that the legal university was
+founded before the time of the enactment of the canons in the reign of
+King Henry III, compelling the clergy to abandon the practice of the law
+in the secular courts (Pearce's History, 22). _Nulles clericus nisi
+causidicus_, was the character given of the clergy, soon after the
+Conquest, by William of Malmsbury. The judges, therefore, were usually
+created out of the sacred order, as was likewise the case among the
+Normans; and all the inferior offices were supplied by the lower
+clergy, which has occasioned their successors to be styled _clerks_ to
+this day (1 Bl. Com. 17). The livings in the gift of the Chancellor were
+originally intended as a provision for them, and an order was made in
+Parliament, 4 Edw. III, that "the Chancellor should give the livings in
+his gift, rated at twenty marks and under, to the King's clerks in
+Chancery, the Exchequer, and the two Benches, according to usage, and to
+none others." 1 Campbell's Lives of the Chancellors, 170, note.
+
+In the time of Fortescue, sixteen years' continuance in the study of the
+law was the period of time considered a necessary qualification in
+candidates for the coif. There seems, however, never to have been a
+regulation to that effect; and it is certain that persons have often
+been advanced to this degree before that time. By the common law no one
+can be appointed a judge of the superior courts, who has not attained
+the degree of the coif; which degree can only be conferred on a
+barrister of one of the four inns of court. As soon as any member of an
+inn of court is raised by royal writ to the state, degree, and dignity
+of a serjeant-at-law, he ceases to be a member of the society. He
+removes to a new hall, and appears for the future in the inn of court as
+a guest (Pearce, 52).
+
+The most valuable privilege formerly enjoyed by the serjeants (who,
+besides the judges, were limited to fifteen in number), was the monopoly
+of the practice in the Court of Common Pleas. A bill was introduced into
+Parliament in the year 1755; for the purpose of destroying this
+monopoly; but it did not pass. In 1834, a warrant under the sign manual
+of the Crown was directed to the Judges of the Common Pleas, commanding
+them to open that court to the Bar at large, on the ground that it would
+tend to the general dispatch of business. This order was received, and
+the court acted accordingly. But in 1839 the matter was brought before
+the court by the serjeants, when it was decided that the order was
+illegal; Tindal, C. J., declaring that, "from time immemorial, the
+serjeants have enjoyed the exclusive privilege of practising, pleading;
+and audience in the Court of Common Pleas. Immemorial enjoyment is the
+most solid of all titles; and we think the warrant of the Crown can no
+more deprive the serjeant, who holds an immemorial office, of the
+benefits and privileges which belong to it, than it could alter the
+administration of the law within the court itself." (10 Bingh. 571; 6
+Bingh. N. C. 187, 232, 235.) However, the Statute 9 & 10 Vict. c. 54,
+has since extended to all barristers the privileges of serjeants in the
+Court of Common Pleas.
+
+
+FOOTNOTES:
+
+[1] This oath seems first to have been prescribed by the Act of
+Assembly, passed August 22d, 1752: "An act for regulating and
+establishing fees." (1 Smith's Laws, 218.) It has been copied into the
+revised Act of 14th April, 1834, s. 69 (Pamphlet Laws, 354), with the
+addition of the clause to "support the Constitution of the United
+States, and the Constitution of this Commonwealth." In England, by the
+Stat. 4 Henry IV, c. 18 (A. D. 1402), it was provided, "that all
+attorneys shall be examined by the Justices, and by their discretion,
+their names put in the roll, and they that be good and virtuous, and of
+good fame, shall be received, and sworn well and truly to serve in their
+offices, and especially that they make no suit in a foreign country."
+The present oath or affirmation is, that he "will truly and honestly
+demean himself in the practice of an attorney, according to the best of
+his knowledge and ability." Stat. 2 Geo. II, c. 23 (A. D. 1729); Stat. 6
+& 7 Vict. c. 73. The qualification of a sergeant-at-law, is given at
+large in 2 Inst. 213; and in the valuable old book, "The Mirror of
+Justices," chap. 2, sec. 5, it is said that "every countor is chargeable
+by the oath, that he shall do no wrong nor falsity, contrary to his
+knowledge, but shall plead for his client the best he can, according to
+his understanding."
+
+[2] Hurst's case, 1 Levins, 72; 1 Sid. 94, 151; Raym. 56, 94; 1 Keb.
+349, 354, 387.
+
+[3] See Austin's case, 5 Rawle, 203. "An attorney at law," says C. J.
