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 PREFACE. INTRODUCTION. PROFESSIONAL ETHICS. APPENDIX. No. I. No. II. No. III. 

PROFESSIONAL ETHICS. 

AN ESSAY ON PROFESSIONAL ETHICS. 

by

GEORGE SHARSWOOD. 

 Id non eo tantum, quod si vis illa dicendi malitiam instruxerit, nihil sit publicis privatisque rebus perniciosius eloquentia: sed nos quoque ipsi, qui pro virile parte conferre aliquid ad facultatem dicendi conati sumus, pessime mereamur de rebus humanis, SI LATRONI COMPAREMUS HÆC ARMA, NON MILITI. QUINCT. DE INST. OR. 

Second Edition. 

Philadelphia:T. & J. W. Johnson & Co. , Law Booksellers and Publishers, No. 535 Chestnut Street. 1860. 

Entered, according to Act of Congress, in the year 1860, by T. & J. W. Johnson & Co. , in the Clerk's Office of the District Court for the Eastern Districtof Penn'a. 

C. Sherman & Son, Printers, S. W. Cor. Seventh and Cherry Streets, Philadelphia. 

 TO

 MY HONORED MASTER, JOSEPH R. INGERSOLL, LL. D. , INSCRIBED

 AS A

 TESTIMONY OF

 RESPECT AND GRATITUDE. 

PREFACE. 

The following Essay was originally published under the title of "ACompend of Lectures on the Aims and Duties of the Profession of the Law, delivered before the Law Class of the University of Pennsylvania. " Aportion of it had been read by the author as an Introductory Lecture atthe opening of the Fifth Session of the Law Department of thatInstitution, October 2d, 1854. The young gentlemen, alumni, and studentsof the school, who were present on that occasion, requested a copy forpublication, in order that each of them might possess a memento of theirconnection with the Institution. The author preferred to publish theentire Compend than merely a part of it. He hesitated much in doing so, because the questions discussed are difficult, and opinions upon themvariant, and he could scarcely hope that he had in every case succeededin just discrimination. A review of the matter now, when a secondedition has been called for, has suggested, however, no important changein the principles advanced, though a few additions have been made, someinaccuracies corrected, and an introduction upon the importance of theprofession, in a public point of view, prefixed. 

 G. S. 

INTRODUCTION. 

The dignity and importance of the Profession of the Law, in a publicpoint of view, can hardly be over-estimated. It is in its relation tosociety at large that it is proposed to consider it. This may be done byshowing its influence upon legislation and jurisprudence. These are theright and left hands of government in carrying out the great purposes ofsociety. By legislation is meant the making of law--its primaryenactment or subsequent alteration. Jurisprudence is the science of whatthe law is or means, and its practical application to cases as theyarise. The province of legislation is _jus dare_--of jurisprudence, _jus dicere_. The latter is entirely in the hands of lawyers as abody--the former almost entirely. 

Legislation is indeed a nobler work than even jurisprudence. It is thenoblest work in which the intellectual powers of man can be engaged, asit resembles most nearly the work of the Deity. It is employed as wellin determining what is right or wrong in itself--the due proportion ofinjuries and their remedies or punishments--as in enforcing what isuseful and expedient. How wide the scope of such a work! The power ofsociety over its individual members, or, in other words, sovereignty, which is practically vested in the legislature, is a type of the Divinepower which rules the physical and moral universe. "There is oneLawgiver, " says the Apostle James. Not that the Supreme Being is thesole universal lawgiver in the sense of a creator of law, whose willalone determines the boundaries of right and wrong. God is the creatorof the beings who are the subjects of law. He is the author of law--theone lawgiver--in the same sense that he, who first discovered a plainfigure, may be said to be the author of all theorems, which may bepredicated 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 bemathematically demonstrated in respect to it. 

Law in its true sense is not the work of mere will--not an act ofintellectual caprice. It is a severe and necessary deduction from therelations of things. The Divine legislator sees and knows theserelations perfectly. He can draw no wrong deduction from them. He canmake no mistake. Whatever laws have certainly emanated from Him arecertainly right. This is the sense in which it is true that "there isone Lawgiver:" all others but attempt the work; He alone is competent toperform it. There is no mathematical certainty in our reasoning on moralas there is on physical relations. We know that the three angles of atriangle are equal to two right angles with an assurance we can neverhave in regard to any moral truth whatever. The Divine law is adeduction necessarily and mathematically certain as much so as any truthin geometry. Human law can aim only at such a probable deduction asresults 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 beena divinely commissioned lawgiver. These laws were not intended for anyother people than the Israelites; they were adapted to theircircumstances, climate, country, neighbors, to the period of the worldwhen they were promulgated, and during which they were to prevail. Theywere 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 foundthere which are unnecessary and superfluous if applied elsewhere. Manyactions, innocent in themselves, are prohibited. All the _malaprohibita_ 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 wasthe author of these laws, nothing morally wrong was commanded orallowed by them. When it was said of the Jews through the prophet, "Igave them statutes which were not good, " it cannot mean not morallygood; laws which it would be sinful in them to obey. The word in theoriginal is not the word appropriated in that language to right, conformity to rule, but to goodness in its most general sense. Goodstatutes mean wise and expedient statutes. By no process can the logicalmind be brought to the conclusion that the perfectly wise and goodlawgiver, in framing a code of laws for any people, would impose as apunishment "for the hardness of their hearts, " a penalty, submission towhich would itself be punishable as a sin against the law of nature. Hemight command or allow as such punishment what in itself was inexpedientand injurious to them, and which upon the promulgation of a new lawrepealing the old and prohibiting what it allowed, would become by thesanction of the same lawgiver thenceforth universally _malumprohibitum_. The authority of God as a lawgiver is certainly notconfined to a mere declaration of what is right or wrong by the law ofNature. 

There can be no merely arbitrary laws. It is necessary to bear in mindthat we are now considering the province of the legislator, who ought toenact 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 anabsolute power of restraining or altering the rights of the subjects: itis limited in its own nature to its proper objects, to those rights onlyin which the common good of the society or of its several parts requiressome restraint or alteration. So that whenever we call the civillegislative power, either of society in general or of a particularlegislative body within any society, an absolute legislative power, wecan only mean that it has no external check upon it in fact; for allcivil legislative power is in its own nature under an internal check ofright: it is a power of restraining or altering the rights of thesubjects for the purpose of advancing or securing the general good, andnot of restraining or altering them for any purpose whatever, and muchless for no purpose at all. " There are, therefore, no arbitrary lawswhich fulfil the end of law. Doubtless the true objects of society andgovernment may be mistaken by him who sets up to be law-maker, or ifthose objects are properly appreciated, the means for advancing them maybe mistaken. It is not wonderful that in a matter which demands thehighest wisdom, many should try and fail. 

It becomes important to inquire what are the true ends of society andgovernment? Man is a gregarious animal--a social being. He may exist insolitude, but he cannot enjoy life: he cannot perfect his nature. Thosewho have watched and studied closely the habits of those irrationalanimals, who live in communities, as the ant, the bee, and the beaver, have observed not only a settled system and subordination, but theexistence of some wonderful faculty, like articulate speech, by whichcommunication takes place from one to another; a power essential toorder. 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 thatsociety was necessary to the perfection of his physical, intellectual, and moral powers, in order to give the fullest return to the labor ofhis hands and to secure the greatest advances in knowledge and wisdom. It is for no vain national power or glory, for no experimentalabstraction, that governments are instituted among men. It is for man asan individual. It is to promote his development; and in that consistshis true happiness. The proposition would be still more accurate were itsaid, society is constituted that men may be free--free to developthemselves--free to seek their own happiness, following their owninstincts or conclusions. Without society--and government, which ofcourse results from it--men would not be free. An individual in a stateof isolation might defend himself from savage beasts, and more savagemen, 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 foresightto meet such a contingency, would become the prey of the stronger. Thecomparatively weak-minded and ignorant would be constantly subject tothe frauds of the more cunning. 

It is enough to look at the effects of the division of employments andthe invention of labor-saving machinery, to recognize the invaluableresults of society in the development of wealth and power. In a state ofisolation a man's entire time and strength would be needed for thesupply of his physical wants. As men advance in knowledge and wisdom thestandard of their mere physical wants is elevated. They demand morespacious and comfortable dwellings, more delicate viands and finerclothing. 

 "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 theirstyle of living were reduced to the greatest plainness consistent withbare comfort. Our taste in this respect, as for the fine arts, as itbecomes more refined, becomes more susceptible of high enjoyment. Whenlarge fortunes are suddenly made by gambling, or what is equivalentthereto, then it is that baleful luxury is introduced--a style of livingbeyond the means of those who adopt it, and spreading through allclasses. 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 notspend it extravagantly. If they use it liberally, that creates no envyin their poorer neighbor, no ruinous effort to equal what is recognizedto be the due reward of industry and economy. The luxury, whichcorrupted and destroyed the republic of Rome, was the result of largefortunes suddenly acquired by the plunder of provinces, the conquests ofunjust wars. The most fruitful source of it, in our own day, is what hasbeen well termed _class legislation_--laws which either directly orindirectly are meant to favor particular classes of the community. Theyare supported by popular reasons and specious arguments, yet there isone 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 unequallegislation; and therefore unwise and unjust. Bentham's rule, thoughfalse as the standard of right and wrong, is in general the true rule ofpractical legislation, the greatest good of the greatest number. It isexpressed with the most force and accuracy by that master of thescience, Bynkershoek; _Utilitas, utilitas, justi PROPE mater et æqui_:in which observe that the word _prope_ is emphatic. Legislation forclasses violates this plain rule of equal justice, and moreover doesnot, in the long run, benefit those for whom it is intended. Theindirect evils upon society at large are even more injurious than thosewhich are direct. Men are often thus poor to-day and rich to-morrow. Thebubble, 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 impartialadministration of equal and just laws. This produces security of life, of liberty, and of property. It has become a favorite maxim, that it isthe duty of government to promote the happiness of the people. Thephrase may be interpreted so as to mean well, but it is a veryinaccurate and unhappy one. It is the inalienable right of men to pursuetheir _own_ happiness; each man under such restraints of law as willleave every other man equally free to do the same. The true and onlytrue object of government is to secure this right. The happiness of thepeople is the happiness of the individuals who compose the mass. Speaking now with reference to those objects only, which human laws canreach and influence, he is the happy man, who sees his condition in lifeconstantly and gradually, though it may be slowly, improving. Letgovernment keep its hands off--do nothing in the way of creating thesubject-matter of speculation--and things naturally fall into thischannel. There will be some speculators, as there will be some gamblers;but they will be few. The stock market is filled with fancies, which thegovernment has manufactured and continues to manufacture to order. It isthe duty of government to encourage the accumulation of the savings ofindustry. The best way to do so is to guard the strong box from theinvasion of others, and not itself to invade it. Property has anespecial claim to protection against the government itself. The power oftaxation in the legislature is in fact a part of the _eminent domain_; apower that must necessarily be reposed in the discretion of everygovernment to furnish the means of its own existence. One grievousinvasion of property--and of course ultimately of labor, from whoseaccumulations all property grows--is by government itself, in the shapeof taxation for objects not necessary for the common defence and generalwelfare. Men have a right not only to be well governed, but to becheaply governed--as cheaply as is consistent with the due maintenanceof that security, for which society was formed and governmentinstituted. This, the sole legitimate end and object of law, is never tobe lost sight of--security to men in the free enjoyment and developmentof their capacities for happiness--SECURITY--nothing less--but nothingmore. To compel men to contribute of the earnings or accumulations ofindustry, their own or inherited, to objects beyond this, not within thelegitimate sphere of legislation, to appropriate the money in the publictreasury to such objects, is a perversion and abuse of the powers ofgovernment, little if anything short of legalized robbery. What is thetrue province of legislation, ought to be better understood. It is worthwhile to remark, that in every new and amended State constitution, thebill of rights spreads over a larger space; new as well as morestringent restrictions are placed upon legislation. There is no dangerof this being carried too far; as Chancellor Kent appears to haveapprehended that it might be. There is not much danger of erring uponthe 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, arefrom their nature peculiarly liable to it. Annual legislatures--withgenerally two-thirds new members every year--increase the evil. Themembers fall into the common mistake, that their commission is to act, not to decide in the first place whether action is necessary. They wouldbe blamed and ridiculed, if they adjourned without doing somethingimportant. Hence the annual volumes of our Acts of Assembly arefearfully growing in bulk. It is not merely of the extent of locallegislation, the vast multiplication of charters for every imaginablepurpose, or of the constantly recurring tampering with the most generalsubjects of interest, finance, revenue, banking, education, pauperism, &c. , that there is reason to complain; but scarce a session of one ofour legislatures passes without rash and ill-considered alterations inthe civil code, vitally affecting private rights and relations. Suchlaws are frequently urged by men, having causes pending, who dare notboldly ask that a law should be made for their particular case, but whodo not hesitate to impose upon the legislature by plausible argumentsthe adoption of some general rule, which by a retrospectiveconstruction, will have the same operation. It is a most monstrouspractice, which lawyers are bound by the true spirit of their oath ofoffice, and by a comprehensive view of their duty to the Constitutionand laws, which they bear so large a part as well in making asadministering, to discountenance and prevent. It is to be feared, thatsometimes it is the counsel of the party who recommends and carefullyframes the bill, which, when enacted into a law, is legislatively todecide the cause. It is time that a resort to such a measure should beregarded in public estimation as a flagrant case of professionalinfidelity and misconduct. 

This brief sketch of the true province of legislation is enough toevince its vast importance. How great is the influence of the lawyersas a class upon legislation! Let any man look upon all that has beendone in this department, and trace it to its sources. He willacknowledge that legislation, good or bad, springs from the Bar. Thereis in this country no class of lawyers confined to the mere business ofthe profession--no mere attorneys--no mere special pleaders--no meresolicitors in Chancery--no mere conveyancers. However more accurate andprofound may be the learning of men, whose studies are thus limited toone particular branch, it is not to be regretted either on account ofits influence on the science or the profession. The American lawyer, considering the compass of his varied duties, and the probable callwhich 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 fromany other profession, are men called to fill the highest public stationsin the service of the country, at home and abroad. The American lawyermust thus extend his researches into all parts of the science, which hasfor its object human government and law: he must study it in its grandoutlines as well as in the filling up of details. He is as frequentlycalled upon to inquire what the law ought to be as what it is. While abroad and marked line separates, and always ought to separate thedepartments of Legislation and Jurisprudence, it is a benefit to boththat the same class of men should be engaged in both. Practice will thusbe liberalized by theory, and theory restrained and corrected bypractice. The mere abstractionist or _doctrinaire_ would aim at theformation of a code of great simplicity: the practitioner sees in it theparent of uncertainty and injustice. Legal propositions cannot be framedwith the certainty of mathematical theories. The most carefully studiedlanguage still leaves room for interpretation and construction. Timeitself, which works such mighty changes in all things, produces a stateof circumstances not in the mind of the lawgiver. The existing system, it may be, is an unwieldy, inconvenient structure, heavy and grotesquefrom the mixed character of its architecture outwardly, inwardly itsspace too much occupied and its inmates embarrassed by passages andcircuities. The abstractionist would at once demolish it, and replace itby a light, commodious and airy dwelling, more symmetrical and chaste inits appearance, better fitted for the comfort and usefulness of itsinhabitants. The practitioner, who has become familiar with it, whoobserves and admires that silent legislation of the people, which showsitself not on the pages of the statute book, and receives itsrecognition in courts of justice only after it has ceased to need eventhat to give it form and vitality, and who understands, therefore, how, with little inconvenience, it is made to accommodate itself to everychange of condition, sits down to a careful calculation of the cost andrisk of such wholesale change. History and practical experience, alike, suggest to him, that the structure is a castle as well as a dwelling, aplace for security as well as comfort; that its foundations have beenlaid deeply on the solid rock--its masonry more firmly knit together bythe time it has endured. Yet he will not deny that what can be doneconsistently with security ought to be done. It is worse than in vain tooppose all amendment. It will break down every artificial barrier thatmay be reared against it, if it be not quietly and wisely directed inthose channels which it seeks at the least expense to security andstability. 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 policyof public measures should not be wrapt up in the folds of State mystery;and that all legislation should be based upon the principle of leavingthe greatest liberty of private judgment and action, consistent withpublic peace and private security. A blind attachment to principles ofjurisprudence or rules of law because they are ancient, when theadvancement of the useful arts, the new combinations of trade andbusiness, and the influence of more rapid and general intercourse demandtheir repeal or modification, is as much to be deprecated as rashinnovation and unceasing experiment. Indeed it scarcely ever fails todefeat its own end, and though it may retard for a while, renders thecourse 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, neitherphysically, intellectually, nor morally, was made to stand still. As inher daily revolutions on her own axis as well as her annual orbit roundthe sun, she never returns precisely to the same point in space whichshe has ever before occupied, it would seem to be the lesson which theGreat Author of all Being would most deeply impress upon mind as he haswritten it upon matter; "by ceaseless motion all that is subsists. "

What has thus been very cursorily presented will evince that it is theprovince of legislation, by slow and cautious steps, to amend the laws, to render them more equal in their operation upon all classes, notfavoring the rich more than the poor, nor one class of either more thananother, providing an easy, cheap, and expeditious administration ofjustice by tribunals, whose learning and impartiality shall be sosecured as to possess the confidence of the community, and by generalrules for the regulation of conduct and the distribution of estates mostconformed to the analogies of that system, which is familiar to thepeople in their common law. 

Great as is the influence which the profession of the law can and doesexercise upon the legislation of a country, the actual administration oflaw is entirely in their hands. To a large extent by private counsel, bythe publication of works of research and learning, by arguments incourts 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 ofjudicature, this whole important province of government, which comeshome so nearly to every man's fireside, is intrusted necessarily tolawyers. 

