Minor typographical errors have been corrected without note.
The oe ligature has been transcribed as [oe].
A table of contents, though not present in the original, has been provided below:
PREFACE. INTRODUCTION. PROFESSIONAL ETHICS. APPENDIX. No. I. No. II. No. III.
AN ESSAY ON PROFESSIONAL ETHICS.
Id non eo tantum, quod si vis illa dicendi malitiam instruxerit, nihil sit publicis privatisque rebus perniciosius eloquentia: sed nos quoque ipsi, qui pro virile parte conferre aliquid ad facultatem dicendi conati sumus, pessime mereamur de rebus humanis, SI LATRONI COMPAREMUS HAEC ARMA, NON MILITI. QUINCT. DE INST. OR.
Philadelphia: T. & J. W. Johnson & Co., Law Booksellers and Publishers, No. 535 Chestnut Street. 1860.
Entered, according to Act of Congress, in the year 1860, by T. & J. W. Johnson & Co., in the Clerk's Office of the District Court for the Eastern District of Penn'a.
C. Sherman & Son, Printers, S. W. Cor. Seventh and Cherry Streets, Philadelphia.
MY HONORED MASTER,
JOSEPH R. INGERSOLL, LL.D.,
RESPECT AND GRATITUDE.
The following Essay was originally published under the title of "A Compend of Lectures on the Aims and Duties of the Profession of the Law, delivered before the Law Class of the University of Pennsylvania." A portion of it had been read by the author as an Introductory Lecture at the opening of the Fifth Session of the Law Department of that Institution, October 2d, 1854. The young gentlemen, alumni, and students of the school, who were present on that occasion, requested a copy for publication, in order that each of them might possess a memento of their connection with the Institution. The author preferred to publish the entire Compend than merely a part of it. He hesitated much in doing so, because the questions discussed are difficult, and opinions upon them variant, and he could scarcely hope that he had in every case succeeded in just discrimination. A review of the matter now, when a second edition has been called for, has suggested, however, no important change in the principles advanced, though a few additions have been made, some inaccuracies corrected, and an introduction upon the importance of the profession, in a public point of view, prefixed.
The dignity and importance of the Profession of the Law, in a public point of view, can hardly be over-estimated. It is in its relation to society at large that it is proposed to consider it. This may be done by showing its influence upon legislation and jurisprudence. These are the right and left hands of government in carrying out the great purposes of society. By legislation is meant the making of law—its primary enactment or subsequent alteration. Jurisprudence is the science of what the law is or means, and its practical application to cases as they arise. The province of legislation is jus dare—of jurisprudence, jus dicere. The latter is entirely in the hands of lawyers as a body—the former almost entirely.
Legislation is indeed a nobler work than even jurisprudence. It is the noblest work in which the intellectual powers of man can be engaged, as it resembles most nearly the work of the Deity. It is employed as well in determining what is right or wrong in itself—the due proportion of injuries and their remedies or punishments—as in enforcing what is useful and expedient. How wide the scope of such a work! The power of society over its individual members, or, in other words, sovereignty, which is practically vested in the legislature, is a type of the Divine power which rules the physical and moral universe. "There is one Lawgiver," says the Apostle James. Not that the Supreme Being is the sole universal lawgiver in the sense of a creator of law, whose will alone determines the boundaries of right and wrong. God is the creator of the beings who are the subjects of law. He is the author of law—the one lawgiver—in the same sense that he, who first discovered a plain figure, may be said to be the author of all theorems, which may be predicated of it. He who first called attention to the curious curve, made by a point in the periphery of a wheel as it turns on the ground, is in a certain sense the discoverer of all the truths, which may be mathematically demonstrated in respect to it.
Law in its true sense is not the work of mere will—not an act of intellectual caprice. It is a severe and necessary deduction from the relations of things. The Divine legislator sees and knows these relations perfectly. He can draw no wrong deduction from them. He can make no mistake. Whatever laws have certainly emanated from Him are certainly right. This is the sense in which it is true that "there is one Lawgiver:" all others but attempt the work; He alone is competent to perform it. There is no mathematical certainty in our reasoning on moral as there is on physical relations. We know that the three angles of a triangle are equal to two right angles with an assurance we can never have in regard to any moral truth whatever. The Divine law is a deduction necessarily and mathematically certain as much so as any truth in geometry. Human law can aim only at such a probable deduction as results from a finite and imperfect knowledge.
The system of law delivered by Moses to the Jews deserves, therefore, the most careful study at the hands of all who believe him to have been a divinely commissioned lawgiver. These laws were not intended for any other people than the Israelites; they were adapted to their circumstances, climate, country, neighbors, to the period of the world when they were promulgated, and during which they were to prevail. They were certainly not meant as a model for any other form of government, for any other people, or for any other time. Many laws are to be found there which are unnecessary and superfluous if applied elsewhere. Many actions, innocent in themselves, are prohibited. All the mala prohibita are not mala in se. But one thing is as clear as a sunbeam, and that is a very important light to the student of Ethics; if God was the author of these laws, nothing morally wrong was commanded or allowed by them. When it was said of the Jews through the prophet, "I gave them statutes which were not good," it cannot mean not morally good; laws which it would be sinful in them to obey. The word in the original is not the word appropriated in that language to right, conformity to rule, but to goodness in its most general sense. Good statutes mean wise and expedient statutes. By no process can the logical mind be brought to the conclusion that the perfectly wise and good lawgiver, in framing a code of laws for any people, would impose as a punishment "for the hardness of their hearts," a penalty, submission to which would itself be punishable as a sin against the law of nature. He might command or allow as such punishment what in itself was inexpedient and injurious to them, and which upon the promulgation of a new law repealing the old and prohibiting what it allowed, would become by the sanction of the same lawgiver thenceforth universally malum prohibitum. The authority of God as a lawgiver is certainly not confined to a mere declaration of what is right or wrong by the law of Nature.
There can be no merely arbitrary laws. It is necessary to bear in mind that we are now considering the province of the legislator, who ought to enact no law without an end. "Civil legislative power," says Rutherforth (B. II, c. vi, s. 10), "is not in the strict sense of the word an absolute power of restraining or altering the rights of the subjects: it is limited in its own nature to its proper objects, to those rights only in which the common good of the society or of its several parts requires some restraint or alteration. So that whenever we call the civil legislative power, either of society in general or of a particular legislative body within any society, an absolute legislative power, we can only mean that it has no external check upon it in fact; for all civil legislative power is in its own nature under an internal check of right: it is a power of restraining or altering the rights of the subjects for the purpose of advancing or securing the general good, and not of restraining or altering them for any purpose whatever, and much less for no purpose at all." There are, therefore, no arbitrary laws which fulfil the end of law. Doubtless the true objects of society and government may be mistaken by him who sets up to be law-maker, or if those objects are properly appreciated, the means for advancing them may be mistaken. It is not wonderful that in a matter which demands the highest wisdom, many should try and fail.
It becomes important to inquire what are the true ends of society and government? Man is a gregarious animal—a social being. He may exist in solitude, but he cannot enjoy life: he cannot perfect his nature. Those who have watched and studied closely the habits of those irrational animals, who live in communities, as the ant, the bee, and the beaver, have observed not only a settled system and subordination, but the existence of some wonderful faculty, like articulate speech, by which communication takes place from one to another; a power essential to order. Man, the highest social animal in the scale of earthly being, has also the noblest faculty of communication.
The final cause—the reason why man was made a social being—is that society was necessary to the perfection of his physical, intellectual, and moral powers, in order to give the fullest return to the labor of his hands and to secure the greatest advances in knowledge and wisdom. It is for no vain national power or glory, for no experimental abstraction, that governments are instituted among men. It is for man as an individual. It is to promote his development; and in that consists his true happiness. The proposition would be still more accurate were it said, society is constituted that men may be free—free to develop themselves—free to seek their own happiness, following their own instincts or conclusions. Without society—and government, which of course results from it—men would not be free. An individual in a state of isolation might defend himself from savage beasts, and more savage men, as long as his strength lasted, but when sickness or age came on, the product of the labor of his hands, accumulated by a wise foresight to meet such a contingency, would become the prey of the stronger. The comparatively weak-minded and ignorant would be constantly subject to the frauds of the more cunning.