+Gibson, "is an officer of the court. The terms of the oath, exacted of
+him at his admission to the bar, prove him to be so;" "you shall behave
+yourself in your _office_ of attorney," &c. Again: it is declared in the
+Constitution, Article 1st, sec. 18 (Art. 1, sec. 19, of the amended
+Constitution of 1838), that "no member of Congress, or other person
+holding any _office_ (except _attorney at law_, and in the militia),
+shall be a member of either House," &c., which is a direct
+constitutional recognition. Prior to the Act of 14th April, 1834, which
+expressly required from them an oath to support the Constitution of the
+United States and the Constitution of the Commonwealth of Pennsylvania,
+attorneys at law were invariably held to be within the provisions of
+Art. 6, sect. 3, of the Constitution of the United States, and of Art.
+8, of the Constitution of Pennsylvania, requiring all officers,
+executive and judicial, to take the oath to support those constitutions
+respectively. In Wood's case (1 Hopkins, 6), solicitors in chancery were
+held to be officers, within the meaning of a similar clause in the
+Constitution of New York. "The admission of an attorney, solicitor, or
+counsellor," says the opinion in that case, "is a general appointment to
+conduct causes before the courts: this station, thus conferred by public
+authority, has its peculiar powers, privileges, and duties, and thus
+becomes an office in the administration of justice." Leigh's case (1
+Munford, 468), in which it was held, that attorneys are not officers,
+within the meaning of the statute of Virginia, requiring all persons
+holding any office, or place, under the commonwealth, to take an oath
+against duelling, does not perhaps conflict with this view. The case of
+Byrne's Admr's _v._ Stewart's Admr's (3 Desaus. 478), may, however, be
+found upon examination somewhat at variance--not the decision itself,
+but the views expressed by Chancellor Watres in his opinion. The case
+simply decided what would seem unquestionable, that the legislature had
+a right to prohibit any public officer, judicial or otherwise, from
+practising as an attorney or solicitor. The Chancellor said, "He (a
+solicitor) can he considered in no other light than that of a private
+agent for the citizens of the country, who may employ him to do their
+legal business in the courts; and although the law requires of him
+certain qualifications, and he receives a license from the judges, yet
+his office is no more a public one, than would be any other profession
+or trade, which the legislature might choose to subject to similar
+regulations, and which is the practice in many other countries. It
+cannot be doubted, that a man's trade or profession is his property; and
+if a law should be passed avowedly for the purpose of restraining any
+member of this bar, who was not a public officer, from exercising his
+profession, I should declare such law void." This is to assume high
+ground; but the idea that a man's profession or trade cannot be
+constitutionally interfered with by legislative enactments, seems
+scarcely tenable, and especially, so far as the profession of the law is
+concerned, in view of the absolute power with which every court is
+clothed, both as to the admission of their attorneys, and forejudging or
+striking them from the roll. Act of 14th April, 1834, s. 73 (Pamphlet
+Laws, 354). Courts of record and of general jurisdiction, are vested
+with exclusive power to regulate the conduct of their own officers, and
+in this respect their decisions are put on the same footing with that
+numerous class of cases, which is wisely confided to the legal
+discretion and judgment of the court, having jurisdiction over the
+subject-matter. Commonwealth _v._ The Judges, 5 Watts & Serg. 272; _Ex
+parte_ Burr, 9 Wheat. 531; _Ex parte_ Brown, 1 Howard (Miss.) Rep. 306;
+Perry _v._ State, 3 Iowa, 550; In the matter of Wills, 1 Mann, 392. "The
+power is one which ought to be exercised with great caution, but which
+is, we think, incidental to all courts, and necessary for the
+preservation of decorum and for the respectability of the profession."
+Marshall C. J. 9 Wheat. 531.
+
+[4] Per Gibson, C. J., in Austin's case, 5 Rawle, 204.
+
+[5] The exact weight of one hundred silver dollars of the old coinage is
+85.9375 ounces; of the new coinage, 80 ounces.
+
+[6] _Ex parte_ Carter, 1 Philada. Rep. 507. Blaike's Lessee _v._
+Chambers, 1 Serg. & Rawle, 169.
+
+[7] Court and juries have their respective spheres assigned to them,
+within which each is to act and move, without encroaching upon the
+jurisdiction or province of the other. In order, then, that jurors as
+well as others may know that the direction and decision of the court, on
+any question of law arising in the course of the trial of an issue of
+fact, is not to be disregarded, and that a verdict given against such
+direction, whatever it may be, can never avail anything, unless it be to
+occasion additional delay, trouble, and expense to the parties, as also
+to the public, the course of the court is to set the verdict aside, and
+to order a new trial. And a court, from whose decisions on questions of
+law, an appeal lies, by writ of error or otherwise, ought never to
+depart from this course; otherwise the party against whom the verdict is
+given loses the benefit of such appeal, and of having the question
+decided by the Appellate Court, which would be a most unjust and illegal
+deprivation of his right. Per Kennedy, J., in Flemming _v._ Marine Ins.
+Co. 4 Whart. 67. After two concurring verdicts against the direction of
+the court in point of law, a new trial will still be awarded.