In this country we live under the protection of written constitutions;not only so, but written constitutions, which have assumed to placelimits upon the power of majorities, acting at least through theirordinary representatives. The construction of these constitutions, orconstitutional law as it is termed, forms a very important branch ofAmerican jurisprudence. There have been, and are, in other countries, charters, written or unwritten--organic or fundamental laws--but withoutthis distinguishing feature. The fundamental laws, thus established inpoint of fact, emanate from the government, and have no sanction beyondthe oath of those intrusted with the administration of them, the forceof public opinion, and the responsibility of the representative to hisconstituent. Our constitutions emanate not from the government, but theState, the society, the creator of the government; and are, therefore, in the strictest sense of the words, _leges legum_. The radicalprinciple of our system is, that the act of the legislative body, beyondor contrary to the power confided to it by the Constitution, is anullity, and absolutely void. The courts must so pronounce, and theexecutive must execute their judgments with the whole force of theState. Upon such a subject it is best to use the very language--the_ipsissima verba_--of John Marshall, as, at the same time, expressingthe doctrine with the greatest force and perspicuity, and presenting, inthe mere statement, the most convincing argument of its importance. "Itis emphatically the province and duty of the judicial department to saywhat the law is. Those who apply the rule to particular cases, must, ofnecessity, expound and interpret that rule. If two laws conflict witheach other, the courts must decide on the operation of each. So if a lawbe in opposition to the Constitution; if both the law and theConstitution apply to a particular case, so that the court must eitherdecide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law: the court mustdetermine which of these conflicting rules governs the case. This is ofthe very essence of judicial duty. If, then, the courts are to regardthe Constitution, and the Constitution is superior to any ordinary actof the legislature, the Constitution, and not such ordinary act, mustgovern the case to which they both apply. Those, then, who controvertthe principle that the Constitution is to be considered in court as aparamount law, are reduced to the necessity of maintaining that courtsmust close their eyes on the Constitution and see only the law. Thisdoctrine would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles andtheory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that, if the legislature shalldo what is expressly forbidden, such act, notwithstanding the expressprohibition, is, in reality, effectual. It would be giving to thelegislature a practical and real omnipotence with the same breath whichprofesses to restrict their powers within narrow limits. It isprescribing limits, and declaring that those limits may be passed atpleasure. " (Marbury _v. _ Madison, 1 Cranch, 177. ) More weighty wordsthan these have never, speaking of human things, fallen from the lips ofman: weighty in themselves from their own simple but eloquentconclusiveness--weightier still from their unspeakable importance, theimmeasurable influence they have had, and, it is to be hoped, will evercontinue to have, upon the destinies of the United States of America. The judiciary department, though originating nothing, but acting onlywhen invoked by parties in the prosecution of their rights, is thusnecessarily an important political branch of the government. Thatdepartment spreads the broad and impregnable shield of its protectionover the life, limbs, liberty, and property of the citizen, when invadedeven by the will of the majority. Our Bills of Rights are, therefore, not mere enunciations of abstract principles, but solemn enactments bythe people themselves, guarded by a sufficient sanction. They have not, perhaps, as yet, carried far enough their provisions for the security ofproperty from the unjust action of government. The obligation ofcontracts has been declared sacred; the right of eminent domainrestricted 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 toeminent domain, they possess an undefined right to determine the timeand manner of ascertaining the compensation. Our constitutions arefrequently undergoing revision; and too much care cannot be exercised tostrengthen our securities in this quarter. Personal liberty, trial byjury, the elective and other political franchises, liberty ofconscience, of speech and of the press, are able to protect themselvesin a great measure from their own democratic affinities. It is true, that there really is no difference between wresting from a man the fewdollars, 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 foranother during the same period. Property eminently stands in need ofevery parchment barrier, which has been or can be thrown around it. Aneminent Judge in our own State once threw out the opinion that thereexisted in the Constitution no disaffirmance of the power of thelegislature to take the property of an individual for _private uses_with or without compensation. "The clause, " he argued, "by which it isdeclared that no man's property shall be taken or applied to _public_use, without compensation made, is a disabling, not an enabling one, andthe right would have existed in full force without it. " (Harvey _v. _Thomas, 10 Watts, 63. ) Fortunately, the decision of the court in thatcase did not require a resort to that reasoning, and but littleexamination was sufficient to satisfy the mind that this _obiter dictum_was unsustained by either principle or authority. A power in thelegislature to take the property of A. And give it to B. Directly, wouldbe of the very essence of despotism. When it is declared in the Bill ofRights 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, thisphrase, "law of the land, " does not mean merely an act of thelegislature. If it did, every restriction upon the legislativedepartment would be practically abrogated. By an authority as old asLord Coke, in commenting upon these same words in _Magna Charta_, theyare to be rendered "without due process of law: that is, by indictmentor presentment of good and lawful men, when such deeds be done in duemanner, or by writ original of the common law, without being broughtinto answer but by due process of the common law. " (2 Inst. 50. ) TheAmerican laws are numerous and uniform to the point (see 1 American LawMag. 315); and the same eminent Judge, to whom reference has been madein a later case, declared his adhesion to the sound and true doctrine inthe most emphatic language, without noticing his own previous _dictum_to the contrary. "It was deemed necessary, " said he, "to insert aspecial 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 totaking the property of an individual, with or without compensation, inorder to give it to another, not only because the general provision inthe Bill of Rights was deemed sufficiently explicit for that, butbecause it was expected that no legislature would be so regardless ofright as to attempt it. Were this reasonable expectation to bedisappointed, it would become our plain and imperative duty to obey theimmediate and paramount will of the people, expressed by their voices inthe adoption of the Constitution, rather than the repugnant will oftheir 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 directlyinvaded, its security against the acts of the legislature is not asperfect as it might and ought to be made. The legislature must beallowed a large discretion in judging what is a public use: on thatpretext much may be brought within its sweep unjustly, and the courts, in the absence of a constitutional rule, would be embarrassed indefining its limits. Experience has shown that much power to do wronglurks under grants by no means essential to the public good. Besideswhat has been before referred to, the assumption of judicial functionsby the Legislature and the broad field of Chancery jurisdiction overtrust estates, which it has been held that they may exerciseimmediately, if they see fit, instead of vesting them in appropriatetribunals, are fraught with serious danger. The proneness of bodies soconstituted to disembarrass themselves of the ordinary rules ofevidence, to act upon _ex parte_ statements and testimony imperfectlyauthenticated, as well as the absence of all legal forms from theirproceedings, and their numbers, among whom the responsibility of givingdue attention to the case is divided, add to the peril. The power oflegislating retrospectively has far too wide a scope; the constitutionalinhibition of _ex post facto_ laws having been construed to apply tocriminal or penal cases merely, restraining the legislature from makingthat an offence which was not so at the time of its commission, orincreasing the punishment annexed to it. The course of legislation inthis country amply demonstrates the wisdom, and even necessity, ofextending the same prohibition to civil cases. There is no particularor partial inconvenience, which could outweigh the general benefits of aprovision that no law, public or private, should operate retrospectivelyupon past acts; that the judgment of the tribunals upon every caseshould 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 theyare to be presumed to have acted. 

As well in the domain of public as of private law, the great fundamentalprinciple for judge and counsellor ought to be, THAT AUTHORITY ISSACRED. There is no inconvenience so great, no private hardship soimperative, as to justify the application of a different rule to theresolution 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 JusticeTilghman, "that trifles with the sacred deposit in his hands by claimingto fashion it according to a private opinion of what it ought to be. Judicial legislation he abhorred, I should rather say, _dreaded_, as animplication of his conscience. His first inquiry in every case was ofthe oracles of the law for their response; and when he obtained it, notwithstanding his clear perception of the justice of the cause, andhis intense desire to reach it, if it was not the justice of the law, hedared not to administer it. He acted upon the sentiment of Lord Bacon, that it is the foulest injustice to remove landmarks, and that tocorrupt the law is to poison the very fountains of justice. With aconsciousness 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 ourannual legislature to correct such defects in the system as time eithercreated or exposed; and better foundation in the law can no man lay. " Itis not to be denied that there is some difficulty in stating withaccuracy the limits of the rule _stare decisis_. One, or even more thanone, recent precedent, especially when it relates to the applicationrather than to the establishment of a rule, is not of so binding acharacter that it must be followed, even though contrary to principlesadjudged in older cases: but it is just as clear that when a decisionhas 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 itrelates to the right of property itself, or to the evidence by whichthat right may be substantiated, though it may appear to us "flatlyabsurd and unjust, " to overrule such a decision is an act of positiveinjustice, as well as a violation of law, and an usurpation by onebranch of the government upon the powers of another. An example willillustrate this position. In the case of Walton _v. _ Shelley (1 TermRep. 296), in 1786, the King's Bench, Lord Mansfield, Chief Justice, decided that a person is not a competent witness to impeach a securitywhich he has given, though he is not interested in the event of thesuit, 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 LordKenyon, 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 beenoverruled in England: and though limited as it was understood to be inBent _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 wasproperly overruled. It ought not now to be overruled in Pennsylvania. "After the decisions cited, " says Judge Rogers, in Gest _v. _ Espy (2Watts, 268), "this cannot be considered an open question, nor do wethink ourselves at liberty now to examine the foundations of the rule. "Unfortunately our Supreme Court have not always put this sound and wiselimitation 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 hopedthat the inconvenience of the rule would have attracted the attention ofthe legislature, _who alone are competent to abolish it_;" but asnothing was to be expected from that quarter, "they were driven bystress of necessity" to overrule a case expressly decided on theauthority of the rule. (Hart _v. _ Heilner, 3 Rawle, 407. ) And two yearsafterwards, after having made the remarkable declaration that thelegislature alone was competent to abolish the rule, they neverthelesspronounced it "exploded altogether. " (McClelland _v. _ Mahon, 1 Barr, 364. )

Lord Bacon says of retrospective laws: "_Cujus generis leges raro etmagna cum cautione sunt adhibenda: neque enim placet Janus in legibus. _"Without any saving clause may the epithet and denunciation be applied tojudicial laws. They are always _retrospective_, but worse on manyaccounts than _retrospective statutes_. Against the latter we have atleast the security of the constitutional provision that prohibits thepassage of any law, which impairs the obligation of a contract, executory or executed; and it has been well held that this prohibitionapplies to such an alteration of the law of evidence in force at thetime the contract was made, as would practically destroy the contractitself by destroying the only means of enforcing it. There is no suchconstitutional provision against judicial legislation. It sweeps away aman's rights, vested, as he had reason to think, upon the firmestfoundation, without affording him the shadow of redress. Nor couldthere, in the nature of things, be any such devised. When a courtoverrules a previous decision, it does not simply repeal it; it mustpronounce it never to have been law. There is no instance on record, inwhich a court has instituted the inquiry, upon what grounds the suitorhad relied in investing his property or making his contract, andrelieved him from the disastrous consequences, not of his, but of theirmistake, or the mistake of their predecessors. The man who, on the faithof 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 logicalconsequences, that in 1832 (Hart _v. _ Heilner, 3 Rawle, 407) the SupremeCourt, declined to hear the counsel, who relied on its authority, invested his money in the purchase of a claim which could be proved onlyby the testimony of the assignor, found himself stripped of his propertyby a decision in 1845, the results of which were broader than even thelegislature itself would have been competent to effect, or indeed thepeople themselves in their sovereign capacity, at least so long as theConstitution of the United States continues to be "the supreme law ofthe land, anything in the _constitution_ and laws of any State to thecontrary notwithstanding. "

But judicial is much worse than legislative retrospection in anotheraspect. The act of Assembly, if carefully worded, is at least a certainrule. The act of the judicial legislature is invariably the precursor ofuncertainty and confusion. Apply to it a test, which may be set down asunerring, never failing soon to discover the true metal from the basecounterfeit: its effect upon litigation. A decision in conformity toestablished precedents is the mother of repose on that subject; but onethat departs from them throws the professional mind at sea withoutchart or compass. The cautious counsellor will be compelled to say tohis client that he cannot advise. One cause is the general uncertaintyto which it leads. Men will persuade themselves easily, when it is theirinterest to be persuaded, that if one well-established rule has beenoverthrown, another, believed to be quite as wrong and perhaps not sowell fortified by time and subsequent cases, may share the same fate. Shall counsel risk advising his client not to prosecute his claim ordefence, when another bolder than he, may moot the point and conductanother cause resting upon the same question to a successfultermination? The very foundations of confidence and security are shaken. The law becomes a lottery, in which every man feels disposed to try hischance. Another cause of this uncertainty is more particular. A courtscarcely ever makes an open and direct overthrow of a deeply foundedrule at one stroke. It requires repeated blows. It can be seen to be indanger, but not whether it is finally to fall. Hence it frequentlyhappens that there is a sliding scale of cases; and when the finaloverthrow comes, it is very difficult to determine, whether any andwhich steps of the process remain. Shortly after the decision in Post_v. _ Avery, the case of Fraley _v. _ Bispham was tried in one of theinferior courts; in which the Judge, thinking that Post _v. _ Avery, however the intention may have been disclaimed, did in fact overruleSteele _v. _ The Ph[oe]nix, rejected as incompetent one of the nominalplaintiffs, a retiring partner, who upon dissolution had sold out for aprice _bona fide_ paid, all his interest in the firm to his copartners, who continued the business. A motion was made for a new trial, andbefore 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, whichdecided that an assignment must be colorable and made for the purpose ofrendering the assignor a witness in order to exclude him, ordered a newtrial. Before the case was again called for trial, the first volume ofBarr'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 justicedemand that the decision in that case be no longer a precedent foranything whatever. " (McClelland _v. _ Mahon, 1 Barr, 364. ) And the Judgebefore whom the cause was then tried had no other course left, but againto reject the witness, the very same thing on account of which a newtrial had been ordered. 

The case of Post _v. _ Avery is a most striking illustration of judiciallegislation and its mischievous results. It is usual to hear it excusedon account of the unequal and unjust operation of the rule reversed, bywhich one party was heard but not the other, and the temptation it heldout for the manufacture of false claims, to be supported by perjury. Butit is to lose sight of the real question involved to raise such anissue: for, like the execution of a notorious culprit by the expeditiousprocess of a mob and a lamp-post, instead of the formalities and delaysof law and courts, it may be a very good thing for the community tohave rid itself of the offender, but the way by which it wasaccomplished was a heavy blow at the very root of the tree of public andprivate security. 

There is another decision of the Supreme Court of Pennsylvania, not sobold and avowed an act of judicial legislation as that just mentioned, but not less transparent, which may be cited as strongly illustratingthe same consequences of uncertainty and litigation flowing from adisregard of the principle adverted to. From the year 1794, there hadexisted in Pennsylvania an act of Assembly limiting the lien of thedebts of a decedent on his real estate, at first to seven, afterwards tofive years. No question ever arose before the court in regard to it. Lien was considered to mean lien and not obligation: lands to be subjectto execution for all debts of the owner prosecuted to judgment, and ofcourse not barred by the Statute of Limitations; and the limitation ofthe lien merely intended for the protection of purchasers from the heirsor devisees or their lien creditors. Such was recognized to be the truemeaning of the law in 1795 (Hannum _v. _ Spear, 1 Yeats, 566), and sodistinctly ruled in 1830 (Bruch _v. _ Lantz, 2 Rawle, 392); yet ongrounds palpably only relevant to what, in the opinion of the court, thelaw 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 debtitself, and available in favor of heirs and devisees, volunteers underthe 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 lawcarried to the highest tribunal from 1794 to 1832. More than twentycases are to be found reported since, in which that court has beencalled upon to draw distinctions and settle the precise extent of theirown law. Thus a little complicated system has grown up on thisconstruction of the act. A volume, indeed, might be written on Kerper_v. _ Hoch and its satellites, when if the act had been let alone tospeak for itself, and the prior decision followed, it would have been asimple and intelligible rule of action, until the legislature saw fitto alter it. It seems that this consideration pressed upon at least oneof 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, butit was erroneously decided. " (Hocker's Appeal, 4 Barr, 498. )

This, then, is the legitimate province of Jurisprudence, _Stare superantiquas vias_, to maintain the ancient landmarks, to respect authority, to guard the integrity of the law as a science, that it may be a certainrule of decision, and promote that security of life, liberty, andproperty, which, as we have seen, is the great end of human society andgovernment. Thus industry will receive its best encouragement; thusenterprise will be most surely stimulated; thus constant additions tocapital by savings will be promoted; thus the living will be content inthe feeling that their earnings are safely invested; and the dying beconsoled with the reflection that the widow and orphan are left underthe care and protection of a government, which administers impartialjustice according to established laws. 

With jurisprudence, lawyers have the most, nay all, to do. The opinionof the Bar will make itself heard and respected on the Bench. With soundviews, their influence for good in this respect may well be said to beincalculable. It is indeed the noblest faculty of the profession tocounsel the ignorant, defend the weak and oppressed, and to stand forthon all occasions as the bulwark of private rights against the assaultsof 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 theymay 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 mostimportant changes in the Constitution, and above all in the formation ofthat public opinion which may be said in these times, almost without afigure, to be _ultimate sovereign_. Whether they seek them or aresought, lawyers, in point of fact, always have filled, in much thelarger proportion over every other profession, the most important publicposts. They will continue to do so, at least so long as the professionholds the high and well-merited place it now does in the publicconfidence. 

PROFESSIONAL ETHICS. 

There is, perhaps, no profession, after that of the sacred ministry, inwhich a high-toned morality is more imperatively necessary than that ofthe law. There is certainly, without any exception, no profession inwhich so many temptations beset the path to swerve from the line ofstrict integrity; in which so many delicate and difficult questions ofduty are continually arising. There are pitfalls and man-traps at everystep, and the mere youth, at the very outset of his career, needs oftenthe prudence and self-denial, as well as the moral courage, which belongcommonly to riper years. High moral principle is his only safe guide;the only torch to light his way amidst darkness and obstruction. It islike 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 intelligiblerules by which to guide and govern the conduct of professional life. Itwould not be a difficult task to declaim in general propositions--toerect a perfect standard and leave the practitioner to make his ownapplication to particular cases. It is a difficult task, however, as italways is in practice, to determine the precise extent of a principle, so as to know when it is encountered and overcome by another--to weighthe respective force of duties which appear to come in conflict. In allthe walks of life men have frequently to do this: in none so often as atthe Bar. 

The responsibilities, legal and moral, of the lawyer, arise from hisrelations to the court, to his professional brethren and to his client. It is in this order that it is proposed to consider and discuss thevarious topics which grow out of this subject. 

The oath directed by law in this State to be administered upon theadmission of an attorney to the bar, "to behave himself in the office ofattorney according to the best of his learning and ability, and with allgood fidelity, as well to the court as to the client; that he will useno falsehood, nor delay any man's cause for lucre or malice, " presents acomprehensive summary of his duties as a practitioner. [1]

Fidelity to the court, fidelity to the client, fidelity to the claims oftruth and honor: these are the matters comprised in the oath of office. 

It is an oath of office, and the practitioner, the incumbent of anoffice--an office in the administration of justice[2]--held by authorityfrom those who represent in her tribunals the majesty of thecommonwealth, a majesty truly more august than that of kings oremperors. It is an office, too, clothed with many privileges--privileges, some of which are conceded to no other class or profession. [3] It is, therefore, that the legislature have seen fit to require that thereshould be added to the solemnity of the responsibility, which every manvirtually incurs when he enters upon the practice of his profession, the higher and more impressive sanction of an appeal to the Searcher ofall Hearts. 

Fidelity to the court, requires outward respect in words and actions. The oath as it has been said, undoubtedly looks to nothing likeallegiance to the person of the judge; unless in those cases where hisperson is so inseparable from his office, that an insult to the one, isan indignity to the other. In matters collateral to official duty, thejudge is on a level with the members of the bar, as he is with hisfellow-citizens; his title to distinction and respect resting on noother foundation, than his virtues and qualities as a man. [4] There areoccasions, no doubt, when duty to the interests confided to the chargeof the advocate demands firm and decided opposition to the viewsexpressed or the course pursued by the court, nay, even manly and openremonstrance; but this duty may be faithfully performed, and yet thatoutward respect be preserved, which is here inculcated. Counsel shouldever remember how necessary it is for the dignified and honorableadministration of justice, upon which the dignity and honor of theirprofession entirely depend, that the courts and the members of thecourts, should be regarded with respect by the suitors and people; thaton all occasions of difficulty or danger to that department ofgovernment, they should have the good opinion and confidence of thepublic on their side. Good men of all parties prefer to live in acountry, 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 histemper and patience. Lord Campbell has remarked that it is ratherdifficult for a judge altogether to escape the imputation of discourtesyif he properly values the public time; for one of his duties is to"render it disagreeable to counsel to talk nonsense. " Respectfulsubmission, nay, most frequently, even cheerful acquiescence in adecision, when, as is most generally the case, no good result to hiscause can grow from any other course, is the part of true wisdom as wellas civility. An exception may be noted to the opinion of the Bench, aseasily in an agreeable and polite, as in a contemptuous and insultingmanner. The excitement of the trial of a cause caused by the conflict oftestimony, making often the probabilities of success to vibratebackwards and forwards with as much apparent uncertainty as the chancesin a game of hazard, is no doubt often the reason and apology forapparent disrespect in manner and language; but let it be observed, thatpetulance in conflicts with the Bench, which renders the trial of causesdisagreeable to all concerned, has most generally an injurious effectupon the interests of clients. 