It is enough to look at the effects of the division of employments and the invention of labor-saving machinery, to recognize the invaluable results of society in the development of wealth and power. In a state of isolation a man's entire time and strength would be needed for the supply of his physical wants. As men advance in knowledge and wisdom the standard of their mere physical wants is elevated. They demand more spacious and comfortable dwellings, more delicate viands and finer clothing.
"Allow not nature more than nature needs, Man's life is cheap as beasts'."
It is not true that men would be morally better or happier, if their style of living were reduced to the greatest plainness consistent with bare comfort. Our taste in this respect, as for the fine arts, as it becomes more refined, becomes more susceptible of high enjoyment. When large fortunes are suddenly made by gambling, or what is equivalent thereto, then it is that baleful luxury is introduced—a style of living beyond the means of those who adopt it, and spreading through all classes. Taste, cultivated and enjoyed at the expense of morals, degrades and debases instead of purifying and elevating character. Men, who have accumulated wealth slowly by labor of mind or body, do not spend it extravagantly. If they use it liberally, that creates no envy in their poorer neighbor, no ruinous effort to equal what is recognized to be the due reward of industry and economy. The luxury, which corrupted and destroyed the republic of Rome, was the result of large fortunes suddenly acquired by the plunder of provinces, the conquests of unjust wars. The most fruitful source of it, in our own day, is what has been well termed class legislation—laws which either directly or indirectly are meant to favor particular classes of the community. They are supported by popular reasons and specious arguments, yet there is one test of the true character of such laws, an experimentum crucis, of which, in general, they cannot bear the application. Legislation, which requires or which will pay to be bored or bought, is unequal legislation; and therefore unwise and unjust. Bentham's rule, though false as the standard of right and wrong, is in general the true rule of practical legislation, the greatest good of the greatest number. It is expressed with the most force and accuracy by that master of the science, Bynkershoek; Utilitas, utilitas, justi PROPE mater et aequi: in which observe that the word prope is emphatic. Legislation for classes violates this plain rule of equal justice, and moreover does not, in the long run, benefit those for whom it is intended. The indirect evils upon society at large are even more injurious than those which are direct. Men are often thus poor to-day and rich to-morrow. The bubble, while it dances in the sunbeam, glitters with golden hues, though destined almost immediately to burst and be seen no more.
What government owes to society, and all it owes, is the impartial administration of equal and just laws. This produces security of life, of liberty, and of property. It has become a favorite maxim, that it is the duty of government to promote the happiness of the people. The phrase may be interpreted so as to mean well, but it is a very inaccurate and unhappy one. It is the inalienable right of men to pursue their own happiness; each man under such restraints of law as will leave every other man equally free to do the same. The true and only true object of government is to secure this right. The happiness of the people is the happiness of the individuals who compose the mass. Speaking now with reference to those objects only, which human laws can reach and influence, he is the happy man, who sees his condition in life constantly and gradually, though it may be slowly, improving. Let government keep its hands off—do nothing in the way of creating the subject-matter of speculation—and things naturally fall into this channel. There will be some speculators, as there will be some gamblers; but they will be few. The stock market is filled with fancies, which the government has manufactured and continues to manufacture to order. It is the duty of government to encourage the accumulation of the savings of industry. The best way to do so is to guard the strong box from the invasion of others, and not itself to invade it. Property has an especial claim to protection against the government itself. The power of taxation in the legislature is in fact a part of the eminent domain; a power that must necessarily be reposed in the discretion of every government to furnish the means of its own existence. One grievous invasion of property—and of course ultimately of labor, from whose accumulations all property grows—is by government itself, in the shape of taxation for objects not necessary for the common defence and general welfare. Men have a right not only to be well governed, but to be cheaply governed—as cheaply as is consistent with the due maintenance of that security, for which society was formed and government instituted. This, the sole legitimate end and object of law, is never to be lost sight of—security to men in the free enjoyment and development of their capacities for happiness—SECURITY—nothing less—but nothing more. To compel men to contribute of the earnings or accumulations of industry, their own or inherited, to objects beyond this, not within the legitimate sphere of legislation, to appropriate the money in the public treasury to such objects, is a perversion and abuse of the powers of government, little if anything short of legalized robbery. What is the true province of legislation, ought to be better understood. It is worth while to remark, that in every new and amended State constitution, the bill of rights spreads over a larger space; new as well as more stringent restrictions are placed upon legislation. There is no danger of this being carried too far; as Chancellor Kent appears to have apprehended that it might be. There is not much danger of erring upon the side of too little law. The world is notoriously too much governed. Legislators almost invariably aim at accomplishing too much. Representative democracies, so far from being exempt from this vice, are from their nature peculiarly liable to it. Annual legislatures—with generally two-thirds new members every year—increase the evil. The members fall into the common mistake, that their commission is to act, not to decide in the first place whether action is necessary. They would be blamed and ridiculed, if they adjourned without doing something important. Hence the annual volumes of our Acts of Assembly are fearfully growing in bulk. It is not merely of the extent of local legislation, the vast multiplication of charters for every imaginable purpose, or of the constantly recurring tampering with the most general subjects of interest, finance, revenue, banking, education, pauperism, &c., that there is reason to complain; but scarce a session of one of our legislatures passes without rash and ill-considered alterations in the civil code, vitally affecting private rights and relations. Such laws are frequently urged by men, having causes pending, who dare not boldly ask that a law should be made for their particular case, but who do not hesitate to impose upon the legislature by plausible arguments the adoption of some general rule, which by a retrospective construction, will have the same operation. It is a most monstrous practice, which lawyers are bound by the true spirit of their oath of office, and by a comprehensive view of their duty to the Constitution and laws, which they bear so large a part as well in making as administering, to discountenance and prevent. It is to be feared, that sometimes it is the counsel of the party who recommends and carefully frames the bill, which, when enacted into a law, is legislatively to decide the cause. It is time that a resort to such a measure should be regarded in public estimation as a flagrant case of professional infidelity and misconduct.