+Commissioners of Berks County _v._ Ross, 3 Binn. 520. "Principles the
+most firmly established might be overturned, because a second jury were
+obstinate and rash enough to persevere in the errors of the first, in a
+matter confessed by all to be properly within the jurisdiction of the
+court; I mean the construction of the law arising from undisputed
+facts." Per Tilghman, C. J., Ibid. 524. It is not necessary to refer to
+the numerous cases, both in the English and American courts, which
+accord with these principles. A judicious selection of the leading ones
+is to be found in the note to 1 Wharton's Troubat & Haly, 529. The text
+and the note are confined, of course, to civil cases.
+
+[8] Burnet's Life of Sir Matthew Hale, 72.
+
+[9] An attorney is not answerable for every error or mistake; he ought
+not to be liable, in cases of reasonable doubt. Pitt _v._ Yalden, 4
+Burrows, 2060. He shall be protected, when he acts with good faith, and
+to the best of his skill and knowledge. Gilbert _v._ Williams, 8 Mass.
+57. The want of ordinary care and skill in such a person is gross
+negligence. Holmes _v._ Peck, 1 Rhode Island, Rep. 245; Cox _v._
+Sullivan, 7 Georgia, 144; Pennington _v._ Yell, 6 Engl. 212. As between
+the client and the attorney, the responsibility of the latter is as
+great and as strict here as in any country when want of good faith or
+attention to the cause is alleged; but in the exercise of the
+discretionary power usually confided in this country, and especially
+when the client resides at a great distance, an attorney ought not to be
+held liable where he has acted honestly and in a way he thought was for
+the interest of his client. Lynch _v._ The Commonwealth, 16 Serg. &
+Rawle, 368; Stakely _v._ Robison, 10 Casey, 317. When, however, an
+attorney disobeys the lawful instructions of his client, and a loss
+ensues, for that loss the attorney is responsible. Gilbert _v._
+Williams, 8 Mass. 57. If the holder of a note place it in the hands of
+an attorney-at-law, with instructions to bring suit upon it, and the
+attorney, acting under the honest impression that he would best promote
+the interests of his client by not bringing suit immediately, omits to
+do so, and the money is afterwards lost by the insolvency of the maker,
+the attorney is liable in an action against him; and the measure of
+damages is what might have been recovered from the maker of the note, if
+suit had been brought when the note was placed in the hands of the
+attorney for collection. Cox _v._ Livingston, 2 Watts. & Serg. 103;
+Wilcox _v._ Plummer, 4 Peters, 172. But a client has no right to control
+his attorney in the due and orderly conduct of a suit, and it is his
+duty to do what the court would order to be done, though his client
+instruct him otherwise. Anon., 1 Wendell, 108.
+
+[10] An attorney is not compelled to appear for any one unless he takes
+his fee or backs the warrant. Anon., 1 Salk. 87. The attorney cannot
+determine the relation himself, to his client's detriment. Love _v._
+Hall, 3 Yerger, 408. When a solicitor appointed by a party has acted as
+such, he cannot be displaced by the appointment of another, without an
+order of the court. Mumford _v._ Murray, 1 Hopkins, 369. After an
+attorney has entered his name upon the record, he cannot withdraw it
+without leave of the court; and until so withdrawn the service of a
+citation upon him in case of appeal is sufficient. United States _v._
+Curry, 6 Howard, U. S. Rep. 106.
+
+[11] A counsel, attorney, or solicitor, will in no case be permitted,
+even if he should be willing to do so, to divulge any matter which has
+been communicated to him in professional confidence. This is not his
+privilege, but the privilege of the client, and none but the client can
+waive it. Jenkinson _v._ The State, 5 Blackford, 465; Benjamin _v._
+Coventry, 19 Wendell, 353; Parker _v._ Carter, 4 Munf. 273; Wilson _v._
+Troup, 7 Johns. Ch. Rep. 25; Crosby _v._ Berger, 11 Paige, 377; Bank of
+Utica _v._ Mersereau, 3 Barbour Ch. Rep. 528; Aiken _v._ Kilburne, 27
+Maine, 252; Crisler _v._ Garland, 11 Smedes & Marshall, 136; Chew _v._
+The Farmers' Bank of Maryland, 2 Maryland Ch. Decis. 231. It will be
+found in some of these cases that though the counsel declined to be
+engaged for the client, yet the facts communicated were held
+confidential; the only exception recognized being where a purpose to
+perpetrate _in futuro_ a felony or an action _malum in se_ was
+disclosed. Bank of Utica _v._ Mersereau, 3 Barbour Ch. Rep. 377. In
+Moore _v._ Bray, 10 Barr, 519, it was held that communications of the
+object, for which an assignment of a mortgage was made, to a counsel
+concerned for the assignee, were privileged; although no question then
+arose as to the object of the assignment, and the counsel considered the
+communication in the light of a casual conversation. "The circle of
+protection," said Bell, J., "is not so narrow as to exclude
+communications a professional person may deem unimportant to the
+controversy, or the briefest and lightest talk the client may choose to
+indulge with his legal adviser, provided he regards him as such at the
+moment. To found a distinction on such a ground would be to measure the
+safety of the confiding party by the extent of his intelligence and
+knowledge, and to expose to betrayal those very anxieties, which prompt
+those in difficulty, to seek the ear of him in whom they trust in season
+and out of season."