Indeed, it is highly important that the temper of an advocate should bealways equal. He should most carefully aim to repress everything likeexcitability or irritability. When passion is allowed to prevail, thejudgment is dethroned. Words are spoken, or things done, which theparties afterwards wish could be unsaid or undone. Equanimity andself-possession are qualities of unspeakable value. An anecdote mayserve to illustrate this remark. There was a gentleman of the Bar ofPhiladelphia, many years ago, who possessed these qualities in a veryremarkable degree. He allowed nothing that occurred in a cause todisturb or surprise him. On an occasion in one of the neighboringcounties, the circuit of which it was his custom to ride, he was tryinga cause on a bond, when a witness for defendant was introduced, whotestified that the defendant had taken the amount of the bond, which wasquite a large sum, from his residence to that of the obligee, a distanceof several miles, and paid him in silver in his presence. The evidencewas totally unexpected; his clients were orphan children; all theirfortune was staked on this case. The witness had not yet committedhimself as to how the money was carried. Without any discomposure--withoutlifting his eyes or pen from paper--he made on the margin of his notesof trial a calculation of what that amount in silver would weigh; andwhen it came his turn to cross-examine, calmly proceeded to make thewitness repeat his testimony step by step, --when, where, how, and howfar the money was carried--and then asked him if he knew how much thatsum of money weighed, and upon naming the amount, so confounded thewitness, party, and counsel engaged for the defendant, that the defencewas at once abandoned, and a verdict for the plaintiff rendered on thespot. [5]

Another plain duty of counsel is to present every thing in the cause tothe court openly in the course of the public discharge of its duties. Itis not often, indeed, that gentlemen of the Bar so far forget themselvesas to attempt to exert privately an influence upon the judge, to seekprivate interviews, or take occasional opportunities of accidental orsocial meetings to make _ex parte_ statements, or to endeavor to impresstheir views. They know that such conduct is wrong in itself, and has atendency to impair confidence in the administration of justice, whichought not only to be pure but unsuspected. A judge will do right toavoid social intercourse with those who obtrude such unwelcome mattersupon his moments of relaxation. There is one thing, however, of whichgentlemen of the Bar are not sufficiently careful, --to discourage andprohibit their clients from pursuing a similar course. The position ofthe judge in relation to a cause under such circumstances is veryembarrassing, especially, as is often the case, if he hears a good dealabout the matter before he discovers the nature of the business andobject of the call upon him. Often the main purpose of such visits isnot so much to plead the cause, as to show the judge who the partyis--an acquaintance, perhaps--and thus, at least, to interest hisfeelings. Counsel should set their faces against all undue influences ofthe sort; they are unfaithful to the court, if they allow any impropermeans of the kind to be resorted to. _Judicem nec de obtinendo jureorari oportet nec de injuria exorari. _ It may be in place to remark herethat the counsel in a cause ought to avoid all unnecessary communicationwith the jurors before or during any trial in which he may beconcerned. He should enforce the same duty upon his client. Any attemptby an attorney to influence a juror by arguments or otherwise, will, ofcourse, if discovered and brought to the notice of the court, lead toexpulsion or suspension from the Bar, according to the degree andquality of the offence. The freedom of the jury-box from extraneousinfluences is a matter of such vital moment in our system that thecourts are bound to watch over it with jealous eyes. "It would be aninjury to the administration of justice, " says C. J. Tilghman, "not todeclare that it is gross misbehavior for any person to speak with ajuror, or for a juror to permit any person to speak with him, respectingthe cause he is trying, at any time after he is summoned and before theverdict is delivered. " "The words thus uttered, " says Judge Hare, "byone of the best men and purest magistrates that ever filled the judicialoffice, must find an echo in every bosom. The principle which dictatedthem does not require the aid of argument or elucidation; it is nativeto the conscience, and will be apparent to all who consult the monitorin their own breast. The wrong is aggravated when the taint of personalinterest mingles with it, as when committed by a party to the cause, butappears 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 asguardians of the fountains of justice, and who are false to their chargewhen they defile or taint those waters, which they are pledged to keeppure and unpolluted. Such conduct in counsel is a gross breach of trust, for which a removal from the trust is but an inadequate punishment. "[6]

There is another duty to the court, and that is, to support and maintainit in its proper province wherever it comes in conflict with theco-ordinate tribunal--the jury. The limits of these two provinces aresettled with great accuracy; and even if a judge makes a mistake, theonly proper place to correct his error is in the superior tribunal, --theCourt of Errors. It has been held in a multitude of cases, that verdictsagainst the charge of the court in point of law, will be set asidewithout limitation as to the number of times, and that without regard tothe question whether the direction of the court in point of law wasright or wrong. There is a technical reason, which makes this course inall cases imperative. The losing party, if the jury were allowed todecide the law for him, would be deprived of his exception, and of hisunquestionable right to have the law of his case pronounced upon by theSupreme Court. _Ad questiones juris respondeant judices, --ad questionesfacti juratores. _ A disregard by the jury of the law, as laid down bythe judge, is always therefore followed by additional and unnecessarydelay and expense, and it is never an advantage to a party in the longrun to obtain a verdict in opposition to the direction of the court. [7]It is best for counsel to say in such cases, where nothing is left bythe charge to the jury, that they do not ask for a verdict. It has afair, candid, and manly aspect towards court, jury, opposite party, andeven client. Instances of counsel urging or endeavoring to persuade ajury to disregard the charge may sometimes occur, but they areexceedingly rare when there is good feeling between the Bench and theBar, and when the members of the profession have just and enlightenedviews of their duty as well as interest. 

It need hardly be added that a practitioner ought to be particularlycautious, in all his dealings with the court, to use no deceit, imposition, or evasion--to make no statements of facts which he does notknow or believe to be true--to distinguish carefully what lies in hisown knowledge from what he has merely derived from his instructions--topresent no paper-books intentionally garbled. "Sir Matthew Haleabhorred, " says his biographer, "those too common faults ofmisrepresenting evidence, quoting precedents or books falsely, orasserting anything confidently by which ignorant juries and weak judgesare too often wrought upon. "[8] One such false step in a young lawyerwill do him an injury in the opinion of the Bench and of hisprofessional brethren, which it will take years to redeem, if indeed itever can be entirely redeemed. 

A very great part of a man's comfort, as well as of his success at theBar, depends upon his relations with his professional brethren. Withthem he is in daily necessary intercourse, and he must have theirrespect and confidence, if he wishes to sail along in smooth waters. Hecannot be too particular in keeping faithfully and liberally everypromise or engagement he may make to them. One whose perfecttruthfulness is even suspected by his brethren at the Bar has always anuneasy time of it. He will be constantly mortified by observingprecautions taken with him which are not used with others. It is notonly morally wrong but dangerous to mislead an opponent, or put him ona wrong scent in regard to the case. It would be going too far to saythat it is ever advisable to expose the weakness of a client's cause toan adversary, who may be unscrupulous in taking advantage of it; but itmay be safely said, that he who sits down deliberately to plot asurprise upon his opponent, and which he knows can succeed only by itsbeing a surprise, deserves to fall, and in all probability will fall, into the trap which his own hands have laid. "Whoso diggeth a pit, " saysthe wise man, "shall fall therein, and he that rolleth a stone, it willreturn upon him. " If he should succeed, he will have gained with hissuccess not the admiration and esteem, but the distrust and dislike ofone of his associates as long as he lives. He should never unnecessarilyhave a personal difficulty with a professional brother. He shouldneither give nor provoke insult. Nowhere more than at the Bar is thatadvice 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 mostcarefully the reputation of a sharp practitioner. Let him be liberal tothe slips and oversights of his opponent wherever he can do so, and inplain cases not shelter himself behind the instructions of his client. The client has no right to require him to be illiberal--and he shouldthrow up his brief sooner than do what revolts against his own sense ofwhat is demanded by honor and propriety. 

Nothing is more certain than that the practitioner will find, in thelong run, the good opinion of his professional brethren of moreimportance than that of what is commonly called the public. Thefoundations of the reputation of every truly great lawyer will bediscovered to have been laid here. Sooner or later, the real public--thebusiness men of the community, who have important lawsuits, and arevaluable clients--indorse the estimate of a man entertained by hisassociates of the Bar, unless indeed there be some glaring defect ofpopular qualities. The community know that they are better qualified tojudge of legal attainments, that they have the best opportunity ofjudging, and that they are slow in forming a judgment. The good opinionand confidence of the members of the same profession, like the King'sname on the field of battle, is "a tower of strength;" it is the titleof legitimacy. The ambition to please the people, to captivate jurors, spectators, and loungers about the court room, may mislead a young maninto pertness, flippancy, and impudence, things which often pass currentfor eloquence and ability with the masses; but the ambition to pleasethe Bar can never mislead him. Their good graces are only to be gainedby real learning, by the strictest integrity and honor, by a courteousdemeanor, and by attention, accuracy and punctuality in the transactionof business. 

The topic of fidelity to the client involves the most difficultquestions in the consideration of the duty of a lawyer. 

He is legally responsible to his client only for the want of ordinarycare and ordinary skill. That constitutes gross negligence. It isextremely difficult to fix upon any rule which shall define what isnegligence in a given case. The habits and practice of men are widelydifferent in this regard. It has been laid down that if the ordinary andaverage degree of diligence and skill could be determined, it wouldfurnish the true rule. [9] Though such be the extent of legal liability, that of moral responsibility is wider. Entire devotion to the interestof the client, warm zeal in the maintenance and defence of his rights, and the exertion of his utmost learning and ability, --these are thehigher points, which can only satisfy the truly conscientiouspractitioner. 

But what are the limits of his duty when the legal demands or interestsof 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 isthe 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. Inthe majority of cases it must be apparent to the advocate, on which sideis the justice of the cause; yet he will maintain, and often with theappearance of warmth and earnestness, that side which he must know to beunjust, 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 broughtfor adjudication upon the evidence, and upon the principles of lawapplicable to the facts as they appear upon the evidence. No court orjury are invested with any arbitrary discretion to determine a causeaccording to their mere notions of justice. Such a discretion vested inany body of men would constitute the most appalling of despotisms. Law, and justice according to law--this is the only secure principle uponwhich the controversies of men can be decided. It is better on the wholethat a few particular cases of hardship and injustice, arising fromdefect of evidence or the unbending character of some strict rule oflaw, should be endured, than that general insecurity should pervade thecommunity from the arbitrary discretion of the judge. It is this whichhas blighted the countries of the East as much as cruel laws or despoticexecutives. Thus the legislature has seen fit in certain cases to assigna limit to the period within which actions shall be brought; in order tourge men to vigilance, and to prevent stale claims from being suddenlyrevived against men whose vouchers are destroyed or whose witnesses aredead. It is true, _in foro conscientiæ_, a defendant, who knows that hehonestly owes the debt sued for and that the delay has been caused byindulgence or confidence on the part of his creditor, ought not to pleadthe statute. But if he does plead it, the judgment of the court must bein his favor. 

Now the lawyer is not merely the agent of the party; he is an officer ofthe court. The party has a right to have his case decided upon the lawand the evidence, and to have every view presented to the minds of hisjudges, which can legitimately bear upon that question. This is theoffice which the advocate performs. He is not morally responsible forthe act of the party in maintaining an unjust cause, nor for the errorof the court, if they fall into error, in deciding it in his favor. Thecourt or jury ought certainly to hear and weigh both sides; and theoffice of the counsel is to assist them by doing that, which the clientin person, from want of learning, experience, and address, is unable todo in a proper manner. The lawyer, who refuses his professionalassistance 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 ingeneral, the view thus presented may be quite satisfactory. It by nomeans follows, however, as a principle of private action for theadvocate, that all causes are to be taken by him indiscriminately andconducted with a view to one single end, _success_. It is much to befeared, however, that the prevailing tone of professional ethics leadspractically to this result. He has an undoubted right to refuse aretainer, and decline to be concerned in any cause, at his discretion. It is a discretion to be wisely and justly exercised. When he has onceembarked in a case, he cannot retire from it without the consent of hisclient or the approbation of the court. [10] To come before the courtwith a revelation of facts, damning to his client's case, as a groundfor retiring from it, would be a plain breach of the confidence reposedin him, and the law would seal his lips. [11] How then is he to acquithimself? Lord Brougham, in his justly celebrated defence of the Queen, went to very extravagant lengths upon this subject; no doubt he was ledby the excitement of so great an occasion to say what cool reflectionand sober reason certainly never can approve. "An advocate, " said he, "in the discharge of his duty knows but one person in all the world, andthat person is his client. To save that client by all means andexpedients, and at all hazards and costs to other persons, and amongthem to himself, is his first and only duty; and in performing thisduty he must not regard the alarm, the torments, the destruction he maybring upon others. Separating the duty of a patriot from that of anadvocate, he must go on reckless of consequences; though it should behis 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 ofmoral duty as perhaps ever lived, it is said by Bishop Burnet, of SirMatthew Hale: "If he saw a cause was unjust, he for a great while wouldnot meddle further in it, but to give his advice that _it was so_; ifthe parties after that would go on, they were to seek anothercounsellor, for he would assist none in acts of injustice; if he foundthe cause doubtful or weak in point of law, he always advised hisclients to agree their business. Yet afterwards he abated much of thescrupulosity he had about causes that appeared at first unjust, uponthis occasion; there were two causes brought him, which by the ignoranceof the party or their attorney, were so ill-represented to him that theyseemed to be very bad; but he inquiring more narrowly into them, foundthey were really very good and just; so after this he slackened much ofhis former strictness of refusing to meddle in causes upon the illcircumstances that appeared in them at first. "[12]

It may be delicate and dangerous ground to tread upon to undertake todescend to particulars upon such a subject. Every case must, to a greatdegree, depend upon its own circumstances, known, peradventure, to thecounsel alone; and it will often be hazardous to condemn either clientor counsel upon what appears only. A hard plea--a sharp point--maysubserve what is at bottom an honest claim, or just defence; though theevidence may not be within the power of the parties, which would make itmanifest. 

There are a few propositions, however, which appear to me to be sound inthemselves, and calculated to solve this problem practically in themajority of cases: at least to assist the mind in coming to a safeconclusion _in foro conscientiæ_, in the discharge of professional duty. 

There is a distinction to be made between the case of prosecution anddefence for crimes; between appearing for a plaintiff in pursuit of anunjust claim, and for a defendant in resisting what appears to be a justone. 

Every man, accused of an offence, has a constitutional right to a trialaccording to law: even if guilty, he ought not to be convicted andundergo punishment unless upon legal evidence; and with all the formswhich have been devised for the security of life and liberty. These arethe panoply of innocence when unjustly arraigned; and guilt cannot bedeprived of it, without removing it from innocence. He is entitled, therefore, to the benefit of counsel to conduct his defence, tocross-examine the witnesses for the State, to scan, with legalknowledge, the forms of the proceeding against him, to present hisdefence in an intelligible shape, to suggest all those reasonable doubtswhich may arise from the evidence as to his guilt, and to see that if heis convicted, it is according to law. A circumstance the celebrated LordShaftesbury once so finely turned to his purpose must often happen to aprisoner at his trial. Attempting to speak on the bill for grantingcounsel to prisoners in cases of high treason, he was confounded, andfor some time could not proceed, but recovering himself, he said, "Whatnow happened to him would serve to fortify the arguments for the bill. If he innocent and pleading for others was daunted at the augustness ofsuch an assembly, what must a man be who should plead before them forhis life?"[13] The courts are in the habit of assigning counsel toprisoners who are destitute, and who request it; and counsel thus namedby the court cannot decline the office. [14] It is not to be termedscreening the guilty from punishment, for the advocate to exert all hisability, learning, and ingenuity, in such a defence, even if he shouldbe perfectly assured in his own mind of the actual guilt of theprisoner. [15]

It is a different thing to engage as private counsel in a prosecutionagainst a man whom he knows or believes to be innocent. Publicprosecutions 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 inducegentlemen to engage on behalf of private interests or feelings, in sucha prosecution. It ought never to be done against the counsel's ownopinion of its merits. There is no call of professional duty to balancethe scale, as there is in the case of a defendant. It is in every casebut an act of courtesy in the Attorney-General to allow private counselto 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 applyto mere assistance in preparing such a cause for trial out of court, bygetting ready and arranging the evidence and other matters connectedwith it: as the Commonwealth has its own officers, it may well, ingeneral, be left to them. There is no obligation on an attorney tominister to the bad passions of his client; it is but rarely that acriminal prosecution is pursued for a valuable private end, therestoration of goods, the maintenance of the good name of theprosecutor, or closing the mouth of a man who has perjured himself in acourt of justice. The office of Attorney-General is a public trust, which involves in the discharge of it, the exertion of an almostboundless discretion, by an officer who stands as impartial as a judge. "The professional assistant, with the regular deputy, exercises not hisown discretion, but that of the Attorney-General, whose _locum tenens_at sufferance, he is; and he consequently does so under the obligationof the official oath. "[16] On the other hand, if it were considered thata lawyer was bound or even had a right to refuse to undertake thedefence of a man because he thought him guilty, if the rule wereuniversally adopted, the effect would be to deprive a defendant, in suchcases, of the benefit of counsel altogether. 

The same course of remark applies to civil causes. A defendant has alegal right to require that the plaintiffs demand against him should beproved and proceeded with according to law. If it were thrown upon theparties 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 ofhaving a learned profession, who engage as a business in representingparties in courts of justice, that men are thus brought nearer to acondition of equality, that causes are tried and decided upon theirmerits, and do not depend upon the personal characters andqualifications of the immediate parties. [17] Thus, too, if a suit beinstituted against a man to recover damages for a tort, the defendanthas a right to all the ingenuity and eloquence he can command in hisdefence, that even if he has committed a wrong, the amount of thedamages 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 beconcerned for a plaintiff in the legal pursuit of a demand, whichoffends his sense of what is just and right. The courts are open to theparty in person to prosecute his own claim, and plead his own cause;and although he ought to examine and be well-satisfied before he refusesto a suitor the benefit of his professional skill and learning, yet itwould be on his part an immoral act to afford that assistance, when hisconscience told him that the client was aiming to perpetrate a wrongthrough the means of some advantage the law may have afforded him. "Itis a popular but gross mistake, " says the late Chief Justice Gibson, "tosuppose that a lawyer owes no fidelity to any one except his client, andthat the latter is the keeper of his professional conscience. He isexpressly bound by his official oath to behave himself, in his office ofattorney, with all fidelity to the court as well as the client; and heviolates it when he consciously presses for an unjust judgment, muchmore so when he presses for the conviction of an innocent man.... Thehigh and honorable office of a counsel would be degraded to that of amercenary, were he compelled to do the biddings of his client againstthe dictates of his conscience. "[18] The sentiment has been expressedin 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, thatthere may and ought to be a difference made in the mode of conducting adefence against what is believed to be a righteous, and what is believedto be an unrighteous claim. A defence in the former case should beconducted upon the most liberal principles. When he is contendingagainst the claim of one, who is seeking, as he believes, through theforms of law, to do his client an injury, the advocate may justifiablyavail himself of every honorable ground to defeat him. He may begin atonce by declaring to his opponent or his professional adviser, that heholds him at arm's length, and he may keep him so during the wholecontest. He may fall back upon the instructions of his client, andrefuse to yield any legal vantage ground, which may have been gainedthrough the ignorance or inadvertence of his opponent. Counsel, however, may and even ought to refuse to act under instructions from a client todefeat what he believes to be an honest and just claim, by insistingupon the slips of the opposite party, by sharp practice, or specialpleading--in short, by any other means than a fair trial on the meritsin open court. There is no professional duty, no virtual engagement withthe client, which compels an advocate to resort to such measures, tosecure success in any cause, just or unjust; and when so instructed, ifhe believes it to be intended to gain an unrighteous object, he oughtto throw up the cause, and retire from all connection with it, ratherthan thus he a participator in other men's sins. 