This brief sketch of the true province of legislation is enough to evince its vast importance. How great is the influence of the lawyers as a class upon legislation! Let any man look upon all that has been done in this department, and trace it to its sources. He will acknowledge that legislation, good or bad, springs from the Bar. There is in this country no class of lawyers confined to the mere business of the profession—no mere attorneys—no mere special pleaders—no mere solicitors in Chancery—no mere conveyancers. However more accurate and profound may be the learning of men, whose studies are thus limited to one particular branch, it is not to be regretted either on account of its influence on the science or the profession. The American lawyer, considering the compass of his varied duties, and the probable call which will be made on him especially to enter the halls of legislation, must be a Jurist. From the ranks of the Bar, more frequently than from any other profession, are men called to fill the highest public stations in the service of the country, at home and abroad. The American lawyer must thus extend his researches into all parts of the science, which has for its object human government and law: he must study it in its grand outlines as well as in the filling up of details. He is as frequently called upon to inquire what the law ought to be as what it is. While a broad and marked line separates, and always ought to separate the departments of Legislation and Jurisprudence, it is a benefit to both that the same class of men should be engaged in both. Practice will thus be liberalized by theory, and theory restrained and corrected by practice. The mere abstractionist or doctrinaire would aim at the formation of a code of great simplicity: the practitioner sees in it the parent of uncertainty and injustice. Legal propositions cannot be framed with the certainty of mathematical theories. The most carefully studied language still leaves room for interpretation and construction. Time itself, which works such mighty changes in all things, produces a state of circumstances not in the mind of the lawgiver. The existing system, it may be, is an unwieldy, inconvenient structure, heavy and grotesque from the mixed character of its architecture outwardly, inwardly its space too much occupied and its inmates embarrassed by passages and circuities. The abstractionist would at once demolish it, and replace it by a light, commodious and airy dwelling, more symmetrical and chaste in its appearance, better fitted for the comfort and usefulness of its inhabitants. The practitioner, who has become familiar with it, who observes and admires that silent legislation of the people, which shows itself not on the pages of the statute book, and receives its recognition in courts of justice only after it has ceased to need even that to give it form and vitality, and who understands, therefore, how, with little inconvenience, it is made to accommodate itself to every change of condition, sits down to a careful calculation of the cost and risk of such wholesale change. History and practical experience, alike, suggest to him, that the structure is a castle as well as a dwelling, a place for security as well as comfort; that its foundations have been laid deeply on the solid rock—its masonry more firmly knit together by the time it has endured. Yet he will not deny that what can be done consistently with security ought to be done. It is worse than in vain to oppose all amendment. It will break down every artificial barrier that may be reared against it, if it be not quietly and wisely directed in those channels which it seeks at the least expense to security and stability. Surely it is not conceding too much to this spirit to admit, that laws should be composed in accurate but perspicuous language, without redundancy of words or involution of sentences; that the policy of public measures should not be wrapt up in the folds of State mystery; and that all legislation should be based upon the principle of leaving the greatest liberty of private judgment and action, consistent with public peace and private security. A blind attachment to principles of jurisprudence or rules of law because they are ancient, when the advancement of the useful arts, the new combinations of trade and business, and the influence of more rapid and general intercourse demand their repeal or modification, is as much to be deprecated as rash innovation and unceasing experiment. Indeed it scarcely ever fails to defeat its own end, and though it may retard for a while, renders the course of reform more destructive than it otherwise would have been. True conservatism is gradualism—the movement onward by slow, cautious, and firm steps—but still movement, and that onward. The world, neither physically, intellectually, nor morally, was made to stand still. As in her daily revolutions on her own axis as well as her annual orbit round the sun, she never returns precisely to the same point in space which she has ever before occupied, it would seem to be the lesson which the Great Author of all Being would most deeply impress upon mind as he has written it upon matter; "by ceaseless motion all that is subsists."
What has thus been very cursorily presented will evince that it is the province of legislation, by slow and cautious steps, to amend the laws, to render them more equal in their operation upon all classes, not favoring the rich more than the poor, nor one class of either more than another, providing an easy, cheap, and expeditious administration of justice by tribunals, whose learning and impartiality shall be so secured as to possess the confidence of the community, and by general rules for the regulation of conduct and the distribution of estates most conformed to the analogies of that system, which is familiar to the people in their common law.
Great as is the influence which the profession of the law can and does exercise upon the legislation of a country, the actual administration of law is entirely in their hands. To a large extent by private counsel, by the publication of works of research and learning, by arguments in courts of justice to assist those who are to determine what is the law, and to apply it to the facts, as well as in the actual exercise of judicature, this whole important province of government, which comes home so nearly to every man's fireside, is intrusted necessarily to lawyers.
In this country we live under the protection of written constitutions; not only so, but written constitutions, which have assumed to place limits upon the power of majorities, acting at least through their ordinary representatives. The construction of these constitutions, or constitutional law as it is termed, forms a very important branch of American jurisprudence. There have been, and are, in other countries, charters, written or unwritten—organic or fundamental laws—but without this distinguishing feature. The fundamental laws, thus established in point of fact, emanate from the government, and have no sanction beyond the oath of those intrusted with the administration of them, the force of public opinion, and the responsibility of the representative to his constituent. Our constitutions emanate not from the government, but the State, the society, the creator of the government; and are, therefore, in the strictest sense of the words, leges legum. The radical principle of our system is, that the act of the legislative body, beyond or contrary to the power confided to it by the Constitution, is a nullity, and absolutely void. The courts must so pronounce, and the executive must execute their judgments with the whole force of the State. Upon such a subject it is best to use the very language—the ipsissima verba—of John Marshall, as, at the same time, expressing the doctrine with the greatest force and perspicuity, and presenting, in the mere statement, the most convincing argument of its importance. "It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must, of necessity, expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the Constitution; if both the law and the Constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply. Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the Constitution and see only the law. This doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that, if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is, in reality, effectual. It would be giving to the legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure." (Marbury v. Madison, 1 Cranch, 177.) More weighty words than these have never, speaking of human things, fallen from the lips of man: weighty in themselves from their own simple but eloquent conclusiveness—weightier still from their unspeakable importance, the immeasurable influence they have had, and, it is to be hoped, will ever continue to have, upon the destinies of the United States of America. The judiciary department, though originating nothing, but acting only when invoked by parties in the prosecution of their rights, is thus necessarily an important political branch of the government. That department spreads the broad and impregnable shield of its protection over the life, limbs, liberty, and property of the citizen, when invaded even by the will of the majority. Our Bills of Rights are, therefore, not mere enunciations of abstract principles, but solemn enactments by the people themselves, guarded by a sufficient sanction. They have not, perhaps, as yet, carried far enough their provisions for the security of property from the unjust action of government. The obligation of contracts has been declared sacred; the right of eminent domain restricted by the provision for compensation. Yet, even as to contracts, the legislature may still exercise dangerous powers over the remedy, short of taking it away entirely, and over the rules of evidence. As to eminent domain, they possess an undefined right to determine the time and manner of ascertaining the compensation. Our constitutions are frequently undergoing revision; and too much care cannot be exercised to strengthen our securities in this quarter. Personal liberty, trial by jury, the elective and other political franchises, liberty of conscience, of speech and of the press, are able to protect themselves in a great measure from their own democratic affinities. It is true, that there really is no difference between wresting from a man the few dollars, the products or savings of his industry for any period of time, and depriving him of his liberty, or chaining him to a log, to work for another during the same period. Property eminently stands in need of every parchment barrier, which has been or can be thrown around it. An eminent Judge in our own State once threw out the opinion that there existed in the Constitution no disaffirmance of the power of the legislature to take the property of an individual for private uses with or without compensation. "The clause," he argued, "by which it is declared that no man's property shall be taken or applied to public use, without compensation made, is a disabling, not an enabling one, and the right would have existed in full force without it." (Harvey v. Thomas, 10 Watts, 63.) Fortunately, the decision of the court in that case did not require a resort to that reasoning, and but little examination was sufficient to satisfy the mind that this obiter dictum was unsustained by either principle or authority. A power in the legislature to take the property of A. and give it to B. directly, would be of the very essence of despotism. When it is declared in the Bill of Rights that no man shall be deprived of his life, liberty, or property, unless by the judgment of his peers, or the law of the land, this phrase, "law of the land," does not mean merely an act of the legislature. If it did, every restriction upon the legislative department would be practically abrogated. By an authority as old as Lord Coke, in commenting upon these same words in Magna Charta, they are to be rendered "without due process of law: that is, by indictment or presentment of good and lawful men, when such deeds be done in due manner, or by writ original of the common law, without being brought into answer but by due process of the common law." (2 Inst. 50.) The American laws are numerous and uniform to the point (see 1 American Law Mag. 315); and the same eminent Judge, to whom reference has been made in a later case, declared his adhesion to the sound and true doctrine in the most emphatic language, without noticing his own previous dictum to the contrary. "It was deemed necessary," said he, "to insert a special provision in the Constitution to enable them (the legislature) to take private property even for public use, and on compensation made; but it was not deemed necessary to disable them specially in regard to taking the property of an individual, with or without compensation, in order to give it to another, not only because the general provision in the Bill of Rights was deemed sufficiently explicit for that, but because it was expected that no legislature would be so regardless of right as to attempt it. Were this reasonable expectation to be disappointed, it would become our plain and imperative duty to obey the immediate and paramount will of the people, expressed by their voices in the adoption of the Constitution, rather than the repugnant will of their delegates acting under a restricted but transcended authority." (Norman v. Heist, 5 W. & S. 171.)