+
+[12] Burnet's Life of Hale, 1 Hale's Works, 59, 60. "He began," says
+Lord Campbell, "with the specious but impracticable rule of never
+pleading except on the right side, which would make the counsel to
+decide without knowing either facts or law, and would put an end to the
+administration of justice." 1 Lord Campbell's Lives of the Chief
+Justices, 412. There is the following curious note by Baxter in Burnet's
+Life of Hale. "And indeed Judge Hale would tell me that Bishop Usher was
+much prejudiced against lawyers because the worst causes find their
+advocates; but that he and Mr. Selden had convinced him of the reasons
+of it to his satisfaction; and that he did by acquaintance with them
+believe that there were as many honest men among lawyers,
+proportionably, as among any profession of men in England (not excepting
+bishops or divines)." 1 Hale's Works, 106.
+
+[13] 2 Wynne's Eunomus, 557.
+
+[14] "Although Serjeants have a monopoly of practice in the Common
+Pleas, they have a right to practice, and do practice, at this bar; and
+if we were to assign one of them as counsel, and he were to refuse to
+act, we should make bold to commit him to prison." Per C. J. Hale. 2
+Campbell's Lives of the Chief Justices, 20; citing Freeman, 389; 2 Lev.
+129; 3 Keble, 424, 439, 440.
+
+[15] Let the circumstances against a prisoner be ever so atrocious, it
+is still the duty of the advocate to see that his client is convicted
+according to those rules and forms which the wisdom of the legislature
+have established, as the best protection of the liberty and security of
+the subject. Professor Christian's note to 4 Blackst. Com. 356. From the
+moment that any advocate can be permitted to say that he _will_ or will
+_not_ stand between the crown and the subject arraigned in the court
+where he daily sits to practise, from that moment the liberties of
+England are at an end. If the advocate refuses to defend from what _he
+may_ think of the charge or of the defence, he assumes the character of
+the judge, nay, he assumes it before the hour of judgment; and in
+proportion to his rank and reputation, puts the heavy influence of
+perhaps a mistaken opinion into the scale against the accused, in whose
+favor the benevolent principle of English law makes all presumptions,
+and which commands the very judge to be his counsel. Lord Erskine, 6
+Campbell's Lives of the Chancellors, 361.
+
+[16] Per Gibson, C. J., in Rush _v._ Cavenaugh, 2 Barr, 189.
+
+[17] "There are many who know not how to defend their causes in
+judgment, and there are many who do, and therefore pleaders are
+necessary; so that that which the plaintiffs or actors cannot or know
+not how to do by themselves, they may do by their serjeants, attorneys,
+or friends." Mirr. of Justices, ch. 2, sec. v.
+
+[18] Rush _v._ Cavenaugh, 2 Barr, 189. If the client in any suit
+furnishes his attorney with a plea which the attorney finds to be false,
+so that he cannot plead it for _the sake of_ his conscience, the
+attorney may plead in this case, _quod non fuit veraciter informatus_,
+and in so doing he does his duty. Jenkins, 52.
+
+[19] Whewell's Elements of Moral and Political Science, vol. 1, p. 257.
+
+[20] Law Magazine, February, 1850, May, 1854. Law Review, February,
+1850. Several articles on the subject, taken from the English press, are
+to be found in Littell's Living Age, vol. 24, pp. 179, 230, 306. I have
+added, in an appendix, Mr. Phillips's vindication of himself from these
+charges, in his correspondence with his friend Mr. Warren, preceded by a
+brief statement of the case.
+
+[21] The civil law will not allow a man to be convicted on his bare
+confession, not corroborated by evidence of his guilt; because there may
+be circumstances which may induce an innocent man to accuse himself.
+Bowyer's Commentaries, 355, note. Upon a simple and plain confession,
+the court hath nothing to do but to award judgment; but it is usually
+very backward in receiving and recording such confession out of
+tenderness to the life of the subject; and will generally advise the
+prisoner to retract it and plead to the indictment. 4 Blackst. Comm.
+329. 2 Hale, P. C. 225.
+
+[22] Per Story, J., in Williams _v._ Read, 3 Mason, 418.