Moreover, no counsel can with propriety and a good conscience express tocourt or jury his belief in the justice of his client's cause, contraryto the fact. Indeed, the occasions are very rare in which he ought tothrow the weight of his own private opinion into the scales in favor ofthe side he has espoused. If that opinion has been formed on a statementof facts not in evidence, it ought not to be heard, --it would be illegaland improper in the tribunal to allow any force whatever to it; if onthe evidence only, it is enough to show from that the legal and moralgrounds on which such opinion rests. Some very sound and judiciousobservations have been made by Mr. Whewell in a recent work on theElements of Moral and Political Science, which deserve to be quoted atlength;--

"Some moralists, " says he, "have ranked with the cases in whichconvention supersedes the general rule of truth, an advocate assertingthe justice, or his belief in the justice, of his client's cause. Thosewho contend for such indulgence argue that the profession is aninstrument for the administration of justice: he is to do all he can forhis client: the application of laws is a matter of great complexity anddifficulty: that the right administration of them in doubtful cases isbest provided for if the arguments on each side are urged with theutmost force. The advocate is not the judge. 

"This may be all well, if the advocate let it be so understood. But ifin pleading he assert his belief that his cause is just when he believesit unjust, he offends against truth, as any other man would do who inlike manner made a like assertion. 

"Every man, when he advocates a case in which morality is concerned, hasan influence upon his hearers, which arises from the belief that heshares the moral sentiments of all mankind. This influence of hissupposed morality is one of his possessions, which, like all hispossessions, he is bound to use for moral ends. If he mix up hischaracter as an advocate with his character as a moral agent, using hismoral influence for the advocate's purpose, he acts immorally. He makesthe moral rule subordinate to the professional rule. He sells to hisclient not only his skill and learning, but himself. He makes it thesupreme object of his life to be not a good man, but a successfullawyer. 

"There belong to him, moreover, moral ends which regard his profession;namely, to make it an institution fitted to promote morality. To raiseand purify the character of the profession, so that it may answer theends of justice without requiring insincerity in the advocate, is aproper end for a good man who is a lawyer; a purpose on which he maywell and worthily employ his efforts and influence. "[19]

Nothing need be added to enforce what has been so well said. The remark, however, may be permitted, that the expression of private opinion as tothe merits of a controversy often puts the counsel at fearful odds. Ayoung man, unknown to the court or the jury, is trying his first caseagainst a veteran of standing and character: what will the asseverationof the former weigh against that of the latter? In proportion, then, tothe age, experience, maturity of judgment, and professional character ofthe man, who falsely endeavors to impress the court and jury with theopinion of his confidence in the justice of his case, in that proportionis there danger that injury will be done and wrong inflicted--in thatproportion is there moral delinquency in him who resorts to it. 

Much interest was excited some years ago in England, by thecircumstances attending the defence of Courvoisier, indicted for themurder of Lord William Russell. The crime was one of great atrocity. Itcame out after his conviction, that during the trial he had confessedhis guilt to his counsel, of whom the eminent barrister CharlesPhillips, Esq. , was one. Mr. Phillips was accused of having endeavored, notwithstanding this confession, to fasten suspicion on the otherservants in the house, to induce the belief that the police hadconspired with them to manufacture evidence against the prisoner, and toimpress the jury with his own personal belief in the innocence of hisclient. How far these accusations were just in point of fact was thesubject of lively discussion in the newspapers and periodicals of thetime. [20]

The language of counsel, on such occasions, during the excitement of thetrial, in the fervor of an address to the jury, is not to be calmly andnicely scanned in the printed report. The testimony of such a witness asBaron Parke, at the time and on the spot, --he, too, aware of the exactposition of Mr. Phillips--and that confirmed by Chief Justice Tindal, is conclusive. To charge him with _acting falsehood_, that is, withpresenting the case as it appeared upon the testimony, earnestly andconfidently, means that he did not do that, which would have been worsethan retiring from his post. 

The non-professional, as well as professional public in England, however, agreed in saying that he would not have been justified inwithdrawing from the case: he was still bound to defend the accused uponthe evidence; though a knowledge of his guilt, from whatever sourcederived, might and ought materially to influence the mode of thedefence. No right-minded man, professional or otherwise, will contendthat 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 anunjust suspicion upon an innocent person; or even to stand up andfalsely pretend a confidence in the truth and justice of his cause, which he did not feel. But there were those on this side of theAtlantic, who demurred to the conclusion, that an advocate is under amoral obligation to maintain the defence of a man who has admitted tohim his guilt. Men have been known, however, under the influence of somedelusion, to confess themselves guilty of crimes which they had notcommitted: and hence, to decline acting as counsel in such a case, is adangerous refinement in morals. [21] Nothing seems plainer than theproposition, that a person accused of a crime is to be tried andconvicted, if convicted at all, _upon evidence_, and _whether guilty ornot guilty_, if the evidence is insufficient to convict him, he has _alegal right_ to be acquitted. The tribunal that convicts withoutsufficient evidence may decide according to the fact; but the next jury, acting on the same principle, may condemn an innocent man. If this beso, is not the prisoner in every case entitled to have the evidencecarefully sifted, the weak points of the prosecution exposed, thereasonable doubts presented which should weigh in his favor? And whatoffence to truth or morality does his advocate commit in dischargingthat duty to the best of his learning and ability? What apology can hemake for throwing up his brief? The truth he cannot disclose; the lawseals his lips as to what has thus been communicated to him inconfidence by his client. He has no alternative, then, but to performhis duty. It is his duty, however, as an advocate merely, as Baron Parkehas well expressed it, to use ALL FAIR ARGUMENTS ARISING ON THEEVIDENCE. Beyond that, he is not bound to go in any case; in a case inwhich he is satisfied in his own mind of the guilt of the accused, he isnot justified in going. 

Under all circumstances, the utmost candor should be used towards theclient. This is imperatively demanded alike by considerations of dutyand interest. It is much better for a man occasionally to lose a goodclient, than to fail in so plain a matter. It is nothing but selfishnessthat can operate upon a lawyer when consulted to conceal from the partyhis candid opinion of the merits, and the probable result. It is fairthat he should know it; for he may not choose to employ a man whoseviews may operate to check his resorting to all lawful means to effectsuccess. Besides, most men, when they consult an attorney, wish a candidopinion; it is what they ask and pay for. It is true, that it is oftenvery 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 toreflect calmly, and give due weight to opposing considerations. Thereare many persons who will go from lawyer to lawyer with a case, untilthey find one who is willing to express an opinion which tallies withtheir own. Such a client the lawyer, who acts firmly upon the principleto 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, willrevert to the candid and honest opinion he then received, and determine, if ever he gets into another difficulty of the kind, to resort to thatattorney, and abide by his advice. Thus may a man build up for himself acharacter far outweighing, even in pecuniary value, all such paltryparticular losses; it is to such men that the best clients resort; theyhave the most important and interesting lawsuits, and enjoy by far themost lucrative practice. 

A very important part of the advocate's duty is to moderate the passionsof the party, and where the case is of a character to justify it, toencourage an amicable compromise of the controversy. It happens toooften at the close of a protracted litigation that it is discovered, when too late, that the play has not been worth the candle, and that itwould have been better, calculating everything, for the successful partynever to have embarked in it--to have paid the claim, if defendant, orto have relinquished it, if he was plaintiff. Counsel can very soondiscover whether such is likely to be the case, and it cannot be doubtedwhat their plain duty is under such circumstances. 

Besides this, the advocate is bound in honor, as well as duty, todisclose to the client at the time of the retainer, every circumstanceof his own connection with the parties or prior relation to thecontroversy, which can or may influence his determination in theselection of him for the office. An attorney is bound to disclose to hisclient every adverse retainer, and even every prior retainer, which mayaffect the discretion of the latter. No man can be supposed to beindifferent to the knowledge of facts, which work directly on hisinterests, or bear on the freedom of his choice of counsel. When aclient employs an attorney, he has a right to presume, if the latter besilent on the point, that he has no engagements which interfere, in anydegree, with his exclusive devotion to the cause confided to him; thathe has no interest which may betray his judgment or endanger hisfidelity. [22]

It is in some measure the duty of counsel to be the keeper of theconscience of the client; not to suffer him, through the influence ofhis feelings or interest, to do or say anything wrong in itself, and ofwhich he would himself afterwards repent. This guardianship may becarefully, and at the same time kindly exerted. One particular will bementioned in which its exercise is frequently called for. The clientwill be often required, in the course of a cause, to make affidavits ofvarious kinds. There is no part of his business with his client, inwhich a lawyer should be more cautious, or even punctilious, than this. He should be careful lest he incur the moral guilt of subornation ofperjury, if not the legal offence. An attorney may have communicationswith his client in such a way, in instructing him as to what the lawrequires him to state under oath or affirmation, in order to accomplishany particular object in view, as to offer an almost irresistibletemptation and persuasion to stretch the conscience of the affiant up tothe required point. Instead of drawing affidavits, and permitting themto be sworn to as a matter of course, as it is to be feared is too oftenthe case, counsel should on all occasions take care to treat an oathwith great solemnity, as a transaction to be very scrupulously watched, because involving great moral peril as well as liability to publicdisgrace and infamy. It lies especially in the way of the profession togive a high tone to public sentiment upon this all-important subject, the sacredness of an oath. It is always the wisest and best course, tohave an interview with the client, and draw from him by questions, whether he knows the facts which you know he is required to state, sothat you may judge whether, as a conscientious man, he ought to makesuch affidavit. 

Another particular may be adverted to: the attempt to cover propertyfrom the just demands of creditors. It is to be feared that gentlemenof the Bar sometimes shut their eyes and, under the influence offeelings of commiseration for an unfortunate client, feign not to seewhat is really very palpable to everybody else. Surely they ought neverto sanction, directly or indirectly such shams, especially when themachinery of a judicial sale is introduced more securely to accomplishthe object. A purchase is made in the name of a friend for the debtor'sbenefit and with the debtor's money, though it may be hard to make thatappear by legal evidence. When advice is asked, as it sometimes is, howsuch a thing may be safely and legally done, the idea held prominentlybefore the party by his counsel should be, that his estate is theproperty of his creditors, and that nothing but their consent willjustify an appropriation of any part of it to his benefit. 

Lawyers too may very materially assist in giving a high tone to publicsentiment in the matter of stay and exemption laws. It is not every casein which a man has a legal that he has a moral right to claim thebenefit of such laws. When a debtor with ample means to pay only wantsto harass and worry his creditor, who has resorted to legal process andobtained a judgment, by keeping him out of his money, as it is oftenexpressed, as long as he can; or where he wishes to take advantage ofhard times to make more than legal interest, or with concealed meansunknown to the execution plaintiff, claims the exemption: these arecases which counsel ought to hold up in their proper light to those whomthey advise, and wash their hands of the responsibility of them. According to the Jewish law, the cloak or outer garment, which wasgenerally used by the poorer classes as a covering during sleep, couldnot be retained by the creditor to whom it had been given in pledge, andof course was exempt by law from seizure for debt; and our blessedSaviour, in his sermon on the mount, has been supposed to refer to thisexemption law, when he said: "And if any man will sue thee at the lawand take away thy coat, let him have thy cloak also;" that is, confinenot yourself in your transactions with your fellow-men to giving themsimply the strict measure of their legal rights: give them all that ishonestly theirs as far as you have ability, whether the law affords thema remedy or not. There have been some noble instances of bankrupts who, upon subsequently retrieving their fortunes, have fully discharged alltheir old debts, principal and interest, though released or barred bythe Statute of Limitations; but such instances would be more common ifthe spirit of the high and pure morality, which breathes through thesermon on the mount, prevailed more extensively. 

An important clause in the official oath is "to delay no man's cause forlucre or malice. " It refers, no doubt, primarily, to the cause intrustedto the attorney, and prohibits him from resorting to such means for thepurpose of procuring more fees, or of indulging any feeling he may haveagainst his client personally. Such conduct would be a clear case of aviolation of the oath. But it is a question, also, whether the casegenerally, in which he is retained, is not comprehended. [23] How far, then, can he safely go in delaying the cause for the benefit of, and inpursuance of the instructions of his client? A man comes to him andsays: "I have no defence to this claim; it is just and due, but I havenot the means to pay it; I want all the time you can get for me. " Thebest plan in such instances, is, no doubt, at once frankly to addresshis opponent, and he will generally be willing to grant all the delaywhich he knows, in the ordinary course can be gained, and perhaps more, as a consideration for his own time and trouble saved. If, however, thatbe impracticable, it would seem that the suitor has a right to all thedelay, which is incident to the ordinary course of justice. The counselmay take all means for this purpose, which do not involve artifice orfalsehood in himself or the party. The formal pleas put in are not to beconsidered as false in this aspect, except such as are required to besustained by oath. In an ejectment, for example, an appearance need notbe entered until the second term, the legislature having seen fit togive that much respite to the unjust possessor of real estate. But tostand by and see a client swear off a case on account of the absence ofa material witness, when he knows that no witness can be material; orfurther to make affidavit that his appeal or writ of error is notintended for delay, when he knows that it is intended for nothing else, no high-minded man will be privy or consent to such actions, much lesshave any active participation in them. 

Subject, however, to the qualifications which have been stated, when acause is undertaken, the great duty which the counsel owes to hisclient, is an immovable fidelity. Every consideration should induce anhonest and honorable man to regard himself, as far as the cause isconcerned, as completely identified with his client. The criminal anddisgraceful offence of taking fees of two adversaries, of allowinghimself to be approached corruptly, whether directly or indirectly, witha view to conciliation, ought, like parricide in the Athenian law, to bepassed over in silence in a code of professional ethics. [24] Allconsiderations of self should be sunk by the lawyer in his duty to thecause. The adversary may be a man of station, wealth, and influence; hisgood will may be highly valuable to him; his enmity may do him greatinjury. He should not permit such thoughts to arise in his mind. Heshould do his duty manfully, without fear, favor, or affection. 

At the same time, let it be observed, that no man ought to allow himselfto be hired to abuse the opposite party. It is not a desirableprofessional reputation to live and die with, that of a rough tongue, which makes a man to be sought out, and retained to gratify themalevolent feelings of a suitor in hearing the other side well lashedand vilified. An opponent should always be treated with civility andcourtesy, and if it be necessary to say severe things of him or hiswitnesses, let it be done in the language, and with the bearing, of agentleman. There is no point in which it becomes an advocate to be morecautious, than in his treatment of the witnesses. In general, fierceassaults upon them, unnecessary trifling with their feelings, rough anduncivil behavior towards them in cross-examination, whilst it maysometimes exasperate them to such a pitch, that they will perjurethemselves in the drunkenness of their passion, still, most generallytells badly on the jury. They are apt to sympathize with a witness undersuch circumstances. [25] It is as well unwise as unprofessional, incounsel, to accuse a witness of having forsworn himself, unless somegood ground, other than the mere instruction of the client, is presentin the evidence to justify it. He may sift most searchingly, and yetwith a manner and courtesy which affords no ground for irritation, either in witness or opponent; and in such case, if his questionsproduce irritation, it is a circumstance which will weigh in his favor. 

The practitioner owes to his client, with unshaken fidelity, theexertion of all the industry and application of which he is capable tobecome perfect master of the questions at issue, to look at them in alltheir bearings, to place himself in the opposite interest, and toconsider and be prepared as far as possible, for all that may be said ordone on the contrary part. The duty of full and constant preparation, istoo evident to require much elaboration. It is better, whenever it ispossible to do so, to make this examination immediately upon theretainer, and not to postpone it to later stages in the proceedings. Theopportunity is often lost, of ascertaining facts, and securing evidence, from putting off till too late, the business of understanding thoroughlyall that it will be necessary to adduce on the trial. In this way, alawyer will attain what is very important, that his client may be alwaysprepared, as well as himself, have his attention alive to his case, knowwhat witnesses are important, and keep a watch upon them, so that theirtestimony may not be lost, and upon the movements of his adversary, lesthe should at any time be taken by surprise. It would be an excellentrule for him, at short stated periods, to make an examination of therecord of every case which he has under his charge. It always operatesdisadvantageously to an attorney in the eyes of those who employ him, aswell as the public, when he fails in consequence of some neglect oroversight. Frequent applications to the court, to relieve him from theconsequences of his inattention, tell badly on his character andbusiness. He may be able to make very plausible excuses; but the publictake notice, that some men with large business never have occasion tomake such excuses, and that other men with less, are constantly makingthem. Every instance of the kind helps to make up such a character. Ayoung man should be particularly cautious, and dread such occurrences ashighly injurious to his prospects. If he escapes the notice andanimadversion of his constituent, and the legal consequences of hisneglect, by the intervention of the court, or the indulgence of hisopponent, the members of the Bar are lynx-eyed in observing such things. 

It may appear like digressing from our subject, to speak of suchqualities as attention, accuracy, and punctuality, but like the minormorals of common life, they are little rills which at times unite andform great rivers. A life of dishonor and obscurity, if not ignominy, has often taken its rise from the fountain of a little habit ofinattention and procrastination. System is everything. It can accomplishwonders. By this alone, as by a magic talisman, may time be soeconomized that business can be attended to and opportunities saved forstudy, general reading, exercise, recreation, and society. "A man thatis young in years, " says Lord Bacon, "may be old in hours, if he haslost no time. " Hurry and confusion result from the want of system; andthe mind can never be clear when a man's papers and business are indisorder. It is recorded of the pensionary De Witt, of the UnitedProvinces, who fell a victim to the fury of the populace in the year1672, that he did the whole business of the republic, and yet had timeleft for relaxation and study in the evenings. When he was asked how hecould possibly bring this to pass, his answer was, that "nothing was soeasy; for that it was only doing one thing at a time, and never puttingoff anything till to-morrow that could he done to-day. " "This steady andundissipated attention to one object, " remarks Lord Chesterfield, inrelating this anecdote, "is a sure mark of a superior genius. " It is ofthe highest importance, also, that a lawyer should in early professionallife, cultivate the habit of accuracy. It is a great advantage overopposing counsel, --a great recommendation in the eyes of intelligentmercantile and business men. A professional note to a merchantcarelessly written will often of itself produce an unfavorableimpression on his mind; and that impression he may communicate to manyothers. The importance of a good handwriting cannot be overrated. Aplain legible hand every man can write who chooses to take the pains. Agood handwriting is a passport to the favor of clients, and to the goodgraces of judges, when papers come to be submitted to them. It would bea good rule for a young lawyer, though at first perhaps irksome andinconvenient, never to suffer a letter or paper to pass from his handswith an erasure or interlineation. The time and trouble it may cost atthe outset will be repaid in the end by the habit he will therebyacquire of transacting his business with care, neatness, and accuracy. 