Yet, while the right of private property cannot be thus directly invaded, its security against the acts of the legislature is not as perfect as it might and ought to be made. The legislature must be allowed a large discretion in judging what is a public use: on that pretext much may be brought within its sweep unjustly, and the courts, in the absence of a constitutional rule, would be embarrassed in defining its limits. Experience has shown that much power to do wrong lurks under grants by no means essential to the public good. Besides what has been before referred to, the assumption of judicial functions by the Legislature and the broad field of Chancery jurisdiction over trust estates, which it has been held that they may exercise immediately, if they see fit, instead of vesting them in appropriate tribunals, are fraught with serious danger. The proneness of bodies so constituted to disembarrass themselves of the ordinary rules of evidence, to act upon ex parte statements and testimony imperfectly authenticated, as well as the absence of all legal forms from their proceedings, and their numbers, among whom the responsibility of giving due attention to the case is divided, add to the peril. The power of legislating retrospectively has far too wide a scope; the constitutional inhibition of ex post facto laws having been construed to apply to criminal or penal cases merely, restraining the legislature from making that an offence which was not so at the time of its commission, or increasing the punishment annexed to it. The course of legislation in this country amply demonstrates the wisdom, and even necessity, of extending the same prohibition to civil cases. There is no particular or partial inconvenience, which could outweigh the general benefits of a provision that no law, public or private, should operate retrospectively upon past acts; that the judgment of the tribunals upon every case should be according to the law as it was at the time of the transaction, which the parties were bound to know, and in accordance with which they are to be presumed to have acted.
As well in the domain of public as of private law, the great fundamental principle for judge and counsellor ought to be, THAT AUTHORITY IS SACRED. There is no inconvenience so great, no private hardship so imperative, as to justify the application of a different rule to the resolution of a case, than the existing state of the law will warrant. "There is not a line from his pen," says Mr. Binney of Chief Justice Tilghman, "that trifles with the sacred deposit in his hands by claiming to fashion it according to a private opinion of what it ought to be. Judicial legislation he abhorred, I should rather say, dreaded, as an implication of his conscience. His first inquiry in every case was of the oracles of the law for their response; and when he obtained it, notwithstanding his clear perception of the justice of the cause, and his intense desire to reach it, if it was not the justice of the law, he dared not to administer it. He acted upon the sentiment of Lord Bacon, that it is the foulest injustice to remove landmarks, and that to corrupt the law is to poison the very fountains of justice. With a consciousness that to the errors of the science there are some limits, but none to the evils of a licentious invasion of it, he left it to our annual legislature to correct such defects in the system as time either created or exposed; and better foundation in the law can no man lay." It is not to be denied that there is some difficulty in stating with accuracy the limits of the rule stare decisis. One, or even more than one, recent precedent, especially when it relates to the application rather than to the establishment of a rule, is not of so binding a character that it must be followed, even though contrary to principles adjudged in older cases: but it is just as clear that when a decision has been long acquiesced in, when it has been applied in numerous cases, and become a landmark in the branch of the science to which it relates, when men have dealt and made contracts on the faith of it, whether it relates to the right of property itself, or to the evidence by which that right may be substantiated, though it may appear to us "flatly absurd and unjust," to overrule such a decision is an act of positive injustice, as well as a violation of law, and an usurpation by one branch of the government upon the powers of another. An example will illustrate this position. In the case of Walton v. Shelley (1 Term Rep. 296), in 1786, the King's Bench, Lord Mansfield, Chief Justice, decided that a person is not a competent witness to impeach a security which he has given, though he is not interested in the event of the suit, on the trial of which he is offered. In Jordaine v. Lashbrooke (7 Term Rep. 601), the same court, in 1798, under the presidency of Lord Kenyon, rightly overruled that decision. Now it so happens that Walton v. Shelley was recognized as authority and followed in Pennsylvania, in 1792, in Stille v. Lynch (2 Dall. 194), before it had been overruled in England: and though limited as it was understood to be in Bent v. Baker (3 Term Rep. 34), to negotiable paper (Pleasants v. Pemberton, 2 Dall. 196), it has never been varied from since that time, though it has frequently been admitted that Walton v. Shelley was properly overruled. It ought not now to be overruled in Pennsylvania. "After the decisions cited," says Judge Rogers, in Gest v. Espy (2 Watts, 268), "this cannot be considered an open question, nor do we think ourselves at liberty now to examine the foundations of the rule." Unfortunately our Supreme Court have not always put this sound and wise limitation upon their own power. In the case of Post v. Avery (5 W. & S. 509), they declared in regard to a rule of more than thirty years' standing, and confirmed by numerous cases, that they had "vainly hoped that the inconvenience of the rule would have attracted the attention of the legislature, who alone are competent to abolish it;" but as nothing was to be expected from that quarter, "they were driven by stress of necessity" to overrule a case expressly decided on the authority of the rule. (Hart v. Heilner, 3 Rawle, 407.) And two years afterwards, after having made the remarkable declaration that the legislature alone was competent to abolish the rule, they nevertheless pronounced it "exploded altogether." (McClelland v. Mahon, 1 Barr, 364.)
Lord Bacon says of retrospective laws: "Cujus generis leges raro et magna cum cautione sunt adhibenda: neque enim placet Janus in legibus." Without any saving clause may the epithet and denunciation be applied to judicial laws. They are always retrospective, but worse on many accounts than retrospective statutes. Against the latter we have at least the security of the constitutional provision that prohibits the passage of any law, which impairs the obligation of a contract, executory or executed; and it has been well held that this prohibition applies to such an alteration of the law of evidence in force at the time the contract was made, as would practically destroy the contract itself by destroying the only means of enforcing it. There is no such constitutional provision against judicial legislation. It sweeps away a man's rights, vested, as he had reason to think, upon the firmest foundation, without affording him the shadow of redress. Nor could there, in the nature of things, be any such devised. When a court overrules a previous decision, it does not simply repeal it; it must pronounce it never to have been law. There is no instance on record, in which a court has instituted the inquiry, upon what grounds the suitor had relied in investing his property or making his contract, and relieved him from the disastrous consequences, not of his, but of their mistake, or the mistake of their predecessors. The man who, on the faith of Steele v. The Ph[oe]nix Ins. Co. (3 Binn. 306), decided in 1811, and treated as so well settled in itself and all its logical consequences, that in 1832 (Hart v. Heilner, 3 Rawle, 407) the Supreme Court, declined to hear the counsel, who relied on its authority, invested his money in the purchase of a claim which could be proved only by the testimony of the assignor, found himself stripped of his property by a decision in 1845, the results of which were broader than even the legislature itself would have been competent to effect, or indeed the people themselves in their sovereign capacity, at least so long as the Constitution of the United States continues to be "the supreme law of the land, anything in the constitution and laws of any State to the contrary notwithstanding."
But judicial is much worse than legislative retrospection in another aspect. The act of Assembly, if carefully worded, is at least a certain rule. The act of the judicial legislature is invariably the precursor of uncertainty and confusion. Apply to it a test, which may be set down as unerring, never failing soon to discover the true metal from the base counterfeit: its effect upon litigation. A decision in conformity to established precedents is the mother of repose on that subject; but one that departs from them throws the professional mind at sea without chart or compass. The cautious counsellor will be compelled to say to his client that he cannot advise. One cause is the general uncertainty to which it leads. Men will persuade themselves easily, when it is their interest to be persuaded, that if one well-established rule has been overthrown, another, believed to be quite as wrong and perhaps not so well fortified by time and subsequent cases, may share the same fate. Shall counsel risk advising his client not to prosecute his claim or defence, when another bolder than he, may moot the point and conduct another cause resting upon the same question to a successful termination? The very foundations of confidence and security are shaken. The law becomes a lottery, in which every man feels disposed to try his chance. Another cause of this uncertainty is more particular. A court scarcely ever makes an open and direct overthrow of a deeply founded rule at one stroke. It requires repeated blows. It can be seen to be in danger, but not whether it is finally to fall. Hence it frequently happens that there is a sliding scale of cases; and when the final overthrow comes, it is very difficult to determine, whether any and which steps of the process remain. Shortly after the decision in Post v. Avery, the case of Fraley v. Bispham was tried in one of the inferior courts; in which the Judge, thinking that Post v. Avery, however the intention may have been disclaimed, did in fact overrule Steele v. The Ph[oe]nix, rejected as incompetent one of the nominal plaintiffs, a retiring partner, who upon dissolution had sold out for a price bona fide paid, all his interest in the firm to his copartners, who continued the business. A motion was made for a new trial, and before the rule came on to be heard, Patterson v. Reed (7 W. & S. 144) had appeared, and the court, on the authority of that case, which decided that an assignment must be colorable and made for the purpose of rendering the assignor a witness in order to exclude him, ordered a new trial. Before the case was again called for trial, the first volume of Barr's Reports had been published, in which the Supreme Court said: "The time is come, when the doctrine of Steele v. The Ph[oe]nix Ins. Co. must be exploded altogether. The essential interests of justice demand that the decision in that case be no longer a precedent for anything whatever." (McClelland v. Mahon, 1 Barr, 364.) And the Judge before whom the cause was then tried had no other course left, but again to reject the witness, the very same thing on account of which a new trial had been ordered.