+
+[23] In enumerating the things to which every pleader of others' causes
+ought to have a regard, the Mirror of Justices says, "That he put no
+false dilatories into court, nor false witnesses, nor move or offer any
+false corruptive deceits, leasings, or false lies, nor consent to any
+such, but truly maintain his client's cause, so that it fail not by any
+negligence or default in him, nor by any threatening, hurt, or villany,
+disturb the judge, plaintiff, serjeant, or any other in court, whereby
+he hinder the right or the hearing of the cause." Chap. 2, s. 5. This is
+indeed in the very words of the serjeant's oath, and Lord Coke remarks
+that it consists of four parts: "1. That he shall well and truly serve
+the king's people, as one of the serjeants at law. 2. That he shall
+truly counsel them that he shall be retained with, after his cunning. 3.
+That he shall not defer, wait, or delay their causes willingly for
+covetousness of money, or other thing that may tend to his profit. 4.
+That he shall give due attendance accordingly." 2 Inst. 214.
+
+[24] A pleader is suspendable when he is attainted to have received fees
+of two adversaries, in one cause. Mirror of Justices, chap. 2, sect. 5.
+
+[25] "It is impossible to state a case, in which a witness should be
+treated roughly. If you attempt it, every one feels offended, in the
+person of the witness. You make your work more difficult; the witness
+shuts himself up, considers you as his enemy, and stands upon his
+defence: whereas, an open countenance, and an easy insinuating address,
+unlocks his breast, and disarms him of his caution, if he has any."
+Deinology, 228. This admirable little work, which has been attributed to
+the pen of Lord Erskine, cannot be too highly recommended to the student
+of law. The postscript, which suggests considerations on the _viva voce_
+examination of witnesses, is particularly worthy a very attentive
+perusal.
+
+[26] Preston on Estates, 2.
+
+[27] Co. Litt. 71 _a._
+
+[28] Ibid. 6 _a._
+
+[29] Art. Edward Tilghman, in the Encyclopaedia Americana, vol. xiv; The
+Leaders of the Old Bar of Philadelphia, 50. Let me recommend to the
+attention of the student a curious and interesting work, entitled "An
+introduction to the science of the law, showing the advantages of a
+legal education, grounded on the learning of Lord Coke's Commentaries,
+upon Littleton's Tenures, &c., by Frederick Ritso, Esq." There are few
+works of celebrity, in regard to which such opposite opinions have been
+maintained as the Commentaries of Sir William Blackstone. While some
+have expressed the most enthusiastic admiration, there have been others,
+like Mr. Austin, Professor of General Jurisprudence, in the University
+of London (Outlines of Lectures, 63), who have dealt in language of
+unsparing condemnation and contempt. Mr. Ritso thinks that "the error
+was in adopting them as an institute for the instruction and education
+of professional students, which was evidently no part of Blackstone's
+plan, nor within the scope of his engagement." In this point of view, he
+objects, that "he represents everything rather for effect, than with a
+view to demonstrate. Like the gnomon upon the sun-dial, he takes no
+account of any hours, but the serene:
+
+                                    Et quae,
+    Desperat tractata nitescere posse, relinquit.
+
+In a professional point of view, this solicitude rather to captivate the
+imagination of the student, than to exercise and discipline the
+understanding, is equally unprofitable and inconvenient. It puts him off
+with ornamental illustration, instead of solid argument, and leads to a
+sort of half information, which is often much worse than no information
+at all upon the subject." There is some force in these remarks; yet, too
+many great lawyers have begun their studies with Blackstone, to leave
+any doubt that it is a proper first book. It paves the way for more
+repulsive, though more recondite and valuable works. I very much fear,
+indeed, that a disposition has existed of late years to repudiate Coke
+upon Littleton entirely. Chancellor Kent has shown his leaning in that
+direction (Comm. vol. i, 506, 512). I subscribe fully, however, to Mr.
+Butler's opinion: "He is the best lawyer, and will succeed best in his
+profession, who best understands Coke upon Littleton." It ought not,
+perhaps, to be placed in the hands of the student until he has made some
+progress in his reading of other works: but sooner or later, he should
+aim to master it. Lord Coke was, himself, deeply imbued with the love of
+his profession, and he is able to transfuse his own spirit into his
+readers. His method may be objectionable in some respects; but I cannot
+help thinking that the life of his work is gone when it is hacked to
+pieces, and then attempted to be fitted together again upon another
+man's skeleton. I have ventured to add in the Appendix (No. II), a
+sketch of such a course of reading, of not very extensive compass, as
+may with advantage be pursued by every young man after his admission to
+the Bar.
+
+[30] Maddock's Chancery. Preface.
+
+[31] Bowyer's Headings on the Canon Law, p. 44. Lord Campbell says that
+the person here mentioned was George Hardinge--a Welsh judge and nephew
+of Lord Camden. 5 Lives of the Chancellors, 20, 281. According to Lord
+Mahon, it was on the 15th of March, 1782, in the debate on a motion of
+Sir John Rouse, of want of confidence in the ministry after the
+surrender of Lord Cornwallis. He ascribes the remark to Sir James
+Marriott, but says that, although he was the assertor of this singular
+argument, the honor of its original invention seems rather to belong to
+Mr. Hardinge. 5 Mahon's Hist. 139.