He cannot be faithful to his clients unless he continues to be a hardstudent of the learning of his profession. Not merely that he shouldthoroughly investigate the law applicable to every case which may beintrusted to him; though that, besides its paramount necessity to enablehim to meet the responsibility he has assumed to that particular client, will be the subsidiary means of important progress in his professionalacquisitions. "Let any person, " says Mr. Preston, "study one or twoheads of the law fully and minutely, and he will have laid thefoundation or acquired the aptitude for comprehending other heads ofthe law. "[26] But, besides this, he should pursue the systematic studyof 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 hehave mastered some of the most general elementary principles, and hasacquired a taste for the study, it is as much as can be expected fromhis clerkship. There are few young men who come to the Bar, who cannotfind ample time in the first five or seven years of their novitiate, todevote to a complete acquisition of the science they profess, if theytruly feel the need of it, and resolve to attain it. The danger is greatthat from a faulty preparation, --from not being made to see andappreciate the depth, extent, and variety of the knowledge they are toseek, they will mistake the smattering they have acquired for profoundattainments. The anxiety of the young lawyer is a natural one at once toget business--as much business as he can. Throwing aside his books, heresorts to the many means at hand of gaining notoriety and attractingpublic attention, with a view of bringing clients to his office. Such anone in time never fails to learn much by his mistakes, but at a sadexpense of character, feeling, and conscience. He at last finds that inlaw, as in every branch of knowledge, "a little learning is a dangerousthing;" that what he does not know falsifies often in its actualapplication that which he supposed he certainly did know; and after themost valuable portion of his life has been frittered away upon objectsunworthy of his ambition, he is too apt to conclude that it is now toolate to redeem his time; he finds that he has lost all relish forsystematic study, and when he is driven to the investigation ofparticular questions, is confounded and embarrassed--unable to threadhis way through the mazes of authorities, to reconcile apparentlyconflicting cases, or deduce any satisfactory conclusion from them--inshort, he has no greater aptitude, accuracy, and discrimination thanwhen he set out in the beginning of his studies. No better advice canbe given to a young practitioner, than to confine himself generally tohis office and books, even if this should require self-denial andprivation, to map out for himself a course of regular studies, more orless extended, according to circumstances, to aim at mastering the worksof the great luminaries of the science, Coke, Fearne, Preston, Powell, Sugden, and others, not forgetting the maxim, _melius est petere fontesquam sectari rivulos_, and to investigate for himself the most importantand interesting questions, by an examination and research of theoriginal authorities. "He that reacheth deepest seeth the amiable andadmirable, secrets of the law, "[27] and thus may the student "proceed inhis reading with alacrity, and set upon and know how to work into withdelight these rough mines of hidden treasure. "[28]

It may be allowed here to commend to most serious consideration, theremarks of one of the most eminent of the profession--Horace Binney--agentleman of our own Bar, whose example enforces and illustrates theirvalue: "There are two very different methods of acquiring a knowledge ofthe laws of England, and by each of them, men have succeeded in publicestimation to an almost equal extent. One of them, which may be calledthe old way, is a methodical study of the general system of law, and ofits grounds and reasons, beginning with the fundamental law of estatesand tenures, and pursuing the derivative branches in logical succession, and the collateral subjects in due order; by which the student acquiresa 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 systemand what not. The other is, to get an outline of the system, by the aidof commentaries, and to fill it up by the desultory reading of treatisesand reports, according to the bent of the student, without much shape orcertainty in the knowledge so acquired, until it is given byinvestigation in the course of practice. A good deal of law may be puttogether by a facile or flexible man, in the second of these modes, andthe public are often satisfied; but the profession itself knows thefirst, by its fruits, to be the most effectual way of making a greatlawyer. "[29]

Such a course of study as is here recommended, is not the work of a dayor a year. In the meantime let business seek the young attorney; andthough it may come in slowly, and at intervals, and promise in itscharacter neither fame nor profit, still, if he bears in mind that it isan important part of his training, that he should understand thebusiness he does thoroughly, that he should especially cultivate, intransacting it, habits of neatness, accuracy, punctuality, and despatch, candor towards his client, and strict honor towards his adversary, itmay be safely prophesied that his business will grow as fast as it isgood for him that it should grow; while he gradually becomes able tosustain the largest practice, without being bewildered and overwhelmed. 

Let him be careful, however, not to settle down into a mere lawyer. Toreach the highest walks of the profession, something more is needed. Letpolite literature be cultivated in hours of relaxation. Let him lose nothis acquaintance with the models of ancient taste and eloquence. Heshould study languages, as well from their practical utility in acountry so full of foreigners, as from the mental discipline, and therich stores they furnish. He should cultivate a pleasing style, and aneasy and graceful address. It may be true, that in a "court of justice, the veriest dolt that ever stammered a sentence, would be more attendedto, with a case in point, than Cicero with all his eloquence, unsupported by authorities, "[30] yet even an argument on a dry point oflaw, produces a better impression, secures a more attentive auditor inthe judge, when it is constructed and put together with attention to therules of the rhetorical art; when it is delivered, not stammeringly, butfluently; when facts and principles, drawn from other fields ofknowledge, are invoked to support and adorn it; when voice, and gesture, and animation, give it all that attraction which earnestness always andalone imparts. There is great danger that law reading, pursued to theexclusion of everything else, will cramp and dwarf the mind, shackle itby the technicalities with which it has become so familiar, and disableit from taking enlarged and comprehensive views even of topics fallingwithin its compass as well as of those lying beyond its legitimatedomain. An amusing instance of this is said to have occurred in thedebate in the House of Commons, on the great question as to the right ofthe Parliament of Great Britain to tax the Colonies. At the close of thediscussion, in which Fox and Burke, as well as others, had distinguishedthemselves, a learned lawyer arose and said that the real point on whichthe whole matter turned, had been unaccountably overlooked. In the midstof deep silence and anxious expectation from all quarters of the House, he proceeded to show that the lands of the Colonies had been originallygranted by the Crown, and were held _ut de honore_, as of the Manor ofGreenwich, in the county of Kent; and thence he concluded that as theManor of Greenwich was represented in Parliament, so the lands of theNorth American Colonies (by tenure, a part of the Manor) wererepresented by the knights of the shire for Kent. [31]

Let me remark, too, before hastening to another topic more immediatelyconnected with the duties of active professional life, that thecultivation of a taste for polite literature has other importancebesides its value as a preparation and qualification for practice andforensic contests. Nothing is so well adapted to fill up the intersticesof business with rational enjoyment, to make even a solitary lifeagreeable, and to smooth pleasantly and honorably the downward path ofage. The mental vigor of one who is fond of reading, other things beingequal, becomes impaired at a much later period of life. The lover ofbooks has faithful companions and friends, who will never forsake himunder the most adverse circumstances. "As soon as I found, " said SirSamuel Romilly, "that I was to be a busy lawyer for life, I strenuouslyresolved to keep up my habit of non-professional reading; for I hadwitnessed so much misery in the last years of many great lawyers, whom Ihad known, from their loss of all taste for books, that I regarded theirfate as my warning. " Mr. Gibbon was wont to say that he would notexchange his love of reading for the wealth of the Indies. It is indeeda fortune, of which the world's reverses can never deprive us. Itfortifies the soul against the calamities of life. It moderates, if itis not strong enough to govern and control the passions. It favors notthe association of the cup, the dice-box, or the debauch. The atmosphereof a library is uncongenial with them. It clings to home, nourishes thedomestic affections, and the hopes and consolations of religion. 

Another very delicate and often embarrassing question in the relation ofattorney and client is in regard to the subject of compensation forprofessional services. 

In all countries advanced in civilization, and whose laws and mannershave attained any degree of refinement, there has arisen an order ofadvocates devoted to prosecuting or defending the lawsuits of others. Before the tribunals of Athens, although the party pleaded his owncause, it was usual to have the oration prepared by one of an order ofmen devoted to this business, and to compensate him liberally for hisskill and learning. Many of the orations of Isocrates, which have beenhanded down to us, are but private pleadings of this character. He issaid to have received one fee of twenty talents, about eighteenthousand dollars of our money, for a speech that he wrote for Nicocles, king of Cyprus. Still, from all that appears, the compensation thusreceived was honorary or gratuitous merely. Among the early institutionsof Rome, the relation of patron and client, which existed between thepatrician and plebeian, bound the former to render the latter assistanceand protection in his lawsuits, with no other return than the generalduty, which the client owed to his patron. As every patrician could notbe a sufficiently profound lawyer to resolve all difficulties, whichmight arise in the progress of a complex system of government and laws, though he still might accomplish himself in the art of eloquence, therearose soon a new order of men, the jurisconsults. They also received nocompensation. On the public days of market, or assembly, the masters ofthe art were seen walking in the forum, ready to impart the needfuladvice to the meanest of their fellow-citizens, from whose votes on afuture occasion, they might solicit a grateful return. As their yearsand honors increased, they seated themselves at home, on a chair orthrone, to expect with patient gravity the visits of their clients, whoat the dawn of day, from the town and country, began to thunder at theirdoors. [32] Often, indeed, the patron was able in his own person toexercise the office both of advocate and counsellor. It was only in themore glorious, because the more virtuous, period of the republic, thatthe relation was sustained upon so honorable a foundation. In theprogress of society, the business of advocating causes became a distinctprofession; and then it was usual to pay a fee in advance, which wascalled a gratuity or present. As this was a mere honorary recompense, the client was under no legal obligation to pay it. But the resultnecessarily was, that if the usual present was not given, the advocatedid not consider himself bound in honor to undertake the advocation ofthe cause before the courts. Afterwards, Marcus Cincius Alimentus, thetribune of the people, procured the passage of the law known as the_Cincian_ law, prohibiting the patron or advocate from receiving anymoney or other present for any cause; and annulling all gratuities orpresents made by the client to the patron or advocate. But as no penaltywas prescribed for the breach of the law, it of course became a deadletter. The Emperor Augustus afterwards re-enacted the Cincian law, andprescribed penalties for its breach. But towards the end of his reign, the advocates were again authorized to receive fees or presents fromtheir clients. The Emperor Tiberius also permitted them to receive suchforced gratuities. This led to the abuse referred to by Tacitus, andinduced the Senate to insist upon the enforcement of the re-enactment ofthe Cincian law, or rather a law limiting the amount of the fees ofadvocates. [33] Nero revoked the law of Claudian, which was subsequentlyre-enacted by the Emperor Trajan, with the additional restriction thatthe advocate should not be permitted to receive his fee or gratuity, until the cause was decided. The younger Pliny mentions a law, whichauthorized the advocate, after the pleadings in the cause had been madeand the judgment had been given, to receive the fee, which might bevoluntarily offered by the client, either in money or a promise to pay. Erskine, in his Institutes of the Law of Scotland, understands the lawin the Digest _De Extraordinariis Cognitionibus_ as authorizing a suitfor the fee of a physician or advocate without a previous agreement fora specific sum. [34]

The consequences may be best told in the impressive language of thehistorian of the Decline and Fall of the Empire: "The noble art, whichhad once been preserved as the sacred inheritance of the patricians, wasfallen into the hands of freedmen and plebeians, who, with cunningrather than with skill, exercised a sordid and pernicious trade. Some ofthem procured admittance into families for the purpose of fomentingdifferences, of encouraging suits, and of preparing a harvest of gainfor themselves or their brethren. Others, recluse in their chambers, maintained the dignity of legal professors, by furnishing a rich clientwith subtleties to confound the plainest truth, and with arguments tocolor the most unjustifiable pretensions. The splendid and popular classwas composed of the advocates, who filled the Forum with the sound oftheir 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 ofdisappointment; from whence, after a tedious series of years, they wereat length dismissed when their patience and fortune were almostexhausted. "[35] Is not this probably the history of the decline of theprofession in all countries from an honorable office to a money-makingtrade?

It is the established law of England, that a counsellor or barristercannot maintain a suit for his fees. [36] There is in that country aclass of mere attorneys, who attend to legal business out of court, whobring suits and conduct them up to issue; but who are not allowed tospeak in court. This latter privilege is confined to serjeants andbarristers. Attorneys are regulated by statute, and are subject to manyrestrictions; having a rate of fees, settled either by statute orestablished usage; and required to be fixed by the taxation of anofficer of the court before a suit can be brought for them. Barristersare admitted only under the regulations established by the various innsof court; and the serjeants, who long had the monopoly of the Bar of theCommon Pleas, are appointed by patent from the king. A barrister cannotbe an attorney. [37]

In this country, there is in general no distinction between attorneysand counsellors. The same persons fulfil the duties of both. Hence nodifference is made between their right to recover compensation forservices in the one capacity or the other. [38] In Pennsylvania, it washeld at one time that an attorney could not recover, without an expresspromise, anything beyond the trifling and totally inadequate sumprovided in the fee-bill. That pure and eminent jurist Chief JusticeTilghman thought that the policy of refusing a legal remedy for anythingbeyond that had not been adopted without great consideration. [39] Hestands not alone in the opinion that it has been neither for the honornor profit of the Bar to depart from the ancient rule. [40] It has beendeparted from in this State, and the early decision overruled, however;and it must be frankly admitted, that the current of decisions in oursister States is in the same way. [41]

It is supposed that the ancient rule was artificial in its structure, and practically unjust, --that it is wholly inconsistent with our ideasof equality to suppose that the business or profession, by which any oneearns the daily bread of himself or of his family, is so much morehonorable than the business of other members of the community as toprevent him from receiving a fair compensation for his services on thataccount. [42] It has been pronounced ridiculous to attempt to perpetuatea 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 ofthe law in the light of the patrician jurisconsults of ancient Rome, when

 ---- dulce diu fuit et solemne, reclusa Mane domo vigilare, clienti promere jura, --

and who at daybreak received the early visits of their humble anddependent clients, and pronounced with mysterious brevity the oracles ofthe law. [43]

These are arguments which are more plausible than sound: they areimposing, but not solid. The question really is, what is best for thepeople at large, --what will be most likely to secure them a high-minded, honorable Bar? It is all-important that the profession should have anddeserve that character. A horde of pettifogging, barratrous, custom-seeking, money-making lawyers, is one of the greatest curseswith which any state or community can be visited. What more likely tobring about such a result than a decision, which strips the Bar of itscharacter 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 ofsociety reversed, and clients are really the _patrons_ of theirattorneys? A more plausible reason is that the client is safer from theoppression of extortionate counsel, by putting both upon the equalfooting of legal right and obligation. It would appear, however, betterthat the parties should make an express agreement before or at the timeof retainer, or that the amount should be left to the justice of thecounsel, and the honor and liberality of the client subsequently. Everyjudge, who has ever tried a case between attorney and client, has feltthe delicacy and difficulty of saying what is the measure of justcompensation. It is to be graduated, according to a high legalauthority, with a proper reference to the nature of the businessperformed by the counsel for the client, and his standing in hisprofession for learning and skill; whereby the value of his services isenhanced to his client. [44] Is then the standing and character of thecounsel in his profession for learning and skill to be a question offact to be determined by the jury in every case in which a lawyer sueshis client? How determined, if necessary to the decision of thequestion? Not surely by the crude opinions of the jurors; but bytestimony of members of the same profession on the subject. This neveris done; it would be a very difficult as well as delicate question for alawyer to pronounce upon the standing of a professional brother. Themost that can be done is to call gentlemen to say what they would haveconsidered reasonable for such services, had they been performed bythemselves. Some may testify up to a very high point, from an excusable, though foolish vanity; others to a very low one, from the despicable, desire of attracting custom to a cheap shop. [45] No one can ever haveseen such a cause tried without feeling, that the Bar had received by itan impulse downwards in the eyes of bystanders and the community. Thecase is thrown into the jury-box, to be decided at haphazard, accordingas the twelve men may chance to think or feel. He, who narrowly watchessuch controversies, cannot fail to see that the right of a counsel toenforce his claim for legal compensation is far from being calculated toprotect the client from oppression and extortion. 

It is not worth while, however, to quarrel with the decision. Let usinquire rather what should be the course of counsel, without regard toit. He certainly owes it to his profession, as well as himself, thatwhen the client has the ability, his services should be recompensed; andthat according to a liberal standard. [46] There are many cases, in whichit will be his duty, perhaps more properly his privilege, to work fornothing. It is to be hoped, that the time will never come, at this orany 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 anextraordinary--a very peculiar case--that will justify an attorney inresorting to legal proceedings, to enforce the payment of fees. It isbetter that he should be a loser, than have a public contest upon thesubject with a client. The enlightened Bar of Paris, have justlyconsidered the character of their order involved in such proceedings;and although by the law of France, an advocate may recover for his feesby suit, yet they regard it as dishonorable, and those who shouldattempt to do it, would be immediately stricken from the roll ofattorneys. [47]

Regard should be had to the general usage of the profession, especiallyas to the rates of commission to be charged for the collection ofundefended claims. Except in this class of cases, agreements betweencounsel and client that the compensation of the former shall depend uponfinal success in the lawsuit--in other words contingent fees--howevercommon such agreements may be, are of a very dangerous tendency, and tobe declined in all ordinary cases. In making his charge, after thebusiness committed to him has been completed, as an attorney may welltake into consideration the general ability of his client to pay, so hemay also consider the pecuniary benefit, which may have been derivedfrom his services. For a poor man, who is unable to pay at all, theremay be a general understanding that the attorney is to be liberallycompensated in case of success. What is objected to, is an agreement toreceive a certain part or proportion of the sum, or subject-matter, inthe event of a recovery, and nothing otherwise. 