The case of Post v. Avery is a most striking illustration of judicial legislation and its mischievous results. It is usual to hear it excused on account of the unequal and unjust operation of the rule reversed, by which one party was heard but not the other, and the temptation it held out for the manufacture of false claims, to be supported by perjury. But it is to lose sight of the real question involved to raise such an issue: for, like the execution of a notorious culprit by the expeditious process of a mob and a lamp-post, instead of the formalities and delays of law and courts, it may be a very good thing for the community to have rid itself of the offender, but the way by which it was accomplished was a heavy blow at the very root of the tree of public and private security.
There is another decision of the Supreme Court of Pennsylvania, not so bold and avowed an act of judicial legislation as that just mentioned, but not less transparent, which may be cited as strongly illustrating the same consequences of uncertainty and litigation flowing from a disregard of the principle adverted to. From the year 1794, there had existed in Pennsylvania an act of Assembly limiting the lien of the debts of a decedent on his real estate, at first to seven, afterwards to five years. No question ever arose before the court in regard to it. Lien was considered to mean lien and not obligation: lands to be subject to execution for all debts of the owner prosecuted to judgment, and of course not barred by the Statute of Limitations; and the limitation of the lien merely intended for the protection of purchasers from the heirs or devisees or their lien creditors. Such was recognized to be the true meaning of the law in 1795 (Hannum v. Spear, 1 Yeats, 566), and so distinctly ruled in 1830 (Bruch v. Lantz, 2 Rawle, 392); yet on grounds palpably only relevant to what, in the opinion of the court, the law ought to be, it was held in 1832, in Kerper v. Hoch (1 Watts, 9), that the period named was a limitation not of the lien but of the debt itself, and available in favor of heirs and devisees, volunteers under the debtor and succeeding to his rights cum onere. As we have seen, but two cases are to be produced of litigation arising out of this law carried to the highest tribunal from 1794 to 1832. More than twenty cases are to be found reported since, in which that court has been called upon to draw distinctions and settle the precise extent of their own law. Thus a little complicated system has grown up on this construction of the act. A volume, indeed, might be written on Kerper v. Hoch and its satellites, when if the act had been let alone to speak for itself, and the prior decision followed, it would have been a simple and intelligible rule of action, until the legislature saw fit to alter it. It seems that this consideration pressed upon at least one of the judges, who joined in that decision; for in a subsequent case, when Kerper v. Hoch was cited, that Judge, with characteristic candor, interrupted the counsel with the remark: "We will abide by the rule, but it was erroneously decided." (Hocker's Appeal, 4 Barr, 498.)
This, then, is the legitimate province of Jurisprudence, Stare super antiquas vias, to maintain the ancient landmarks, to respect authority, to guard the integrity of the law as a science, that it may be a certain rule of decision, and promote that security of life, liberty, and property, which, as we have seen, is the great end of human society and government. Thus industry will receive its best encouragement; thus enterprise will be most surely stimulated; thus constant additions to capital by savings will be promoted; thus the living will be content in the feeling that their earnings are safely invested; and the dying be consoled with the reflection that the widow and orphan are left under the care and protection of a government, which administers impartial justice according to established laws.
With jurisprudence, lawyers have the most, nay all, to do. The opinion of the Bar will make itself heard and respected on the Bench. With sound views, their influence for good in this respect may well be said to be incalculable. It is indeed the noblest faculty of the profession to counsel the ignorant, defend the weak and oppressed, and to stand forth on all occasions as the bulwark of private rights against the assaults of power, even under the guise of law; but it has still other functions. It is its office to diffuse sound principles among the people, that they may intelligently exercise the controlling power placed in their hands, in the choice of their representatives in the Legislature and of Judges, in deciding, as they are often called upon to do, upon the most important changes in the Constitution, and above all in the formation of that public opinion which may be said in these times, almost without a figure, to be ultimate sovereign. Whether they seek them or are sought, lawyers, in point of fact, always have filled, in much the larger proportion over every other profession, the most important public posts. They will continue to do so, at least so long as the profession holds the high and well-merited place it now does in the public confidence.
There is, perhaps, no profession, after that of the sacred ministry, in which a high-toned morality is more imperatively necessary than that of the law. There is certainly, without any exception, no profession in which so many temptations beset the path to swerve from the line of strict integrity; in which so many delicate and difficult questions of duty are continually arising. There are pitfalls and man-traps at every step, and the mere youth, at the very outset of his career, needs often the prudence and self-denial, as well as the moral courage, which belong commonly to riper years. High moral principle is his only safe guide; the only torch to light his way amidst darkness and obstruction. It is like the spear of the guardian angel of Paradise:
No falsehood can endure Touch of celestial temper, but returns Of force to its own likeness.
The object of this Essay is to arrive at some accurate and intelligible rules by which to guide and govern the conduct of professional life. It would not be a difficult task to declaim in general propositions—to erect a perfect standard and leave the practitioner to make his own application to particular cases. It is a difficult task, however, as it always is in practice, to determine the precise extent of a principle, so as to know when it is encountered and overcome by another—to weigh the respective force of duties which appear to come in conflict. In all the walks of life men have frequently to do this: in none so often as at the Bar.
The responsibilities, legal and moral, of the lawyer, arise from his relations to the court, to his professional brethren and to his client. It is in this order that it is proposed to consider and discuss the various topics which grow out of this subject.
The oath directed by law in this State to be administered upon the admission of an attorney to the bar, "to behave himself in the office of attorney according to the best of his learning and ability, and with all good fidelity, as well to the court as to the client; that he will use no falsehood, nor delay any man's cause for lucre or malice," presents a comprehensive summary of his duties as a practitioner.
Fidelity to the court, fidelity to the client, fidelity to the claims of truth and honor: these are the matters comprised in the oath of office.
It is an oath of office, and the practitioner, the incumbent of an office—an office in the administration of justice—held by authority from those who represent in her tribunals the majesty of the commonwealth, a majesty truly more august than that of kings or emperors. It is an office, too, clothed with many privileges—privileges, some of which are conceded to no other class or profession. It is, therefore, that the legislature have seen fit to require that there should be added to the solemnity of the responsibility, which every man virtually incurs when he enters upon the practice of his profession, the higher and more impressive sanction of an appeal to the Searcher of all Hearts.