+
+[32] Gibbon's Decline and Fall of the Roman Empire, c. xliv.
+
+[33] Continuus inde et saevus accusandis reis Sicilius, multique audaciae
+ejus aemuli. Nam cuncta legum et magistratuum munia in se trahens
+Princeps, materiam praedandi patefecerat. Nec quidquam publicae mercis tam
+venale fuit, quam advocatorum perfidia: adeo ut Samius insignis eques
+Romanus, quadringentis nummorum millibus, Sicilio datis, et cognita
+prevaricatione, ferro in domo ejus incubuerit. Igitur incipiente C.
+Silio consule designato, cujus de potentia et exitio in tempore
+memorabo, consurgunt patres, legemque Cinciam flagitant, qua cavetur
+antiquitus ne quis ob causam orandam pecuniam donumve accipiat. Tacit.
+Annul. 1. 11, c. 5.
+
+[34] Chancellor Walworth, in Adams _v._ Stevens, 26 Wendell, 21. While
+expressing, as will be seen presently, the opinion that authority as
+well as sound policy would have led me to a different conclusion from
+that at which Chancellor Walworth arrived, it is proper to acknowledge
+that I have drawn largely upon his learned judgment in this case, and at
+the same time to express the high admiration I entertain for the ability
+with which the last of the New York Chancellors illustrated the chair
+where such truly great men had sat before him.
+
+[35] Gibbon's Decline and Fall, c. xvii.
+
+[36] 3 Blackst. Com. 28; Davis Pref. 22; 1 Chanc. Rep. 38; Davis, 23;
+Hodgson _v._ Scarlett, 1 B. & Ald. 232; Finch. L. 188; and see Butler's
+note to 1 Co. Litt. 295 a. So it is with the advocates in the civil law.
+Vost ad Pand. tit. de Postal. Numb. 6, 7, 8; Gravina de Oster. lib. 1,
+s. 42, 43, 44. Boucher D'Asyis, Hist. Abrege de L'Order des Avocats, c.
+iv. See also the commencement of the Dialogue des Avocats du Parl. de
+Paris, by Loisil, which contains curious particulars throughout
+respecting the ancient French Bar. An amusing anecdote is related of
+Pasquier, the famous French advocate. In 1583, while he was attending
+the assizes (_les grands jours_) at Troyes, he sat for his portrait, and
+after the painter had finished the likeness, which Pasquier had not yet
+examined, he asked him to represent him with a book in his hand. The
+painter said that it was too late, as the picture was completed without
+hands. Upon this the witty lawyer immediately wrote the following lines
+as a motto for the portrait:
+
+    Nulla hic Pascasio manus est: Lex Cincia quippe
+    Causidicos nulla sanxit habere manus.
+
+Forsyth's Hortensius, 424.
+
+[37] The reader will find in the Appendix, No. III, an account of the
+different orders of the English Bar.
+
+[38] In some States, the professions of attorney and counsellor at law
+are not distinct; the same person conducts the cause in all its stages;
+and it has not been considered that his authority ceases when judgment
+is obtained. The attorney is in some degree the agent as well as the
+attorney of the party. Huston, J., in Lynch _v._ The Commonwealth, 16
+Serg. & Rawle, 368.
+
+[39] Mooney _v._ Lloyd, 5 Serg. & Rawle, 416.
+
+[40] Hornblower, C. J., in Seeley et al. _v._ Crane, 3 Green, N. J. 35.
+"I shall be sorry to see the honorary character of the fees of
+barristers and physicians done away with. Though it seems to be a
+shadowy distinction, yet I believe it to be beneficial in effect. It
+contributes to preserve the idea of profession, of a class which belongs
+to the public, in the employment and remuneration of which no law
+interferes, but the citizen acts as he likes, '_foro conscientiae_.'"
+Coleridge's Table Talk, vol. 2.
+
+[41] Gray _v._ Brackenridge, 2 Penna. Rep. 181; Foster _v._ Jack, 4
+Watts, 33. In New Jersey, an advocate's fees are not recoverable at law.
+Shaver _v._ Norris, Penning. 63; Seeley _v._ Crane, 3 Green, 35; Van
+Alter _v._ McKinney's Exrs. 1 Harrison, 236. That the general current of
+decisions is in the opposite direction, will be seen by consulting
+Stevens _v._ Adams, 23 Wendell, 57; S. C. 26 Wendell, 451; Newman _v._
+Washington, Martin & Yerger, 79; Stevens _v._ Monges, 1 Harrington, 127;
+Bayard _v._ McLane, 3 Harrington, 217; Duncan _v._ Beisthaupt, 1 McCord,
+149; Downing _v._ Major, 2 Dana, 228; Christy _v._ Douglas, Wright's Ch.
