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diff --git a/22359-h/22359-h.htm b/22359-h/22359-h.htm new file mode 100644 index 0000000..fe73f24 --- /dev/null +++ b/22359-h/22359-h.htm @@ -0,0 +1,5897 @@ +<!DOCTYPE html PUBLIC "-//W3C//DTD XHTML 1.0 Strict//EN" + "http://www.w3.org/TR/xhtml1/DTD/xhtml1-strict.dtd"> +<html xmlns="http://www.w3.org/1999/xhtml"> +<head> +<meta http-equiv="Content-Type" content="text/html; charset=ISO-8859-1" /> +<title>The Project Gutenberg eBook of An Essay on Professional Ethics, by George Sharswood</title> + <style type="text/css"> +/*<![CDATA[ XML blockout */ +<!-- + p { margin-top: .75em; + text-align: justify; + margin-bottom: .75em; + } + h1,h2,h3 { + text-align: center; + clear: both; + } + + h4 { + text-align: center; + clear: both; + margin-top: 2em; + } + + h4.pg { + text-align: center; + clear: both; + margin-top: 0em; + } + + hr { width: 33%; + margin-top: 2em; + margin-bottom: 2em; + margin-left: auto; + margin-right: auto; + clear: both; + } + + body{margin-left: 10%; + margin-right: 10%; + } + + .pagenum { + position: absolute; + left: 92%; + font-size: smaller; + text-align: right; + } + + .blockquot{margin-left: 5%; margin-right: 10%;} + + .center {text-align: center;} + .smcap {font-variant: small-caps;} + + .footnotes {border: dashed 1px;} + .footnote {margin-left: 10%; margin-right: 10%; font-size: 0.9em;} + .footnote .label {position: absolute; right: 84%; text-align: right;} + .fnanchor {vertical-align: 0.25em; font-size: .8em; text-decoration: none;} + + .poem {margin-left:10%; margin-right:10%; text-align: left;} + .poem br {display: none;} + .poem .stanza {margin: 1em 0em 1em 0em;} + .poem span.i0 {display: block; margin-left: 0em; padding-left: 3em; text-indent: -3em;} + .poem span.i2 {display: block; margin-left: 2em; padding-left: 3em; text-indent: -3em;} + .poem span.i4 {display: block; margin-left: 4em; padding-left: 3em; text-indent: -3em;} + .poem span.i6 {display: block; margin-left: 6em; padding-left: 3em; text-indent: -3em;} + .poem span.i10 {display: block; margin-left: 10em; padding-left: 3em; text-indent: -3em;} + .poem span.i12 {display: block; margin-left: 12em; padding-left: 3em; text-indent: -3em;} + + .trans1 {border: solid 1px; + margin: 3em 15%; padding: 1em; text-align: left;} + + .trnhd {text-align: center; font-size: larger; font-weight: bold;} + + img {border: none} + + .moretop {text-align: center; margin-top: 3em;} + + a:link {text-decoration:none; } + a:visited {text-decoration:none; } + + ul {list-style-type: none} + li {font-size:0.9em;} + + .author {text-align: left; margin-left: 65%;} + .signing {text-align: left; margin-left: 65%; text-indent: -4em;} + .letter1 {text-align: right; margin-top: 2em;} + + hr.full { width: 100%; + margin-top: 3em; + margin-bottom: 0em; + margin-left: auto; + margin-right: auto; + height: 4px; + border-width: 4px 0 0 0; /* remove all borders except the top one */ + border-style: solid; + border-color: #000000; + clear: both; } + pre {font-size: 75%;} + // --> + /* XML end ]]>*/ + </style> +</head> +<body> +<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> </p> +<h4>E-text prepared by Marilynda Fraser-Cunliffe, Stephen Blundell,<br /> + and the Project Gutenberg Online Distributed Proofreading Team<br /> + (<a href="http://www.pgdp.net/c/">http://www.pgdp.net</a>)<br /> + from page images generously made available by<br /> + the Making of America Books Collection of<br /> + the University of Michigan's Digital Library Production Service<br /> + (<a href="http://www.umdl.umich.edu/">http://www.umdl.umich.edu/</a>)</h4> +<p> </p> +<table border="0" style="background-color: #ccccff;" cellpadding="10"> + <tr> + <td valign="top"> + Note: + </td> + <td> + 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 + <a href="http://www.hti.umich.edu/cgi/t/text/text-idx?c=moa;idno=AJF2351.0001.001"> + http://www.hti.umich.edu/cgi/t/text/text-idx?c=moa;idno=AJF2351.0001.001</a> + </td> + </tr> +</table> +<p> </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> </p> +<p> </p> +<p> </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 hæc 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. & J. W. JOHNSON & 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. & J. W. JOHNSON & CO.,<br /><br /> +In the Clerk's Office of the District Court for the Eastern District of Penn'a.</small></p> + +<p> </p> + +<p class="center"><small>C. SHERMAN & 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—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>—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—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—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,<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—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—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—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<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—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>—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 æqui</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—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—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—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<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—security to men in +the free enjoyment and development of their +capacities for happiness—<span class="smcap">security</span>—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<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—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<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—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:<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—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—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."</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—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, <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—the <i>ipsissima +verba</i>—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—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. & 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. & 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 Phœnix 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 +Phœnix, 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. & 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 Phœnix 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—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.</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—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>—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<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—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<span class='pagenum'><a name="Page_12" id="Page_12">[Pg 12]</a></span> +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.<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,—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. <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—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,—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,—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—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<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—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—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<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,—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:—</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—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 conscientiæ</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—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.