Fidelity to the court, requires outward respect in words and actions. The oath as it has been said, undoubtedly looks to nothing like allegiance to the person of the judge; unless in those cases where his person is so inseparable from his office, that an insult to the one, is an indignity to the other. In matters collateral to official duty, the judge is on a level with the members of the bar, as he is with his fellow-citizens; his title to distinction and respect resting on no other foundation, than his virtues and qualities as a man. There are occasions, no doubt, when duty to the interests confided to the charge of the advocate demands firm and decided opposition to the views expressed or the course pursued by the court, nay, even manly and open remonstrance; but this duty may be faithfully performed, and yet that outward respect be preserved, which is here inculcated. Counsel should ever remember how necessary it is for the dignified and honorable administration of justice, upon which the dignity and honor of their profession entirely depend, that the courts and the members of the courts, should be regarded with respect by the suitors and people; that on all occasions of difficulty or danger to that department of government, they should have the good opinion and confidence of the public on their side. Good men of all parties prefer to live in a country, in which justice according to law is impartially administered. Counsel should bear in mind also the wearisomeness of a judge's office; how much he sees and hears in the course of a long session, to try his temper and patience. Lord Campbell has remarked that it is rather difficult for a judge altogether to escape the imputation of discourtesy if he properly values the public time; for one of his duties is to "render it disagreeable to counsel to talk nonsense." Respectful submission, nay, most frequently, even cheerful acquiescence in a decision, when, as is most generally the case, no good result to his cause can grow from any other course, is the part of true wisdom as well as civility. An exception may be noted to the opinion of the Bench, as easily in an agreeable and polite, as in a contemptuous and insulting manner. The excitement of the trial of a cause caused by the conflict of testimony, making often the probabilities of success to vibrate backwards and forwards with as much apparent uncertainty as the chances in a game of hazard, is no doubt often the reason and apology for apparent disrespect in manner and language; but let it be observed, that petulance in conflicts with the Bench, which renders the trial of causes disagreeable to all concerned, has most generally an injurious effect upon the interests of clients.
Indeed, it is highly important that the temper of an advocate should be always equal. He should most carefully aim to repress everything like excitability or irritability. When passion is allowed to prevail, the judgment is dethroned. Words are spoken, or things done, which the parties afterwards wish could be unsaid or undone. Equanimity and self-possession are qualities of unspeakable value. An anecdote may serve to illustrate this remark. There was a gentleman of the Bar of Philadelphia, many years ago, who possessed these qualities in a very remarkable degree. He allowed nothing that occurred in a cause to disturb or surprise him. On an occasion in one of the neighboring counties, the circuit of which it was his custom to ride, he was trying a cause on a bond, when a witness for defendant was introduced, who testified that the defendant had taken the amount of the bond, which was quite a large sum, from his residence to that of the obligee, a distance of several miles, and paid him in silver in his presence. The evidence was totally unexpected; his clients were orphan children; all their fortune was staked on this case. The witness had not yet committed himself as to how the money was carried. Without any discomposure—without lifting his eyes or pen from paper—he made on the margin of his notes of trial a calculation of what that amount in silver would weigh; and when it came his turn to cross-examine, calmly proceeded to make the witness repeat his testimony step by step,—when, where, how, and how far the money was carried—and then asked him if he knew how much that sum of money weighed, and upon naming the amount, so confounded the witness, party, and counsel engaged for the defendant, that the defence was at once abandoned, and a verdict for the plaintiff rendered on the spot.
Another plain duty of counsel is to present every thing in the cause to the court openly in the course of the public discharge of its duties. It is not often, indeed, that gentlemen of the Bar so far forget themselves as to attempt to exert privately an influence upon the judge, to seek private interviews, or take occasional opportunities of accidental or social meetings to make ex parte statements, or to endeavor to impress their views. They know that such conduct is wrong in itself, and has a tendency to impair confidence in the administration of justice, which ought not only to be pure but unsuspected. A judge will do right to avoid social intercourse with those who obtrude such unwelcome matters upon his moments of relaxation. There is one thing, however, of which gentlemen of the Bar are not sufficiently careful,—to discourage and prohibit their clients from pursuing a similar course. The position of the judge in relation to a cause under such circumstances is very embarrassing, especially, as is often the case, if he hears a good deal about the matter before he discovers the nature of the business and object of the call upon him. Often the main purpose of such visits is not so much to plead the cause, as to show the judge who the party is—an acquaintance, perhaps—and thus, at least, to interest his feelings. Counsel should set their faces against all undue influences of the sort; they are unfaithful to the court, if they allow any improper means of the kind to be resorted to. Judicem nec de obtinendo jure orari oportet nec de injuria exorari. It may be in place to remark here that the counsel in a cause ought to avoid all unnecessary communication with the jurors before or during any trial in which he may be concerned. He should enforce the same duty upon his client. Any attempt by an attorney to influence a juror by arguments or otherwise, will, of course, if discovered and brought to the notice of the court, lead to expulsion or suspension from the Bar, according to the degree and quality of the offence. The freedom of the jury-box from extraneous influences is a matter of such vital moment in our system that the courts are bound to watch over it with jealous eyes. "It would be an injury to the administration of justice," says C. J. Tilghman, "not to declare that it is gross misbehavior for any person to speak with a juror, or for a juror to permit any person to speak with him, respecting the cause he is trying, at any time after he is summoned and before the verdict is delivered." "The words thus uttered," says Judge Hare, "by one of the best men and purest magistrates that ever filled the judicial office, must find an echo in every bosom. The principle which dictated them does not require the aid of argument or elucidation; it is native to the conscience, and will be apparent to all who consult the monitor in their own breast. The wrong is aggravated when the taint of personal interest mingles with it, as when committed by a party to the cause, but appears in the worst form when it is the act of attorneys or counsel, who are the sworn officers of the court, whose duty it is to act as guardians of the fountains of justice, and who are false to their charge when they defile or taint those waters, which they are pledged to keep pure and unpolluted. Such conduct in counsel is a gross breach of trust, for which a removal from the trust is but an inadequate punishment."
There is another duty to the court, and that is, to support and maintain it in its proper province wherever it comes in conflict with the co-ordinate tribunal—the jury. The limits of these two provinces are settled with great accuracy; and even if a judge makes a mistake, the only proper place to correct his error is in the superior tribunal,—the Court of Errors. It has been held in a multitude of cases, that verdicts against the charge of the court in point of law, will be set aside without limitation as to the number of times, and that without regard to the question whether the direction of the court in point of law was right or wrong. There is a technical reason, which makes this course in all cases imperative. The losing party, if the jury were allowed to decide the law for him, would be deprived of his exception, and of his unquestionable right to have the law of his case pronounced upon by the Supreme Court. Ad questiones juris respondeant judices,—ad questiones facti juratores. A disregard by the jury of the law, as laid down by the judge, is always therefore followed by additional and unnecessary delay and expense, and it is never an advantage to a party in the long run to obtain a verdict in opposition to the direction of the court. It is best for counsel to say in such cases, where nothing is left by the charge to the jury, that they do not ask for a verdict. It has a fair, candid, and manly aspect towards court, jury, opposite party, and even client. Instances of counsel urging or endeavoring to persuade a jury to disregard the charge may sometimes occur, but they are exceedingly rare when there is good feeling between the Bench and the Bar, and when the members of the profession have just and enlightened views of their duty as well as interest.
It need hardly be added that a practitioner ought to be particularly cautious, in all his dealings with the court, to use no deceit, imposition, or evasion—to make no statements of facts which he does not know or believe to be true—to distinguish carefully what lies in his own knowledge from what he has merely derived from his instructions—to present no paper-books intentionally garbled. "Sir Matthew Hale abhorred," says his biographer, "those too common faults of misrepresenting evidence, quoting precedents or books falsely, or asserting anything confidently by which ignorant juries and weak judges are too often wrought upon." One such false step in a young lawyer will do him an injury in the opinion of the Bench and of his professional brethren, which it will take years to redeem, if indeed it ever can be entirely redeemed.
A very great part of a man's comfort, as well as of his success at the Bar, depends upon his relations with his professional brethren. With them he is in daily necessary intercourse, and he must have their respect and confidence, if he wishes to sail along in smooth waters. He cannot be too particular in keeping faithfully and liberally every promise or engagement he may make to them. One whose perfect truthfulness is even suspected by his brethren at the Bar has always an uneasy time of it. He will be constantly mortified by observing precautions taken with him which are not used with others. It is not only morally wrong but dangerous to mislead an opponent, or put him on a wrong scent in regard to the case. It would be going too far to say that it is ever advisable to expose the weakness of a client's cause to an adversary, who may be unscrupulous in taking advantage of it; but it may be safely said, that he who sits down deliberately to plot a surprise upon his opponent, and which he knows can succeed only by its being a surprise, deserves to fall, and in all probability will fall, into the trap which his own hands have laid. "Whoso diggeth a pit," says the wise man, "shall fall therein, and he that rolleth a stone, it will return upon him." If he should succeed, he will have gained with his success not the admiration and esteem, but the distrust and dislike of one of his associates as long as he lives. He should never unnecessarily have a personal difficulty with a professional brother. He should neither give nor provoke insult. Nowhere more than at the Bar is that advice valuable:
"Beware Of entrance to a quarrel; but being in, Bear it that the opposed may beware of thee."