+Rep. 485; Webb _v._ Hepp, 14 Missouri, 354; Vilas _v._ Downer, 21
+Vermont, 419; Lecatt _v._ Sallee, 3 Porter, 115; Easton _v._ Smith, 1 E.
+D. Smith, 318.
+
+[42] Chancellor Walworth, in Adams _v._ Stevens, 26 Wendell, 451; Foster
+_v._ Jack, 4 Watts, 337.
+
+[43] Senator Verplanck, in Adams _v._ Stevens, 26 Wendell, 451.
+
+[44] Vilas _v._ Downer, 21 Vermont, 419. Responsibility in a
+confidential employment is a legitimate subject of compensation, and in
+proportion to the magnitude of the interests committed to the agent.
+Kentucky Bank _v._ Combs, 7 Barr, 543.
+
+[45] That evidence of usage is admissible to show what is the rule of
+compensation for similar services to those sued for, see Vilas _v._
+Downer, 21 Vermont, 424; Badfish _v._ Fox, 23 Maine, 94.
+
+[46] Concerning the pleader's salary, says the Mirror, chap. 2, sec. 5,
+"four things are to be regarded: 1. The greatness of the cause. 2. The
+pains of the serjeant. 3. His worth, as his learning, eloquence, and
+gift. 4. The usage of the court."
+
+[47] Les lois et les docteurs, les anciennes ordonnances et plusieurs
+anciens arrets donnent aux avocats une action pour le paiement de leurs
+honoraires: mais, suivant la derniere jurisprudence du Parlement de
+Paris et la discipline actuelle du barreau, ou ne souffre point qu'un
+avocat intente une telle action. 1 Dupin, Profession d'Avocat, 110. Il
+est possible, que l'usage ne soit qu'un prejuge; mais ce prejuge a eu
+une salutaire influence sur la splendeur du barreau Francais. On ne
+pretend pas, en France, qu'un avocat n'a pas droit a un honoraire pour
+prix de ses travaux. Jamais on n'a refuse d'en allouer a ceux qui en ont
+reclame. Dans plusieurs barreaux, ces reclamations sont meme tolerees.
+Mais le barreau de Paris s'est montre plus severe; et non seulement
+autrefois, mais encore aujourd'hui, tout avocat a la cour qui
+actionnerait un client en paiement d'honoraires serait raye du tableau.
+Du reste, s'il est defendu d'exiger, il est permis de recevoir tout ce
+que le client veut bien assigner pour prix aux services de son avocat,
+en raison de ses peines et de l'importance des travaux. Ibid. 698.
+
+Les honoraires dus par les parties aux avocats charges du soin de leur
+defense, ne doivent pas etre restraints a la taxe etablie par le tarif.
+Cette taxe a pour objet seulement de fixer la somme due par la partie
+qui succombe, et non d'apprecier les soins de l'avocat, appreciation qui
+doit etre faite selon l'importance et la difficulte du travail. Ibid.
+699.
+
+[48] Arden _v._ Patterson, 5 Johns. Ch. Rep. 48.
+
+[49] Foster _v._ Jack, 4 Watts, 338, 339.
+
+[50] Clippinger _v._ Hepbaugh, 5 Watts. & Serg. 315; Marshall _v._ The
+Baltimore and Ohio Railroad Co., 16 Howard (S. C.) Rep. 336. That
+champerty is an offence at common law, and that contracts of that
+character, between client and counsel, are void on that ground, and as
+against public policy, will be found to have been maintained in Rust
+_v._ Larue, 4 Litt. 411; Caldwell's Administrators _v._ Shepherd's
+Heirs, 6 Monroe, 391; Thurston _v._ Percival, 1 Pick. 415; Arden _v._
+Patterson, 5 Johns. Ch. Rep. 48; Bleakley's case, 5 Paige, 311; Wallis
+_v._ Loubert, 2 Denio, 607; Backus _v_. Byron, 4 Michigan, 535; Elliott
+_v._ McClelland, 17 Alabama, 206. The cases on the other side, are,
+Thallhimer _v._ Brinckerhoff, 3 Cowen, 643; Ramsay's Devisees _v._
+Trent, 10 B. Monroe, 336; Bayard _v._ McLane, 3 Harrington, 216; Lytle
+_v._ State, 17 Arkansas, 608; Newkirk _v._ Cone, 18 Illinois, 449; Major
+_v._ Gibson, 1 Patton Jr. & Heath (Va.), 48; Wright _v._ Meek, 3 Iowa,
+472. In New York, by the Revised Statutes, it was made an offence,
+punishable by fine or imprisonment, and removal from the Bar, for any
+attorney, counsellor, or solicitor, directly or indirectly to buy, or be
+in any manner interested in buying, or to advance or procure money to be
+advanced upon anything in action, with the intent, or for the purpose of
+bringing any suit thereon. 2 Revised Stat. 386. The Code of Procedure
+appears to have changed the law in this respect, and to enable parties
+to make such bargains as they please with their attorneys. Code of
+Procedure, s. 258; Satterlee _v._ Frazer, 2 Sandf. S. C. Rep. 142;
+Benedict _v_. Stuart, 23 Barb. 420; Ogden _v._ Des Arts, 4 Duer (N. Y.),
+275; Sedgwick _v._ Stanton, 4 Kernan, 289. In Kentucky there appears to
+be a statute, which provides that any one not a party, receiving as
+compensation for services in prosecuting or defending a suit the whole
+or part of the subject-matter in suit, is guilty of champerty, and it
+has been held that this statute extends to attorneys. Davis _v._
+Sharron, 15 B. Monroe, 64. In England, contingent fees are held to be
+clearly within the statutes of champerty and maintenance. Penrice _v._
+Parker, Rep. Temp. Finch, 75.