It is unnecessary to inquire here whether such a contract is void aschampertous, and contrary to public policy. None of the English statuteson the subject of champerty have been reported as in force here; but itwas once a question whether it was not an offence at common law, independently altogether, of any statute enactment. Enlightened judgesin several of our sister States have so considered it. "The purchase ofa lawsuit, " says Chancellor Kent, "by an attorney, is champerty in itsmost odious form; and it ought equally to be condemned on principles ofpublic policy. It would lead to fraud, oppression, and corruption. As asworn minister of the courts of justice, the attorney ought not to bepermitted to avail himself of the knowledge he acquires in hisprofessional character, to speculate in lawsuits. The precedent wouldtend to corrupt the profession, and produce lasting mischief to thecommunity. "[48] "This is not the time nor place, " says Chief JusticeGibson, "to discuss the legality of contingent fees; though it be clearthat if the British statutes of champerty were in force here, such feeswould be prohibited by them. But a contract of the sort is certainly notto be encouraged by implication, from a questionable usage, norestablished by less than a positive stipulation. "[49] A contract toallow a compensation for services in procuring the passage of a privateAct of Assembly, has been held to be unlawful and void, as againstpublic policy. [50] "The practice, " said Judge Rogers, in delivering theopinion of the court, "which has generally obtained in this State, toallow a contingent compensation for legal services, has been a subjectof regret; nor am I aware of any direct decision by which the practicehas received judicial sanction in our courts. " The case of _Ex partePlitt_, [51] however, recognizes fully the lawfulness of contingent fees, though in his opinion Judge Kane says: "It is not a practice to begenerally commended, exposing honorable men not unfrequently tomisapprehension and illiberal remark, and giving the apparent sanctionof their example to conduct, which they would be among the foremost toreprehend. Such contracts may sometimes be necessary in a community suchas that of Pennsylvania has been, and perhaps as it is yet; and whenthey have been made in abundant good faith--_uberrima fide_--withoutsuppression or reserve of fact or exaggeration of apprehendeddifficulties, or under influence of any sort or degree; and when thecompensation bargained for is absolutely just and fair, so that thetransaction is characterized throughout by 'all good fidelity to theclient, ' the court will hold such contracts to be valid. But it isunnecessary to say, that such contracts, as they can scarcely beexcepted from the general rule, which denounces as suspicious thedealings of fiduciaries with those under their protection, must undergothe most exact and jealous scrutiny before they can expect the judicialratification. " Finally, the question of law may be considered as at restin Pennsylvania by the decision of the Supreme Court in Patten _v. _Wilson, [52] which recognized an agreement between counsel and client topay him out of the verdict as an equitable assignment, and gave effectto it as against an attaching creditor. 

It is not, however, with the lawfulness, but with the policy andmorality of the practice, that we are now dealing. Admitting itslegality, is it consistent with that high standard of moral excellence, which the members of this profession should ever propose to themselves?

Let us look at what would be the results of such a practice, if itbecame general. If these are bad, if its tendency is to corrupt anddegrade the character of the profession, then, however confident any manmay feel in his moral power to ward off its evil influences from his owncharacter and conduct, he should be careful not to encourage and givecountenance to it by his example. 

It is one of that class of actions, which in particular instances may beindifferent; but their morality is to be tested by considering whatwould be the consequences of their general prevalence. 

It is to be observed, then, that such a contract changes entirely therelation of counsel, to the cause. It reduces him from his high positionof an officer of the court and a minister of justice, to that of a partylitigating his own claim. Having now a deep personal interest in theevent of the controversy, he will cease to consider himself subject tothe ordinary rules of professional conduct. He is tempted to makesuccess, 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 difficultto persuade himself, no matter what state of facts might be developed inthe progress of the proceedings, as to the true character of thetransaction, that it was his duty to retire from it. 

It places his client and himself in a new and dangerous relation. Theyare 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 asto the law, and abide by instructions. It is either unfair to him orunfair to the client. If he thinks the result doubtful, he throws allhis time, learning, and skill away upon what, in his estimation, is anuncertain 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 ahigher compensation than he is justly entitled to receive. 

It is an undue encouragement to litigation. Men, who would not think ofentering on a lawsuit, if they knew that they must compensate theirlawyer whether they win or lose, are ready upon such a contingentagreement to try their chances with any kind of a claim. It makes thelaw more of a lottery than it is. 

The worst consequence is yet to be told, --its effect upon, professionalcharacter. It turns lawyers into higglers with their clients. Of courseit is not meant that these are always its actual results; but they areits inevitable tendencies, --in many instances its practical working. Todrive a favorable bargain with the suitor in the first place, thedifficulties of the case are magnified and multiplied, and advantagetaken of that very confidence, which led him to intrust his interests tothe protection of the advocate. [53] The parties are necessarily not onan equal footing in making such a bargain. A high sense of honor mayprevent counsel from abusing his position and knowledge; but all havenot such high and nice sense of honor. If our example goes towardsmaking the practice of agreements for contingent fees general, we assistin placing such temptations in the way of our professional brethren ofall degrees--the young, the inexperienced, and the unwary, as well asthose whose age and experience have taught them that a lawyer's honor ishis brightest jewel, and to be guarded from being sullied, even by thebreath of suspicion, with the most sedulous care. 

A gentleman of the largest experience and highest character forintegrity and learning at the Philadelphia Bar, thus strongly confirmsthe views which have been here expressed on the subject of contingentfees: "And further, " says Mr. Price in his concluding advice tostudents, at the close of his Essay on Limitation and Lien, "permit meto advise and earnestly to admonish you, for the preservation ofprofessional honor and integrity, to avoid the temptation of bargainingfor fees or shares of any estate or other claim, contingent upon asuccessful recovery. The practice directly leads to a disturbance of thepeace of society and to an infidelity to the professional obligationpromised to the court, in which is implied an absence of desire oreffort of one in the ministry of the Temple of Justice, to obtain asuccess that is not just as well as lawful. It is true, as a justequivalent for many cases honorably advocated and incompetently paid bythe poor, a compensation may and will be received, the more liberalbecause of the ability produced by success; but let it be the result ofno bargain, exacted as a price before the service is rendered, butrather the grateful return for benefits already conferred. If rigid inyour terms, in protection of the right of the profession to a just andhonorable compensation, let it rather be in the amount of the requiredretainer, when it will have its proper influence in the discouragementof litigation. "

A lawyer should avoid, as far as possible, all transactions of businesswith his clients, not only in regard to matters in suit in his hands, but in relation to other matters. He should avoid standing toward them, either in the relation of borrower or lender. A young practitionershould especially avoid borrowing of any one. Let him retrench, seek thehumblest employment of drudgery rather than do it; but, if borrow hemust, let it be of any one else than a client. All transactions ofbusiness between attorney and client are looked upon with eyes ofsuspicion and disfavor, in courts of justice. 

It is a settled doctrine of equity, in England, that an attorney cannot, while the business is unfinished in which he had been employed, receiveany gift from his client, or bind his client in any mode to make himgreater compensation for his services than he would have a right todemand if no contract should be made during the relation. If an attorneyaccept a gift from one thus connected with him, it may be recovered in acourt of chancery, by the donor or his creditors, should it be necessaryfor them to assert a right to it to satisfy their demands. When therelation of solicitor and client exists, and a security is taken by thesolicitor from his client, the presumption is that the transaction isunfair; and the onus of proving its fairness is upon the solicitor. [54]A man ought to be very careful of placing himself in a position to haveany of his transactions regarded in that light. If it should ever cometo be canvassed in court, the bandying of the phrases, fraud andpresumption of fraud, as applied to him, may, and probably will, have anunfavorable effect on his reputation. Most emphatically should it besaid, let nothing tempt him, not even the knowledge and consent of theclient, to keep the money, which may have come to his handsprofessionally, one single instant longer than is absolutely necessary. The consequences of any difficulty arising upon this head, will be fatalto his professional character and prospects. 

The official oath, to which reference has already more than once beenmade, obliges the attorney "to use no falsehood. " It seems scarcelynecessary to enforce this topic. Truth in all its simplicity--truth tothe court, client, and adversary--should be indeed the polar star of thelawyer. The influence of only slight deviations from truth, uponprofessional character, is very observable. A man may as well bedetected in a great as a little lie. A single discovery, amongprofessional brethren, of a failure of truthfulness, makes a man theobject of distrust, subjects him to constant mortification, and soonthis want of confidence extends itself beyond the Bar to those whoemploy the Bar. That lawyer's case is truly pitiable, upon theescutcheon of whose honesty or truth, rests the slightest tarnish. 

Let it be remembered and treasured in the heart of every student, thatno man can ever be a truly great lawyer, who is not in every sense ofthe word, a good man. A lawyer, without the most sterling integrity, mayshine for a while with meteoric splendor; but his light will soon go outin blackness of darkness. It is not in every man's power to rise toeminence by distinguished abilities. It is in every man's power, withfew exceptions, to attain respectability, competence, and usefulness. The temptations which beset a young man in the outset of hisprofessional life, especially if he is in absolute dependence uponbusiness for his subsistence, are very great. The strictest principlesof integrity and honor, are his only safety. Let him begin by swervingfrom truth or fairness, in small particulars, he will find his charactergone--whispered away, before he knows it. Such an one may not indeed beirrecoverably lost; but it will be years before he will be able toregain a firm foothold. There is no profession, in which moral characteris so soon fixed, as in that of the law; there is none in which it issubjected 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 andlife itself, we confide to the integrity of our legal counsellors andadvocates. Their character must be not only without a stain, but withoutsuspicion. From the very commencement of a lawyer's career, let himcultivate, above all things, truth, simplicity, and candor: they are thecardinal virtues of a lawyer. Let him always seek to have a clearunderstanding of his object: be sure it is honest and right, and thenmarch directly to it. The covert, indirect, and insidious way of doinganything, is always the wrong way. It gradually hardens the moralfaculties, renders obtuse the perception of right and wrong in humanactions, weighs everything in the balances of worldly policy, and endsmost generally, in the practical adoption of the vile maxim, "that theend sanctifies the means. " If it be true, as he has said, who, more thanany mere man, before or since his day, understood the depths of humancharacter, that one even may, "By telling of it, Make such a sinner of his memory; To credit his own lie:"--

we should be careful never to speak or act, without regard to the_morale_ of our words or actions. A habit may and will grow to be asecond nature. 

 "That monster, custom, who all sense doth eat, Of habit's devil, is angel yet in this: That to the use of actions fair and good He likewise gives a frock or livery That aptly is put on. "

There is no class of men among whom moral delinquency is more marked anddisgraceful than among lawyers. Among merchants, so many honest menbecome involved through misfortune, that the rogue may hope to takeshelter in the crowd, and be screened from observation. Not so thelawyer. If he continues to seek business, he must find his employment inlower and still lower grades; and will soon come to verify andillustrate the remark of Lord Bolingbroke, that "the profession of thelaw, in its nature the noblest and most beneficial to mankind, is in itsabuse and abasement, the most sordid and pernicious. "

While such are the depths to which a lawyer may sink, look, on the otherhand, at the noble eminence of honor, usefulness, and virtue, to whichhe may rise. Where is the profession, which, in this world, holds outbrighter rewards? Genius, indeed, will leave its mark in whatever sphereit may move. But learning, industry, and integrity, stand nowhere onsafer or higher ground, than in the walks of the law. In all freecountries, it is the avenue not only to wealth, but to politicalinfluence and distinction. In England, a large proportion of the houseof peers, owe their seats and dignities, as well as their possessions, either to their own professional success, or to that of some one oftheir ancestors. [55] In this country, all our Presidents but three, havebeen educated to the Bar. Of the men who have distinguished themselvesin the cabinet, in the halls of legislation, and in foreign diplomacy, how large is the proportion of lawyers! How powerful has always been theprofession in guiding the popular mind, in forming that greatest of allcounterchecks to bad laws and bad administration, --public opinion! It isthe school of eloquence--that, which more than all else besides, hasswayed, still sways, and always will sway, the destinies of freepeoples. Let a man, to the possession of this noble faculty, add thehigh character of purity and justice, integrity and honor, and where areto be found the limits of his moral power over his fellow-citizens?[56]It is well to read carefully and frequently, the biographies of eminentlawyers. It is good to rise from the perusal of the studies and labors, the trials and conflicts, the difficulties and triumphs, of such men, inthe actual battle of life, with the secret feeling of dissatisfactionwith ourselves. Such a sadness in the bosom of a young student, is likethe tears of Thucydides, when he heard Herodotus read his history at theOlympic Games, and receive the plaudits of assembled Greece. It is thenatural prelude to severer self-denial, to more assiduous study, to moreself-sustaining confidence. Some one has recommended that Middleton'sLife of Cicero should be perused, at frequent intervals, as the vividpicture of a truly great mind, in the midst of the most stirring scenes, ever intent upon its own cultivation and advancement, as its only trueglory; and that in effect sketched by his own master hand. [57] Theautobiography of Edward Gibbon will rouse an ambitious student like thesound of a trumpet. But of English biographies, there is no one, itoccurs to me, better adapted to the purpose mentioned, than the Life ofSir William Jones, by Lord Teignmouth. It exhibits the wonders, whichunremitted 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 mostvaried knowledge. An extensive and indeed extraordinary acquaintancewith ancient and modern languages, was perhaps his chief accomplishment. Although he engaged very late in life in the study of the law, such washis industry and success, that he soon occupied the highest judicialstation, in British India; and the profession are indebted to his pen, for one of the most beautiful of the elementary treatises, which adornthe lawyer's library. "In his early days, " says his biographer, "heseems to have entered upon his career of study, with this maxim stronglyimpressed upon his mind, that whatever had been attained, was attainableby him; and it has been remarked, that he never neglected nor overlookedany opportunity of improving his intellectual faculties, or of acquiringesteemed accomplishments. " Notwithstanding his numerous occupations atthe Bar at home, the onerous duties of his station in India, and hispremature death, before he had attained his forty-eighth year, he hasleft behind many learned works, which illustrate Oriental languages andhistory, and attest the extent of his labors and acquisitions. Indeed, it might be regarded as impossible, were we not informed of the regularallotment which he made of his time to particular occupations, and hisscrupulous adherence to the distribution he had thus made. The moralcharacter of this eminent man, was no less exemplary. It is thetestimony of one of his contemporaries: "He had more virtues and lessfaults, than I ever yet knew in any human being; and the goodness of hishead, admirable as it was, was exceeded by that of his heart. " His ownmeasure of true greatness, humanly speaking, he has left behind him, invery 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 thathas deserved most of his fellow-creatures. "[58]

This department of English literature has been recently much enrichedby the labors of the present Lord High Chancellor of England, LordCampbell. In America we have a few well written and instructive legalbiographies, among which ought especially to be named, Mr. Wheaton'sLife of William Pinkney, and Professor Parsons' interesting Memoir ofhis distinguished father, Chief Justice Parsons. Mr. Binney, at theclose of his honored and honorable life, is paying the debt, which everyman owes to his profession, in animated spirit-stirring sketches of hisgreat and good contemporaries. How forcibly does this distinguishedjurist illustrate the remark of Cicero in his Treatise on Old Age: "Sedvidetis, ut senectus non modo languida atque iners non sit, verum etiamsit operosa, et semper agens aliquid et moliens; tale scilicet, quodcujusque studium in superiore vita fuit. " What a noble example might beheld up, in the life and character of Chief Justice Marshall! Hisbiography, while it will be the record of active patriotism andhumanity, will exhibit a course of arduous self-training, for the greatconflicts of opinion, in which it was his lot afterwards to appear, withso much lustre. He had not the usual advantages of a collegiateeducation. The war of the Revolution, in which his ardent love ofcountry, and of the principles of rational liberty, led him to enlist, and where he distinguished himself in the field, materially interferedwith, and retarded his earlier professional studies; yet, the loftyeminence to which he attained in the opinion of his compatriots, even ofthose who could not concur in some of his views of the Constitution, theenduring monuments of his greatness in the decisions of the SupremeCourt of the United States, bespeak an intellect of the very firstorder, mental power naturally vigorous, but brought, by proper exercise, to a degree of strength that made it tower above the general level ofeducated men. His opinions do not abound in displays of learning. Hissimplicity, a character so conspicuous in all his writings andactions--that first and highest characteristic of true greatness--ledhim to say and do just what was necessary and proper to the purpose inhand. Its reflected consequences on his own fame as a scholar, astatesman, or a jurist, seem never once to have occurred to him. As ajudge, 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 yetwithal so easy evidently to him, as to show clearly, a mind in theconstant habit of such strong efforts. Though he filled for so manyyears the highest judicial position in this country, how much was hiswalk like the quiet and unobtrusive step of a private citizen, consciousof heavy responsibilities, and anxious to fulfil them; but unaware thatthe eyes of a nation--of many nations--were upon him! There was aroundhim none of the glare, which dazzles; but he was clothed in that puremellow light of declining evening, upon which we love to look. Where isthe trust to society more sacred, where are duties more important, orconsequences more extended, for individual or social weal or woe, thanthose which attach to the office he held? How apt, and aptly said, isthat prayer of Wolsey, when he is informed of the promotion of SirThomas More to the place of Lord Chancellor:

 "May he ... Do justice, For truth's sake and his conscience; that his bones, When he has run his course, and sleeps in blessings, May have a tomb of orphans' tears wept on him. "

It is surely a just subject of national, as well as professional pride, that an American lawyer can thus, pointing to the example of such a manas JOHN MARSHALL, hold up his character, his reputation, his usefulness, his greatness, as incentives to high and honorable ambition; andespecially, his life of unblemished virtue, and single-heartedpurity, --after all, his highest praise, for, as old Shirley says, "When our souls shall leave this dwelling, The glory of one fair and virtuous action Is above all the scutcheons on our tomb. "

Is it possible that a being so fearfully and wonderfully made as man, and animated by a spirit still more fearful and incomprehensible, wascreated for the brief term of a few revolutions of the planet he liveson? Shall his own physical and intellectual productions so long survivehim? 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 ofDemosthenes, an ode of Horace, a letter of Cicero, carry down to theremotest posterity the memorial of their names. Men found empires, establish constitutions, promulgate codes of laws; there have beenSolons, Alexanders, Justinians, and Napoleons. There have been thosejustly called Fathers of their country, and benefactors of their race. Have they, too, sunk to become clods of the valley? The mind, which canlook so far before and after--can subdue to its mastery the savages ofthe forests, and the fiercer elements of Nature--can stamp the creationof its genius upon the living canvas, or the almost breathing, speakingmarble--can marshal the invisible vibrations of air into soul-stirringor soul-subduing music--can pour forth an eloquence of words, with magicpower to lash the passions of many hearts into a raging whirlwind, orcommand them with a "peace, be still"--can make a book, a little book, which shall outlive pyramids and temples, cities and empires--canperceive and love beauty, in all its forms, and above all, moral beauty, and God, the infinite perfection of moral beauty, --no, this mind cannever die. Its moral progress must go on in an unending existence, ofwhich its life of fourscore years on earth is scarce the childhood. Letus 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 thegreat end of our being. 

APPENDIX. 

No. I. 

COURVOISIER'S CASE[59]

On Tuesday night, May 5th, 1840, Lord William Russell, infirm, deaf, andaged, being in his seventy-third year, was murdered in his bed. He was awidower, living at No. 14 Norfolk Street, Park Lane, London, a smallhouse, occupied by only himself and three servants, --Courvoisier, ayoung Swiss valet, and two women, a cook and house-maid. The evidencewas of a character to show very clearly that the crime had beencommitted by some one in the house; but, Courvoisier's behaviorthroughout had been that of an innocent man. Two examinations of histrunk, by the officers of the police, showed nothing suspicious; rewardshaving been offered by the government and family of the deceased; forthe detection of the criminal, a third examination was made ofCourvoisier's box, which resulted in the discovery of a pair of whitecotton gloves, two pocket handkerchiefs, and a shirt-front, stained withblood. The prisoner's counsel went to the trial with a full persuasionof his innocence, and conducted the cross-examination closely andzealously, especially of Sarah Mancer, one of the female domestics, witha view of showing that there was as much probability that the witness orthe other domestic was the criminal as the prisoner; and that thepolice, incited by the hopes of the large rewards offered, had conspiredto fasten the suspicion unjustly on him. At the close of the first day'sproceedings, the prosecutors were placed unexpectedly in possession of anew and important item of evidence: the discovery of the plate of thedeceased, 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 fewdays, before the committing of the murder. The parcel contained silverspoons, forks, a pair of gold auricles, all unquestionably the propertyof the unfortunate nobleman; and the only question remaining was, whether Courvoisier was the person who had so left it. If he were, itwould, of course, grievously for him, increase the _probabilities_ thatit must have been he who subsequently committed the murder, and with theobject of plunder. On the ensuing morning, the person who had made thisdiscovery (Mrs. Piolaine, the wife of a Frenchman, who kept a place ofentertainment, called L'Hotel de Dieppe, in Leicester Place, LeicesterSquare), was shown a number of prisoners in the prison-yard, one of whomwas Courvoisier, whom she instantly recognized as the person who hadleft the plate with her, and also had formerly lived in her employ. Courvoisier also suddenly recognized her, and with dismay. The immediateeffect of his panic was the confession of his guilt to his counsel atthe bar of the court, a few minutes afterwards, coupled with his desire, nevertheless, to be defended to the utmost. His probable object wassimply to prepare his counsel against the forthcoming evidence. Theprisoner was convicted, and afterwards confessed his crime. Mr. Phillips's conduct of the defence was criticized at the time, in thecolumns of the Examiner, but he suffered it to pass in silence. In 1849, that periodical renewed the accusation originally made, upon which thefollowing correspondence appeared in the London Times of Nov. 20th, 1849. 