There is one more caution to be given under this head. Let him shun most carefully the reputation of a sharp practitioner. Let him be liberal to the slips and oversights of his opponent wherever he can do so, and in plain cases not shelter himself behind the instructions of his client. The client has no right to require him to be illiberal—and he should throw up his brief sooner than do what revolts against his own sense of what is demanded by honor and propriety.
Nothing is more certain than that the practitioner will find, in the long run, the good opinion of his professional brethren of more importance than that of what is commonly called the public. The foundations of the reputation of every truly great lawyer will be discovered to have been laid here. Sooner or later, the real public—the business men of the community, who have important lawsuits, and are valuable clients—indorse the estimate of a man entertained by his associates of the Bar, unless indeed there be some glaring defect of popular qualities. The community know that they are better qualified to judge of legal attainments, that they have the best opportunity of judging, and that they are slow in forming a judgment. The good opinion and confidence of the members of the same profession, like the King's name on the field of battle, is "a tower of strength;" it is the title of legitimacy. The ambition to please the people, to captivate jurors, spectators, and loungers about the court room, may mislead a young man into pertness, flippancy, and impudence, things which often pass current for eloquence and ability with the masses; but the ambition to please the Bar can never mislead him. Their good graces are only to be gained by real learning, by the strictest integrity and honor, by a courteous demeanor, and by attention, accuracy and punctuality in the transaction of business.
The topic of fidelity to the client involves the most difficult questions in the consideration of the duty of a lawyer.
He is legally responsible to his client only for the want of ordinary care and ordinary skill. That constitutes gross negligence. It is extremely difficult to fix upon any rule which shall define what is negligence in a given case. The habits and practice of men are widely different in this regard. It has been laid down that if the ordinary and average degree of diligence and skill could be determined, it would furnish the true rule. Though such be the extent of legal liability, that of moral responsibility is wider. Entire devotion to the interest of the client, warm zeal in the maintenance and defence of his rights, and the exertion of his utmost learning and ability,—these are the higher points, which can only satisfy the truly conscientious practitioner.
But what are the limits of his duty when the legal demands or interests of his client conflict with his own sense of what is just and right? This is a problem by no means of easy solution.
That lawyers are as often the ministers of injustice as of justice is the common accusation in the mouth of gainsayers against the profession. It is said there must be a right and a wrong side to every lawsuit. In the majority of cases it must be apparent to the advocate, on which side is the justice of the cause; yet he will maintain, and often with the appearance of warmth and earnestness, that side which he must know to be unjust, and the success of which will be a wrong to the opposite party. Is he not then a participator in the injustice?
It may be answered in general:—
Every case is to be decided by the tribunal before which it is brought for adjudication upon the evidence, and upon the principles of law applicable to the facts as they appear upon the evidence. No court or jury are invested with any arbitrary discretion to determine a cause according to their mere notions of justice. Such a discretion vested in any body of men would constitute the most appalling of despotisms. Law, and justice according to law—this is the only secure principle upon which the controversies of men can be decided. It is better on the whole that a few particular cases of hardship and injustice, arising from defect of evidence or the unbending character of some strict rule of law, should be endured, than that general insecurity should pervade the community from the arbitrary discretion of the judge. It is this which has blighted the countries of the East as much as cruel laws or despotic executives. Thus the legislature has seen fit in certain cases to assign a limit to the period within which actions shall be brought; in order to urge men to vigilance, and to prevent stale claims from being suddenly revived against men whose vouchers are destroyed or whose witnesses are dead. It is true, in foro conscientiae, a defendant, who knows that he honestly owes the debt sued for and that the delay has been caused by indulgence or confidence on the part of his creditor, ought not to plead the statute. But if he does plead it, the judgment of the court must be in his favor.
Now the lawyer is not merely the agent of the party; he is an officer of the court. The party has a right to have his case decided upon the law and the evidence, and to have every view presented to the minds of his judges, which can legitimately bear upon that question. This is the office which the advocate performs. He is not morally responsible for the act of the party in maintaining an unjust cause, nor for the error of the court, if they fall into error, in deciding it in his favor. The court or jury ought certainly to hear and weigh both sides; and the office of the counsel is to assist them by doing that, which the client in person, from want of learning, experience, and address, is unable to do in a proper manner. The lawyer, who refuses his professional assistance because in his judgment the case is unjust and indefensible, usurps the functions of both judge and jury.
As an answer to any sweeping objection made to the profession in general, the view thus presented may be quite satisfactory. It by no means follows, however, as a principle of private action for the advocate, that all causes are to be taken by him indiscriminately and conducted with a view to one single end, success. It is much to be feared, however, that the prevailing tone of professional ethics leads practically to this result. He has an undoubted right to refuse a retainer, and decline to be concerned in any cause, at his discretion. It is a discretion to be wisely and justly exercised. When he has once embarked in a case, he cannot retire from it without the consent of his client or the approbation of the court. To come before the court with a revelation of facts, damning to his client's case, as a ground for retiring from it, would be a plain breach of the confidence reposed in him, and the law would seal his lips. How then is he to acquit himself? Lord Brougham, in his justly celebrated defence of the Queen, went to very extravagant lengths upon this subject; no doubt he was led by the excitement of so great an occasion to say what cool reflection and sober reason certainly never can approve. "An advocate," said he, "in the discharge of his duty knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and among them to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction he may bring upon others. Separating the duty of a patriot from that of an advocate, he must go on reckless of consequences; though it should be his unhappy lot to involve his country in confusion."
On the other hand, and as illustrative of the practical difficulty, which this question presented to a man, with as nice a perception of moral duty as perhaps ever lived, it is said by Bishop Burnet, of Sir Matthew Hale: "If he saw a cause was unjust, he for a great while would not meddle further in it, but to give his advice that it was so; if the parties after that would go on, they were to seek another counsellor, for he would assist none in acts of injustice; if he found the cause doubtful or weak in point of law, he always advised his clients to agree their business. Yet afterwards he abated much of the scrupulosity he had about causes that appeared at first unjust, upon this occasion; there were two causes brought him, which by the ignorance of the party or their attorney, were so ill-represented to him that they seemed to be very bad; but he inquiring more narrowly into them, found they were really very good and just; so after this he slackened much of his former strictness of refusing to meddle in causes upon the ill circumstances that appeared in them at first."
It may be delicate and dangerous ground to tread upon to undertake to descend to particulars upon such a subject. Every case must, to a great degree, depend upon its own circumstances, known, peradventure, to the counsel alone; and it will often be hazardous to condemn either client or counsel upon what appears only. A hard plea—a sharp point—may subserve what is at bottom an honest claim, or just defence; though the evidence may not be within the power of the parties, which would make it manifest.
There are a few propositions, however, which appear to me to be sound in themselves, and calculated to solve this problem practically in the majority of cases: at least to assist the mind in coming to a safe conclusion in foro conscientiae, in the discharge of professional duty.
There is a distinction to be made between the case of prosecution and defence for crimes; between appearing for a plaintiff in pursuit of an unjust claim, and for a defendant in resisting what appears to be a just one.