+
+[51] 2 Wallace, Jr. Rep. 452.
+
+[52] 10 Casey, 299.
+
+[53] Paciscendi quidem ille piraticus mos; et imponentium periculis
+pretia, procul abominanda negotiatio, etiam a mediocriter improbis
+aberit: cum praesertim bonos homines bonasque causas tuenti non sit
+metuendus ingratus, qui si futurus, malo tamen ille peccet. Quinct. Lib.
+xii, c. 7.
+
+[54] Evans _v._ Ellis, 5 Denio, 640; Newman _v._ Payne, 2 Ves. 199;
+Walmsley _v._ Booth, 3 Atk. 25; Montesquieu _v._ Sandys, 18 Ves. 313.
+The doctrine has been fully followed in this country; Stockton _v._
+Ford, 11 How. U. S. 247; Starr _v._ Vanderheyden, 9 Johns. 253; Howell
+_v._ Ransom, 11 Paige, 538; De Rose _v._ Fay, 4 Edw. Ch. 40; Lewis _v._
+J. A., Ibid. 599; Berrien _v._ McLane, 1 Hoffman, Ch. Rep. 424; Miles
+_v._ Ervin, 1 McCord, Ch. Rep. 524; Rose _v._ Mynell, 7 Yerger, 30; Bibb
+_v._ Smith, 1 Dana, 482; Smith _v._ Thompson's Heirs, 7 B. Monroe, 308;
+Jennings _v._ McConnel, 17 Illinois, 148.
+
+An agreement made by a client with his counsel, after the latter had
+been employed in a particular business, by which the original contract
+is varied, and greater compensation is secured to the counsel than may
+have been agreed upon when first retained, is invalid and cannot be
+enforced. Lecatt _v._ Sallee, 3 Porter, 115.
+
+[55] In Foss's Grandeur of the Law, eighty-two existing peerages are
+stated to have sprung from the law. That was in 1843.
+
+[56] Non merum, si ob hanc facultatem homines saepe etiam non nobiles
+consulatum consecuti sunt: praesertim cum haec eadem res plurimas gratias,
+firmissimas amicitias, maxima studia pariat. Cic. pro Muraena.
+
+[57] Vivit, vivetque per omnium saeculorum memoriam. Dumque hoc vel forte
+vel providentia vel utcunque constitutum rerum naturae corpus, quod ille
+paene solus Romanorum animo vidit, ingenio complexus est, eloquentia
+illuminavit, manebit incolume: comitem aevi sui laudem Ciceronis trahet;
+omnisque posteritas illius in te scripta mirabitur, tuum in eum factum
+execrabitur: citiusque in mundo genus hominum, quam cadet. Vell. Patere.
+L. 2.
+
+[58] Sir William Jones adds to his other claims upon our admiration
+that of a decided partiality to the character and fortunes of our
+American Republics. "The sum of my opinion is," says he, "that while all
+the American people understand the modern art of war, and learn
+jurisprudence by serving in rotation upon grand and petit juries, their
+liberty is secure, and they will certainly flourish most when their
+public affairs are best administered by their Senate and Councils. I
+cannot think a monarchy or an oligarchy _stronger_ in substance,
+whatever they may be in appearance, than a popular government.... I
+shall not die in peace without visiting your United States for a few
+months before the close of the eighteenth century. May I find wisdom and
+goodness in your Senate, arms and judicature, which are power, in your
+commons, and the blessings of wealth and peace equally distributed among
+all." 2 Wynne's Eunomus, 359, note.
+
+[59] Note at p. 47.
+
+[60] Note at p. 75.
+
+
+
+***END OF THE PROJECT GUTENBERG EBOOK AN ESSAY ON PROFESSIONAL ETHICS***
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