TO THE EDITOR OF THE "TIMES. "

SIR, --I shall esteem it a great favor if you will allow the accompanyingdocuments to appear in the "Times. " Its universal circulation affords mean opportunity of annihilating a calumny recently revived, which has fornine years harassed my friends far more than myself. 

 I am, &c. , CHARLES PHILLIPS. 39 Gordon Square. 

 INNER TEMPLE, Nov. 14, 1849. 

MY DEAR PHILLIPS, --It was with pain that I heard yesterday of anaccusation having been revived against you in the "Examiner" newspaper, respecting alleged dishonorable and most unconscientious conduct on yourpart, when defending Courvoisier against the charge of having murderedLord William Russell. Considering that you fill a responsible judicialoffice, and have to leave behind you a name unsullied by any blot orstain, I think you ought to lose no time in offering, as I believe youcan truly do, a public and peremptory contradiction to the allegationsin question. The mere circumstances of your having been twice promotedto judicial office by two lord chancellors, Lord Lyndhurst and LordBrougham, since the circulation of the reports to which I am alluding, and after those reports had been called to the attention of at least oneof those noble and learned lords, is sufficient evidence of thegroundlessness of such reports. 

Some time ago I was dining with Lord Denman, when I mentioned to him thereport in question. His lordship immediately stated that he had inquiredinto the matter, and found the charge to be utterly unfounded; that hehad spoken on the subject to Mr. Baron Parke, who had sat on the Benchbeside Chief Justice Tindal, who tried Courvoisier, and that Baron Parketold him he had, for reasons of his own, most carefully watched everyword that you uttered, and assured Lord Denman that your address wasperfectly unexceptionable, and that you made no such statements as weresubsequently attributed to you. 

Lord Denman told me that I was at liberty to mention this fact to anyone; and expressed in noble and generous terms his concern at theexistence of such serious and unfounded imputations upon your characterand honor. 

Both Lord Denman and Baron Parke are men of as nice a sense of honor andas high a degree of consciousness as it is possible to conceive; and Ithink the testimony of two such distinguished judges ought to bepublicly known, to extinguish every kind of suspicion on the subject. 

I write this letter to you spontaneously, and, hoping that you willforgive the earnestness with which I entreat you to act upon mysuggestion, believe me ever yours sincerely, SAMUEL WARREN. MR. COMMISSIONER PHILLIPS. 

 39 GORDON SQUARE, Nov. 20. 

MY DEAR WARREN, --Your truly kind letter induces me to break thecontemptuous silence, with which for nine years I have treated thecalumnies, to which you allude. I am the more induced to this by therepresentations of some valued friends, that many honorable minds beginto believe the slander because of its repetition without receiving acontradiction. It is with disgust and disdain, however, that even thussolicited I stoop to notice inventions too abominable, I had hoped, forany honest man to have believed. The conduct of Lord Denman is in everyrespect characteristic of his noble nature. Too just to condemn withoutproof, he investigates the facts, and defends the innocent. Hisdeliberate opinion is valuable indeed, because proceeding from one whois invaluable himself. My judicial appointments by the noblemen youmention would have entailed on them a fearful responsibility, had therebeen any truth in the accusations of which they must have beencognizant. I had no interest whatever with either of these chancellors, save that derived from their knowledge of my character, and theirobservation of my conduct. It is now five-and-twenty years ago sinceLord Lyndhurst, when I had no friend here, voluntarily tendered me hisfavor and his influence, and his kindness to me remains to this dayunabated. Of Lord Brougham, my ever warm and devoted friend, I forbearto speak, because words cannot express my affection or my gratitude. Hisfriendship has soothed some affliction and enhanced every pleasure, andwhile memory lasts will remain the proudest of its recollections and themost precious of its treasures. This is no vain-glorious vaunting. Theunabated kindness of three of the greatest men, who ever adorned theBench, ought, in itself, to be a sufficient answer to my traducers. Suchmen as these would scarcely have given their countenance to one, who, ifwhat were said of him were true, deserved their condemnation. I am notdisposed, however, though I might be well warranted in doing so, toshelter myself under the authority of names, no matter how illustrious. I give to each and all of these charges a solemn and indignantcontradiction, and I will now proceed to their refutation. The chargesare threefold, and I shall discuss them _seriatim_. 

First, I am accused of having retained Courvoisier's brief after havingheard his confession. It is right that I should relate the manner ofthat confession, as it has been somewhat misapprehended. Many suppose itwas made to me alone, and made in the prison. I never was in the prisonsince I was called to the Bar, and but once before, being invited to seeit by the then sheriffs. So strict is this rule, that the late Mr. Fauntleroy solicited a consultation there in vain with his other counseland myself. It was on the second morning of the trial, just before thejudges entered, that Courvoisier, standing publicly in front of thedock, solicited an interview with his counsel. My excellent friend andcolleague, Mr. Clarkson, and myself immediately approached him. I beg ofyou to mark the presence of Mr. Clarkson, as it will become verymaterial presently. Up to this morning I believed most firmly in hisinnocence, and so did many others as well as myself. "I have sent foryou, gentlemen, " said he, "to tell you I committed the murder!" When Icould speak, which was not immediately, I said, "Of course then you aregoing to plead guilty?"--"No, sir, " was the reply, "I expect you todefend me to the utmost. " We returned to our seats. My position at thismoment 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 toldmy colleague. He strongly and urgently remonstrated against it, but invain. At last he suggested our obtaining the opinion of the learnedjudge, who was not trying the cause, upon what he considered to be theprofessional etiquette under circumstances so embarrassing. In this Ivery willingly acquiesced. We obtained an interview, and Mr. BaronParke requested to know distinctly whether the prisoner insisted on mydefending 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 thereforeretained the brief, and I contend for it, that every argument I used wasa fair commentary on the evidence, though undoubtedly as strong as Icould make them. I believe there is no difference of opinion now in theprofession that this course was right. It was not until after eighthours' public exertion before the jury that the prisoner confessed; andto have abandoned him then would have been virtually surrendering him todeath. This is my answer to the first charge. 

I am accused, secondly, of having "appealed to Heaven as to my belief inCourvoisier's innocence, " after he had made me acquainted with hisguilt. A grievous accusation! But it is false as it is foul, and carriesits own refutation on its face. It is with difficulty I restrain theexpression of my indignation; but respect for my station forbids me tocharacterize this slander as it deserves. It will not bear one moment'sanalysis. It is an utter impossibility under the circumstances. What!appeal to Heaven for its testimony to a lie, and not expect to beanswered by its lightning? What! make such an appeal, conscious that anhonorable colleague sat beside me, whose valued friendship I must haveforever forfeited? But above all and beyond all, and too monstrous forbelief, would I have dared to utter that falsehood in the very presenceof 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 uprightmagistrate, 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 soto outrage his nature and my own conscience, he would have started fromhis seat and withered me with a glance. No, Warren, I never made such anappeal; it is a malignant untruth, and sure I am, had the person whocoined it but known what had previously occurred, he never would haveuttered from his libel mint so very clumsy and self-proclaiming acounterfeit. So far for the verisimilitude of this-charge. But I willnot rest either on improbability, or argument, or even denial. I have abetter and a conclusive answer. The trial terminated on Saturdayevening. 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, beforeall assembled, after reading the paragraph aloud, I thus addressed thejudges:--"I take the very first opportunity which offers, my lords, ofmost respectfully inquiring of you whether I ever used any suchexpression?"--"You certainly did not, Phillips, " was the reply of thelate lamented Lord Chief Justice, "and I will be your vouchee wheneveryou choose to call me, "--"And I, " said Mr. Baron Parke, happily stillspared 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, whenyou sat down, 'Brother Tindal, did you observe how carefully Phillipsabstained from giving any personal opinion in the case?' To this thelearned Chief Justice instantly assented. " This is my answer to thesecond charge. 

Thirdly, and lastly, I am accused of having endeavored to cast upon thefemale servants the guilt, which I knew was attributable to Courvoisier. You will observe, of course, that the gravamen of this consists in myhaving done so after the confession. The answer to this is obvious. Courvoisier did not confess till Friday: the cross-examination tookplace the day before, and so far, therefore, the accusation is disposedof. But it may be said I did so in my address to the jury. Beforerefuting this let me observe upon the disheartening circumstances underwhich that address was delivered. At the close of the, to me, mostwretched day on which the confession was made, the prisoner sent me thisastounding message by his solicitor: "Tell Mr. Phillips, my counsel, that I consider he has my life in his hands. " My answer was, that as hemust be present himself, he would have an opportunity of seeing whetherI deserted him or not. I was to speak on the next morning. But what anight preceded it! Fevered and horror-stricken, I could find no repose. If I slumbered for a moment, the murderer's form arose before me, scaring sleep away, now muttering his awful crime, and now shrieking tome 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 proveit. I have since pondered much upon this subject, and I am satisfiedthat my original impression was erroneous. I had no right to throw up mybrief, and turn traitor to the wretch, wretch though he was, who hadconfided in me. The counsel for a prisoner has no option. The moment heaccepts his brief, every faculty he possesses becomes his client'sproperty. It is an implied contract between him and the man who trustshim. Out of the profession this may be a moot point, but it was assertedand acted on by two illustrious advocates of our own day, even to theconfronting of a king, and, to the regal honor be it spoken, thesedauntless men were afterwards promoted to the highest dignities. 

You will ask me here whether I contend on this principle for the rightof doing that of which I am accused, namely, casting the guilt upon theinnocent? I do no such thing; and I deny the imputation altogether. Youwill still bear in mind what I have said before, that I scarcely couldhave dared to do so under the eye of Baron Parke and in the presence ofMr. Clarkson. To act so, I must have been insane. But to set this matterat rest, I have referred to my address as reported in the "Times"--ajournal the fidelity of whose reports was never questioned. You will beamazed 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 Iwas, I might do any injustice in the course of a lengthened speech, byeven an ambiguous expression, I find these words reported in the"Times, "--"Mr. Phillips said the prosecutors were bound to prove theguilt of the prisoner, not by inference, by reasoning, by such subtileand 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 jurynot to suppose for a moment, in the course of the narrative with whichhe must trouble them, that he meant to cast the crime upon either of thefemale servants. It was not at all necessary to his case to do so. Itwas neither his interest, his duty, nor his policy, to do so. God forbidthat any breath of his should send tainted into the world personsdepending for their subsistence on their character. " Surely this oughtto be sufficient. I cannot allude, however, to this giant of the press, whose might can make or unmake a reputation, without gratefullyacknowledging 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, fullycorroborated the "Times, " if, indeed, such a journal neededcorroboration. The "Chronicle" runs thus:--"In the first place, says myfriend Mr. Adolphus, and says his witness Sarah Mancer--and here I begto do an act of justice, and to assure you that I do not for a momentmean to suggest in the whole course of my narrative that this crime mayhave been committed by the female servants of the deceased nobleman. ""The Morning Post" runs thus: "Mr. Adolphus called a witness, SarahMancer. But let me do myself justice, and others justice, by nowstating, that in the whole course of my narrative with which I musttrouble you, I beg you would not suppose that I am in the least degreeseeking to cast the crime upon any of the witnesses. God forbid that anybreath of mine should send persons depending on the public forsubsistence into the world with a tainted character. " I find the"Morning Herald" reporting me as follows: "Mr. Adolphus called a witnessnamed Sarah Mancer. But let me do myself justice and others justice bynow stating that in the whole course of the narrative with which I musttrouble you, I must beg that you will not suppose that I am in the leastdegree seeking to cast blame upon any of the witnesses. " Can anydisclaimer be more complete? And yet, in the face of this, for ninesuccessive years has this most unscrupulous of slanderers reiterated hischarge. Not quite three weeks ago he recurs to it in these terms: "Howmuch worse was the attempt of Mr. Phillips to throw the suspicion of themurder of Lord William Russell on the innocent female servants, in orderto procure the acquittal of his client Courvoisier, of whose guilt hewas cognizant?" I have read with care the whole report in the "Times" ofthat three hours' speech, and I do not find a passage to give thischarge countenance. But surely, surely, in the agitated state in which Iwas, had even an ambiguous expression dropped from me, the above broaddisclaimer would have been its efficient antidote. 

Such is my answer to the last charge; and, come what will, it shall bemy final answer. No envenomed reiteration, no popular delusion, noimportunity of friendship, shall ever draw from me another syllable. Ishall remain in future, as I have been heretofore, _auditor tantum_. Youknow well how strenuously and how repeatedly you pressed me to myvindication, especially after Lord Denman's important conversation withyou, and you know the stern disdain with which I dissented. The _mensconscia recti_, a thorough contempt for my traducer, the belief thattruth would in the end prevail, and a self-humiliation at stooping to adefence, amply sustained me amid the almost national outcry whichcalumny had created. Relying doubtless upon this, month after month, fornine successive years, my accuser has iterated and reiterated his libelsin terms so gross, so vulgar, and so disgraceful, that my most valuedfriends thought it my duty to them publicly to refute them. To thatconsideration, and to that alone, I have yielded; in deference totheirs, relinquishing my own opinions. If they suppose, however, thatslander, because answered, will be silenced, they will find themselvesmistaken. 

 Destroy the web of sophistry--in vain-- The creature's at his dirty work again. 

No, no, my dear friend, invention is a libeller's exhaustless capital, and refutation but supplies the food on which he lives. He may, however, pursue his vocation undisturbed by me. His libels and my answer are nowbefore the world, and I leave them to the judgment of all honorable men. 

 C. PHILLIPS. 

No. II. 

COURSE OF LEGAL STUDY[60]

_Non multa sed multum_, is the cardinal maxim by which the student of lawshould be governed in his readings; at the commencement of his studies--inthe office of his legal preceptor, REPETITION--REPETITION--REPETITION. Blackstone and Kent, should be read--and read again and again. Theseelementary works, with some others of an immediately practicalcast--Tidd's Practice, Stephen's Pleading, Greenleaf's Evidence, Leigh'sNisi Prius, Mitford's Equity Pleading--well conned, make up the bestpart of office reading. Of course the Acts of Assembly should be goneover and over again. I do not say that this is all. The plan of reading, which I am about to recommend, may be begun in the office. Much willdepend upon, what may be termed, the mental temperament of the studenthimself, which no one but the immediate preceptor can observe; and hewill be governed accordingly in the selection of works to be placed inhis hands. No lawyer does his duty, who does not frequently examine hisstudent, not merely as a necessary means of exciting him to attention, and application; but in order to acquire such an acquaintance with thecharacter of his pupil's mind--its quickness or slowness--itsconcentrativeness or discursiveness--as to be able to form a judgmentwhether he requires the curb or the spur. It is an inestimable advantageto a young man to have a judicious and experienced friend watchinganxiously his progress, and able to direct him, when, if left tohimself, he must wander in darkness and danger. "There be two things, "says Lord Coke, "to be avoided by him as enemies to learning, _præpostera lectio_ and _præpropera praxis_. " Co. Litt. 70 b. 

I prefer presenting a certain order of subjects to be pursued;observing, however, that it may be somewhat irksome to pursue any onebranch for too long a period unvaried. When that is found to be thecase, the last five heads may be adopted as collateral studies, andpursued simultaneously with the first three. 

These heads or branches are--1. Real Estate and Equity. 2. Practice, Pleading, and Evidence. 3. Crime and Forfeitures. 4. Natural andInternational law. 5. Constitutional Law. 6. Civil Law. 7. Persons andPersonal Property. 8. The Law of Executors and Administrators. 

I. REAL ESTATE AND EQUITY. 

As introductory to this head, Lord Hale's History of the Common Law maybe perused with advantage. It was perhaps a mere sketch, intended to beafterwards filled up and completed. Still, however, it is a work ofauthority, as indeed is everything which proceeded from the pen of itsdistinguished author. He is correct and accurate to a remarkable degree. Reeves' History of the English Law is a full and comprehensive historyof the English Law, accurate and judicious as well as full. LordMansfield is said to have advised its author in regard to its plan andexecution. In this work the student is presented with all that isnecessary that he should know of the earliest law-books, Bracton, Glanville, and Fleta, carefully collected and presented. The history ofthe law is separately traced under the reign of each king, and it may beof advantage to read at the same time some good history or histories ofEngland parallel with the work. "Reeves' History of the English Law, "says Chancellor Kent, "contains the best account that we have of theprogress of the law, from the time of the Saxons to the reign ofElizabeth. It covers the whole ground of the law included in the oldabridgments, and it is a work deserving of the highest commendation. Iam at a loss which most to admire, the full and accurate learning, whichit contains, or the neat, perspicuous, and sometimes elegant style, inwhich that learning is conveyed. " 1 Comm. 508. 

Dalrymple's Essay towards a general History of Feudal Property in GreatBritain, is a brief but learned and philosophical treatise, which may befollowed by Sullivan's Lectures on Feudal Law, a work copious in detailand exhibiting ably, among other topics, the influence of the feudalsystem upon the Modern Law of Tenures. Sir Martin Wright's Introductionto the Law of Tenures is one of the most accurate and profound of theessays on this topic; and is worthy of the most attentive study. Craigde Feudis was thought by Lord Mansfield much preferable to any judicialwork which England had then produced. With these legal treatises on thefeudal system may be read with great advantage, simultaneously, Robertson's History of Charles V, and Hallam's History of the MiddleAges. 

Sir Henry Finch's Law, or Nomotechnia, as he entitled it, may be takenup in this connection. It is said that until the publication ofBlackstone's Commentaries, it was regarded as the best elementary bookto be placed in the hands of law students; and we have the authority ofSir William Blackstone for saying that his method was greatly superiorto that in all the treatises that were then extant: Blackstone'sAnalysis, Preface, 6. "His text, " says Chancellor Kent, "was weighty, concise, and nervous, and his illustrations apposite, clear, andauthentic;" though he adds, "But the abolition of the feudal tenures andthe disuse of real actions, have rendered half of his work obsolete, " 1Comm. 509; an objection, in the view we take of legal education, whichshould rather recommend the work than otherwise. 

At the same time with Finch take Doctor and Student by St. Germain--alittle book which is replete with sound law, and has always been citedwith approbation as an authority. 