Every man, accused of an offence, has a constitutional right to a trial according to law: even if guilty, he ought not to be convicted and undergo punishment unless upon legal evidence; and with all the forms which have been devised for the security of life and liberty. These are the panoply of innocence when unjustly arraigned; and guilt cannot be deprived of it, without removing it from innocence. He is entitled, therefore, to the benefit of counsel to conduct his defence, to cross-examine the witnesses for the State, to scan, with legal knowledge, the forms of the proceeding against him, to present his defence in an intelligible shape, to suggest all those reasonable doubts which may arise from the evidence as to his guilt, and to see that if he is convicted, it is according to law. A circumstance the celebrated Lord Shaftesbury once so finely turned to his purpose must often happen to a prisoner at his trial. Attempting to speak on the bill for granting counsel to prisoners in cases of high treason, he was confounded, and for some time could not proceed, but recovering himself, he said, "What now happened to him would serve to fortify the arguments for the bill. If he innocent and pleading for others was daunted at the augustness of such an assembly, what must a man be who should plead before them for his life?" 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. 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.
It is a different thing to engage as private counsel in a prosecution against a man whom he knows or believes to be innocent. Public prosecutions are carried on by a public officer, the Attorney-General, or those who act in his place; and it ought to be a clear case to induce gentlemen to engage on behalf of private interests or feelings, in such a prosecution. It ought never to be done against the counsel's own opinion of its merits. There is no call of professional duty to balance the scale, as there is in the case of a defendant. It is in every case but an act of courtesy in the Attorney-General to allow private counsel to take part for the Commonwealth; such a favor ought not to be asked, unless in a cause believed to be manifestly just. The same remarks apply to mere assistance in preparing such a cause for trial out of court, by getting ready and arranging the evidence and other matters connected with it: as the Commonwealth has its own officers, it may well, in general, be left to them. There is no obligation on an attorney to minister to the bad passions of his client; it is but rarely that a criminal prosecution is pursued for a valuable private end, the restoration of goods, the maintenance of the good name of the prosecutor, or closing the mouth of a man who has perjured himself in a court of justice. The office of Attorney-General is a public trust, which involves in the discharge of it, the exertion of an almost boundless discretion, by an officer who stands as impartial as a judge. "The professional assistant, with the regular deputy, exercises not his own discretion, but that of the Attorney-General, whose locum tenens at sufferance, he is; and he consequently does so under the obligation of the official oath." On the other hand, if it were considered that a lawyer was bound or even had a right to refuse to undertake the defence of a man because he thought him guilty, if the rule were universally adopted, the effect would be to deprive a defendant, in such cases, of the benefit of counsel altogether.
The same course of remark applies to civil causes. A defendant has a legal right to require that the plaintiffs demand against him should be proved and proceeded with according to law. If it were thrown upon the parties themselves, there would he a very great inequality between them, according to their intelligence, education, and experience, respectively. Indeed, it is one of the most striking advantages of having a learned profession, who engage as a business in representing parties in courts of justice, that men are thus brought nearer to a condition of equality, that causes are tried and decided upon their merits, and do not depend upon the personal characters and qualifications of the immediate parties. Thus, too, if a suit be instituted against a man to recover damages for a tort, the defendant has a right to all the ingenuity and eloquence he can command in his defence, that even if he has committed a wrong, the amount of the damages may not exceed what the plaintiff is justly entitled to recover. But the claim of a plaintiff stands upon a somewhat different footing. Counsel have an undoubted right, and are in duty bound, to refuse to be concerned for a plaintiff in the legal pursuit of a demand, which offends his sense of what is just and right. The courts are open to the party in person to prosecute his own claim, and plead his own cause; and although he ought to examine and be well-satisfied before he refuses to a suitor the benefit of his professional skill and learning, yet it would be on his part an immoral act to afford that assistance, when his conscience told him that the client was aiming to perpetrate a wrong through the means of some advantage the law may have afforded him. "It is a popular but gross mistake," says the late Chief Justice Gibson, "to suppose that a lawyer owes no fidelity to any one except his client, and that the latter is the keeper of his professional conscience. He is expressly bound by his official oath to behave himself, in his office of attorney, with all fidelity to the court as well as the client; and he violates it when he consciously presses for an unjust judgment, much more so when he presses for the conviction of an innocent man.... The high and honorable office of a counsel would be degraded to that of a mercenary, were he compelled to do the biddings of his client against the dictates of his conscience." The sentiment has been expressed in flowing numbers by our great commentator, Sir William Blackstone:—
"To Virtue and her friends a friend, Still may my voice the weak defend: Ne'er may my prostituted tongue Protect the oppressor in his wrong; Nor wrest the spirit of the laws, To sanctify the villain's cause."
Another proposition which may be advanced upon this subject is, that there may and ought to be a difference made in the mode of conducting a defence against what is believed to be a righteous, and what is believed to be an unrighteous claim. A defence in the former case should be conducted upon the most liberal principles. When he is contending against the claim of one, who is seeking, as he believes, through the forms of law, to do his client an injury, the advocate may justifiably avail himself of every honorable ground to defeat him. He may begin at once by declaring to his opponent or his professional adviser, that he holds him at arm's length, and he may keep him so during the whole contest. He may fall back upon the instructions of his client, and refuse to yield any legal vantage ground, which may have been gained through the ignorance or inadvertence of his opponent. Counsel, however, may and even ought to refuse to act under instructions from a client to defeat what he believes to be an honest and just claim, by insisting upon the slips of the opposite party, by sharp practice, or special pleading—in short, by any other means than a fair trial on the merits in open court. There is no professional duty, no virtual engagement with the client, which compels an advocate to resort to such measures, to secure success in any cause, just or unjust; and when so instructed, if he believes it to be intended to gain an unrighteous object, he ought to throw up the cause, and retire from all connection with it, rather than thus he a participator in other men's sins.
Moreover, no counsel can with propriety and a good conscience express to court or jury his belief in the justice of his client's cause, contrary to the fact. Indeed, the occasions are very rare in which he ought to throw the weight of his own private opinion into the scales in favor of the side he has espoused. If that opinion has been formed on a statement of facts not in evidence, it ought not to be heard,—it would be illegal and improper in the tribunal to allow any force whatever to it; if on the evidence only, it is enough to show from that the legal and moral grounds on which such opinion rests. Some very sound and judicious observations have been made by Mr. Whewell in a recent work on the Elements of Moral and Political Science, which deserve to be quoted at length;—
"Some moralists," says he, "have ranked with the cases in which convention supersedes the general rule of truth, an advocate asserting the justice, or his belief in the justice, of his client's cause. Those who contend for such indulgence argue that the profession is an instrument for the administration of justice: he is to do all he can for his client: the application of laws is a matter of great complexity and difficulty: that the right administration of them in doubtful cases is best provided for if the arguments on each side are urged with the utmost force. The advocate is not the judge.
"This may be all well, if the advocate let it be so understood. But if in pleading he assert his belief that his cause is just when he believes it unjust, he offends against truth, as any other man would do who in like manner made a like assertion.
"Every man, when he advocates a case in which morality is concerned, has an influence upon his hearers, which arises from the belief that he shares the moral sentiments of all mankind. This influence of his supposed morality is one of his possessions, which, like all his possessions, he is bound to use for moral ends. If he mix up his character as an advocate with his character as a moral agent, using his moral influence for the advocate's purpose, he acts immorally. He makes the moral rule subordinate to the professional rule. He sells to his client not only his skill and learning, but himself. He makes it the supreme object of his life to be not a good man, but a successful lawyer.
"There belong to him, moreover, moral ends which regard his profession; namely, to make it an institution fitted to promote morality. To raise and purify the character of the profession, so that it may answer the ends of justice without requiring insincerity in the advocate, is a proper end for a good man who is a lawyer; a purpose on which he may well and worthily employ his efforts and influence."
Nothing need be added to enforce what has been so well said. The remark, however, may be permitted, that the expression of private opinion as to the merits of a controversy often puts the counsel at fearful odds. A young man, unknown to the court or the jury, is trying his first case against a veteran of standing and character: what will the asseveration of the former weigh against that of the latter? In proportion, then, to the age, experience, maturity of judgment, and professional character of the man, who falsely endeavors to impress the court and jury with the opinion of his confidence in the justice of his case, in that proportion is there danger that injury will be done and wrong inflicted—in that proportion is there moral delinquency in him who resorts to it.