</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 +conscientiæ</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:—</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—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,—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;—</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—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,—he, too, +aware of the exact position of Mr. Phillips—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—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,—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,—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<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—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<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—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<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,—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">—— dulce diu fuit et solemne, reclusa<br /></span> +<span class="i0">Mane domo vigilare, clienti promere jura,—<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,—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,—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—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<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—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<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—<i>uberrima fide</i>—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,—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.<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—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—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,<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—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,—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:"—<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,—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?<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—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<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,—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—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,<span class='pagenum'><a name="Page_125" id="Page_125">[Pg 125]</a></span> +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.</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,—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>,—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, &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>,—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>,—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?"—"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—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<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,"—"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"—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,"—"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<span class='pagenum'><a name="Page_139" id="Page_139">[Pg 139]</a></span> +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<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—in vain—<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—in the office of his +legal preceptor, <span class="smcap">Repetition</span>—<span class="smcap">Repetition</span>—<span class="smcap">Repetition</span>. +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,<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—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, <i>præpostera lectio</i> and <i>præpropera +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—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—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—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.</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,—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—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<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 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.</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 Œuvres 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.</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,—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."</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>—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.</p> + +<p>2. <i>Barristers.</i>—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>—<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—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 <i>brother</i> to denote serjeant, and +<i>laity</i> 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). <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 & 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 & 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," &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," &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—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 & 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. & 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 & 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. & 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. & 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 & 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 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: +</p> +<div class="poem"><div class="stanza"> +<span class="i12">Et quæ,<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—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 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.</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. & 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 (<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. & 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. & 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 conscientiæ</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 & 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 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.</p> + +<p>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.</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. & 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. & 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 præsertim 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 sæpe etiam +non nobiles consulatum consecuti sunt: præsertim cum hæc +eadem res plurimas gratias, firmissimas amicitias, maxima +studia pariat. Cic. pro Muræna.</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 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.</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> </p> +<p> </p> +<hr class="full" /> + +<p>***END OF THE PROJECT GUTENBERG EBOOK AN ESSAY ON PROFESSIONAL ETHICS***</p> +<p>******* This file should be named 22359-h.txt or 22359-h.zip *******</p> +<p>This and all associated files of various formats will be found in:<br /> +<a href="http://www.gutenberg.org/dirs/2/2/3/5/22359">http://www.gutenberg.org/2/2/3/5/22359</a></p> +<p>Updated editions will replace the previous one--the old editions +will be renamed.</p> + +<p>Creating the works from public domain print editions means that no +one owns a United States copyright in these works, so the Foundation +(and you!) can copy and distribute it in the United States without +permission and without paying copyright royalties. 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