The Prefaces to the several volumes of Lord Coke's Reports may be readnow with great advantage. They contain much interesting information, andstrongly impregnated as they are with Lord Coke's abundant learning andlove of the law as a science and profession, they form an admirableintroduction to The First Institute, or Lord Coke's Commentary uponLittleton's Tenures. It would be advisable, I think, to read first inorder the sections of Littleton's Tenures, the original treatise uponwhich The Institute was a commentary. After that, no time or painsshould be spared to master completely The First Institute. If the coursenow prescribed has been followed, the student will not require to bereminded, that even those parts, which seem to relate to obsolete headsof 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 thestudent will not in his professional career, find on more than oneoccasion eminently useful. " There may be some extravagance in thisassertion; but we may nevertheless agree with Mr. Ritso that "there isno knowledge of this kind, which may not, sooner or later, be in freshdemand; there is no length of time or change of circumstances, that canentirely defeat its operation or destroy its intrinsic authority. Likethe old specie withdrawn from circulation upon the introduction of anew coinage, it has always its inherent value; the ore is still sterlingand may be moulded into modern currency. " The opinions of Americanlawyers confirm this conclusion. It is well known that C. J. Parsons wasdistinguished for his familiarity with the pages of The Institute. Itwas Mr. Pinkney's favorite law book; and "his arguments at the Bar, "says his biographer, Mr. Wheaton, "abounded with perpetual recurrencesto the principles and analysis drawn from this rich mine of common lawlearning. " Mr. Hoffman, in his Course of Legal Study, has also borne histestimony to its importance to the American practitioner. ChancellorKent seems, as I have intimated in the note, to lean rather against Cokeupon Littleton, as an Institute of Legal Education, although heacknowledges its value and authority as a book of reference. 

It appears to me that after Coke, Preston's Elementary Treatise onEstates may be read with advantage. He is perhaps unnecessarily diffuseand tautological; but he enters largely into the reasons of the abstrusedoctrines of which he treats, and his work is calculated to lead thestudent to inquire more earnestly into the philosophy of the science. Fearne's Essay on the Learning of Contingent Remainders, should then bewell studied. If no other book be read over a second time, it must notbe omitted as to this. This volume is occupied in the discussion ofpoints of great difficulty and abstruseness; yet the style is remarkablefor clearness and perspicuity, and the reasoning is logical andirresistible. A taste or otherwise, for this book, will test thestudent's real progress. After Fearne, take up Sheppard's Touchstone ofCommon Assurances--a work generally supposed to have been written by Mr. Justice Doddridge, and not by William Sheppard, whose name it bears. Itis a most valuable book, one of the most esteemed and authoritative ofthe old treatises. There is an edition by Mr. Preston, but I do notrecommend it. Had he annotated in the common way, his labors andreferences would no doubt have increased the value of the book; but hehas taken liberties with the text, --subdividing it, occasionallychanging the phraseology, and inserting matter of his own: a course ofproceeding in regard to any work, except a digest or dictionary, towhich I cannot be reconciled. The Touchstone may be followed by Prestonon Abstracts of Title, and Preston's Treatise on Conveyancing. 

I think that at this period, as a necessary introduction to thesucceeding studies, some works on Equity Jurisprudence should be takenin hand; as the Treatise on Equity of which Henry Ballow is the reputedauthor. It is the text of Fonblanque's Equity. It had better be read byitself. Disquisitional notes of great length only confuse and confoundthe student; and Mr. Marvin has well said that Fonblanque's Equity"finally expired under the weight of its own notes. " To this addJeremy's Treatise on Equity, and Story's Commentaries on EquityJurisprudence. The student may then read with advantage, Powell onMortgages, with Coventry's Notes. It is to be lamented that Mr. Coventry did not prepare an original work, instead of overwhelming thetext of Powell with his learned and valuable labors. Chancellor Kent hasremarked, that between the English and American editors it is "somewhatdifficult for the reader to know, without considerable difficulty, uponwhat ground he stands. " Like the treatise on Equity, it has been nearlychoked to death in the embraces of its annotators. Bacon's Reading uponthe Statute of Uses, is a very profound treatise on that subject, thoughevidently left by its great author in an unfinished state. Sanders onUses and Trusts, is a very comprehensive and learned work, and thesubject, which may be styled the Metaphysics of the Law, requires closeattention. Hill on Trustees, is a practical treatise, which may here beread with advantage, as also Lewis on Perpetuities. Sugden on Powers, has been said to be second to no elementary law book. It is a masterlyelucidation of the subtle doctrines of the law on the subject of Powers, and is held in the highest estimation. It will perhaps be betterappreciated and understood, if with it, or after it, is taken upChance's Treatise on Powers, --a work more diffuse than Mr. Sugden's, andwhich examines, controverts, and discusses at large many of hispositions. Sugden on Vendors and Purchasers may then follow. 

The titles on Leases and Terms for Years, and Rent, in Bacon'sAbridgment, should be studied. These were the works of Chief BaronGilbert. After this, Woodfall on Landlord and Tenant. 

Roscoe's Treatise on the Law of Actions relating to Real Property, maybe read as a convenient introduction to Cruise on Fines and Recoveries, and Pigott on Common Recoveries. 

To these, in conclusion of this, by far the most important andfundamental branch of legal studies, may be added, Powell's Essay on theLearning of Devises, and Jarman on Wills. 

It will be remarked, that I have not set down in order, any ReportBooks; it is not that I undervalue that kind of study. It appears to methat in his regular reading, the student should constantly resort to andexamine the principal cases referred to and commented upon by hisauthors. In this way, he will read them more intelligently, and theywill be better impressed on his memory. Some reports may be read throughcontinuously; such are Plowden, Hobart, Vernon, and I certainly think, Johnson's Chancery Reports should be thus read. Smith's Leading Cases isan excellent reading-book of this kind. The student of Pennsylvania Lawwill do well not to omit Binney's Reports. But I assign no particularplace to this kind of study, because I think it may be taken up and laidaside at intervals, according to the bent of the student's inclination. When, in any particular part of his course, he finds his regular readingdrags heavily--he has become fagged and tired of a particularsubject--let him turn aside for a week or two, to some approved andstandard Report Book; it will be useful reading, and he will be able toreturn refreshed to his proper course. 

It would extend this Appendix too much, if I were to go over theremaining parts of the prescribed plan, with the same particularity as Ihave this first and most important branch. It will be sufficient toindicate merely the books, and the order in which they may be mostprofitably read, under each division. 

II. PRACTICE, PLEADING, AND EVIDENCE. 

The Introduction to Crompton's Practice gives a full account of thejurisdiction of the courts, and the steps by which it was arrived at. This book is sometimes called Sellon's Practice, having been arranged byMr. Sellon. The fourth part of The Institutes of Lord Coke. Tidd'sPractice. Stephen on Pleading. Saunders' Reports, with Notes byWilliams. Broom's Parties to Actions. Greenleaf on Evidence. Selwyn'sNisi Prius. Leigh's Nisi Prius. Mitford's Pleading in Equity. Story'sEquity Pleading. Barton's Historical Treatise of a Suit in Equity. Newland's Chancery Practice. Gresley on Evidence in Equity. 

III. CRIMES AND FORFEITURES. 

Hale's History of the Pleas of the Crown. Foster's Crown Law. Yorke'sConsiderations on the Law of Forfeiture for High Treason. The thirdpart of The Institutes of Lord Coke. Russell on Crimes and Misdemeanors. Chitty on Criminal Law. 

IV. NATURAL AND INTERNATIONAL LAW. 

Burlamaqui's Natural and Political Law. Grotius de Jure Belli et Pacis. Rutherford's Institutes. Vattel's Law of Nations. Bynkershoek QuestionesPublici 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 UnitedStates. 

V. CONSTITUTIONAL LAW. 

The second part of Lord Coke's Institutes. Hallam's ConstitutionalHistory of England. Wynne's Eunomus. De Lolme on the EnglishConstitution, with Stephens' Introduction and Notes. The Federalist. Rawle on the Constitution. Story on the Constitution. All the casesdecided in the Supreme Court of the United States, on constitutionalquestions, to be read methodically, as far as possible. 

VI. CIVIL LAW. 

I consider some study of this head as a necessary introduction to athorough course on the subjects of Persons and Personal Property, andthe topic, which is so important in the United States, of the Conflictof Laws. 

Butler's Horæ Juridicæ. Gibbon's History of the Decline and Fall, chap. 44. Justinian's Institutes. Savigny's Traité de Droit Romain. Savigny'sHistoire du Droit Romain au Moyen Age. Taylor's Elements of the CivilLaw. Mackeldy's Compendium. Colquhoun's Summary of the Roman Civil Law. Domat's Civil Law. 

VII. PERSONS AND PERSONAL PROPERTY. 

Reeves on the Domestic Relations. Bingham's Law of Infancy andCoverture. Roper on Husband and Wife. Angel and Ames on Corporations. Les [OE]uvres de Pothier. Smith on Contracts. Story on Bailments. Joneson Bailments. Story on Partnership. Byles on Bills. Story on PromissoryNotes. Abbott on Shipping. Duer on Insurance. Emerigon Traité desAssurances. Boulay-Paty Cour de Droit Commercial. Story on the Conflictof Laws. 

VIII. EXECUTORS AND ADMINISTRATORS. 

Roper on Legacies. Toller on Executors. Williams on Executors. The Law'sDisposal, by Lovelass. 

I believe that the course that I have thus sketched, if steadily andlaboriously pursued, will make a very thorough lawyer. There iscertainly nothing in the plan beyond the reach of any young man, withordinary industry and application, in a period of from five to sevenyears, with a considerable allowance for the interruptions of businessand relaxation. One thing is certain, --there is no royal road to Law, any more than there is to Geometry. The fruits of study cannot begathered without its toil. It seems the order of Providence that thereshould 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 ofhis own character, as well as of his own fortune. "The profession of thelaw, " says Mr. Ritso, "is that, of all others, which imposes the mostextensive obligations upon those who have had the confidence to makechoice of it; and indeed there is no other path of life in which theunassumed superiority of individual merit is more conspicuouslydistinguished according to the respective abilities of the parties. Thelaurels that grow within these precincts are to be gathered with novulgar hands; they resist the unhallowed grasp, like the golden branchwith which the hero of the Æneid threw open the adamantine gates thatled to Elysium. "

No. III. 

THE ENGLISH BAR. 

There are three orders of men at the English Bar: 1. Attorneys, orSolicitors in Chancery. 2. Barristers; and 3. Serjeants. 

1. _Attorneys and Solicitors. _--Acts of Parliament have been made forthe regulation of this class. The Stat. 6 & 7 Vict. C. 73, consolidatingand amending several of the laws relating to attorneys and solicitors, prescribes the conditions of admission as an attorney, the time and modeof their service under articles; and the oaths to be administered tothem; and authorizes the Judges of the courts of the common law, and theMaster of the Rolls to appoint examiners to examine the fitness andcapacity of all persons applying to be admitted as attorneys orsolicitors; and the certificate, either of the common law or equityexaminers, will be sufficient to entitle a person so examined toadmission in all the courts, examination by both not being necessary. 3Stewart's Blackst. 29. 

2. _Barristers. _--The proper legal denomination of this class is_apprentices_, being the first degree in the law conferred by the innsof court. Spelman defines apprentice, _tyro_, _discipulus_, _novitius inaliqua facultate_. This was probably the meaning of the term primarily;but as early as the reign of Edward I, it was employed to denotecounsel below the state and degree of serjeant at law; one degreecorresponding to that of bachelor, and the other to that of doctor, inthe universities (Pearce's History of the Inns of Court, 28). Lord Cokeinforms us, however, that this degree was anciently preferred to that ofserjeant (2 Inst. 214). They were termed _apprenticii ad legem_, or _adbarras_; and hence arose the cognomen of _barristers_. A barrister musthave kept twelve terms, _i. E. _, been three years a member of an inn ofcourt, before he can be called to the Bar. After a member of an inn ofcourt has kept twelve terms, he may, without being called, obtainpermission to practice _under the Bar_. This class of practitioners arecalled _special pleaders_ or _equity draftsmen_ (according as theyprepare pleadings in the common law or equity courts), or_conveyancers_, who prepare deeds. 3 Stewart's Blackst. 26, note. Thosewho are regularly called, however, may take upon them the causes of allsuitors. Such of the barristers as have a patent of precedence, asking's counsel, sit within the Bar, with the serjeants; all others arecalled _utter_ or _outer barristers_. 

3. _Serjeants at law. _--_Servientes ad legem_, or serjeant-countors. Thecoif or covering to the head worn by this order has also given adenomination to them. There exists some differences of opinion amongjudicial antiquarians as to the origin of the coif. It is supposed bysome to have been invented about the time of Henry III, for the purposeof concealing the clerical tonsure, and thus disguising those renegadeclerks, who were desirous of eluding the canon, restraining the clergyfrom practising as counsel in the secular courts. Hortensius, 349. Byothers it is referred to a much earlier period, when the practice in thehigher courts was monopolized by the clergy, and those who were not inorders invented the coif to conceal the want of clerical tonsure. 1Campbell's Lives of the Chief Justices, 85, note. There are, indeed, several circumstances to remind us of the ecclesiastical origin of ourprofession in England. The terms--on the festival of St. Hilary (Bishopof Poictiers, in France, who flourished in the fourth century); Easter;the Holy Trinity; and of the blessed Michael, the Archangel;--the habitsof the judges, their appearance in court in scarlet, purple, or black, at particular seasons--the use of the word _brother_ to denote serjeant, and _laity_ to distinguish the people at large from the profession--thecoif 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 suchcircumstances raise a strong presumption that the legal university wasfounded before the time of the enactment of the canons in the reign ofKing Henry III, compelling the clergy to abandon the practice of the lawin the secular courts (Pearce's History, 22). _Nulles clericus nisicausidicus_, was the character given of the clergy, soon after theConquest, by William of Malmsbury. The judges, therefore, were usuallycreated out of the sacred order, as was likewise the case among theNormans; and all the inferior offices were supplied by the lowerclergy, which has occasioned their successors to be styled _clerks_ tothis day (1 Bl. Com. 17). The livings in the gift of the Chancellor wereoriginally intended as a provision for them, and an order was made inParliament, 4 Edw. III, that "the Chancellor should give the livings inhis gift, rated at twenty marks and under, to the King's clerks inChancery, the Exchequer, and the two Benches, according to usage, and tonone others. " 1 Campbell's Lives of the Chancellors, 170, note. 

In the time of Fortescue, sixteen years' continuance in the study of thelaw was the period of time considered a necessary qualification incandidates for the coif. There seems, however, never to have been aregulation to that effect; and it is certain that persons have oftenbeen advanced to this degree before that time. By the common law no onecan be appointed a judge of the superior courts, who has not attainedthe degree of the coif; which degree can only be conferred on abarrister of one of the four inns of court. As soon as any member of aninn of court is raised by royal writ to the state, degree, and dignityof a serjeant-at-law, he ceases to be a member of the society. Heremoves to a new hall, and appears for the future in the inn of court asa guest (Pearce, 52). 

The most valuable privilege formerly enjoyed by the serjeants (who, besides the judges, were limited to fifteen in number), was the monopolyof the practice in the Court of Common Pleas. A bill was introduced intoParliament in the year 1755; for the purpose of destroying thismonopoly; but it did not pass. In 1834, a warrant under the sign manualof the Crown was directed to the Judges of the Common Pleas, commandingthem to open that court to the Bar at large, on the ground that it wouldtend to the general dispatch of business. This order was received, andthe court acted accordingly. But in 1839 the matter was brought beforethe court by the serjeants, when it was decided that the order wasillegal; Tindal, C. J. , declaring that, "from time immemorial, theserjeants have enjoyed the exclusive privilege of practising, pleading;and audience in the Court of Common Pleas. Immemorial enjoyment is themost solid of all titles; and we think the warrant of the Crown can nomore deprive the serjeant, who holds an immemorial office, of thebenefits and privileges which belong to it, than it could alter theadministration of the law within the court itself. " (10 Bingh. 571; 6Bingh. N. C. 187, 232, 235. ) However, the Statute 9 & 10 Vict. C. 54, has since extended to all barristers the privileges of serjeants in theCourt of Common Pleas. 

FOOTNOTES:

[1] This oath seems first to have been prescribed by the Act ofAssembly, passed August 22d, 1752: "An act for regulating andestablishing fees. " (1 Smith's Laws, 218. ) It has been copied into therevised Act of 14th April, 1834, s. 69 (Pamphlet Laws, 354), with theaddition of the clause to "support the Constitution of the UnitedStates, and the Constitution of this Commonwealth. " In England, by theStat. 4 Henry IV, c. 18 (A. D. 1402), it was provided, "that allattorneys shall be examined by the Justices, and by their discretion, their names put in the roll, and they that be good and virtuous, and ofgood fame, shall be received, and sworn well and truly to serve in theiroffices, and especially that they make no suit in a foreign country. "The present oath or affirmation is, that he "will truly and honestlydemean himself in the practice of an attorney, according to the best ofhis 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 atlarge in 2 Inst. 213; and in the valuable old book, "The Mirror ofJustices, " chap. 2, sec. 5, it is said that "every countor is chargeableby the oath, that he shall do no wrong nor falsity, contrary to hisknowledge, but shall plead for his client the best he can, according tohis understanding. "

[2] Hurst's case, 1 Levins, 72; 1 Sid. 94, 151; Raym. 56, 94; 1 Keb. 349, 354, 387. 

[3] See Austin's case, 5 Rawle, 203. "An attorney at law, " says C. J. Gibson, "is an officer of the court. The terms of the oath, exacted ofhim at his admission to the bar, prove him to be so;" "you shall behaveyourself in your _office_ of attorney, " &c. Again: it is declared in theConstitution, Article 1st, sec. 18 (Art. 1, sec. 19, of the amendedConstitution of 1838), that "no member of Congress, or other personholding any _office_ (except _attorney at law_, and in the militia), shall be a member of either House, " &c. , which is a directconstitutional recognition. Prior to the Act of 14th April, 1834, whichexpressly required from them an oath to support the Constitution of theUnited States and the Constitution of the Commonwealth of Pennsylvania, attorneys at law were invariably held to be within the provisions ofArt. 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 constitutionsrespectively. In Wood's case (1 Hopkins, 6), solicitors in chancery wereheld to be officers, within the meaning of a similar clause in theConstitution of New York. "The admission of an attorney, solicitor, orcounsellor, " says the opinion in that case, "is a general appointment toconduct causes before the courts: this station, thus conferred by publicauthority, has its peculiar powers, privileges, and duties, and thusbecomes an office in the administration of justice. " Leigh's case (1Munford, 468), in which it was held, that attorneys are not officers, within the meaning of the statute of Virginia, requiring all personsholding any office, or place, under the commonwealth, to take an oathagainst duelling, does not perhaps conflict with this view. The case ofByrne's Admr's _v. _ Stewart's Admr's (3 Desaus. 478), may, however, befound upon examination somewhat at variance--not the decision itself, but the views expressed by Chancellor Watres in his opinion. The casesimply decided what would seem unquestionable, that the legislature hada right to prohibit any public officer, judicial or otherwise, frompractising as an attorney or solicitor. The Chancellor said, "He (asolicitor) can he considered in no other light than that of a privateagent for the citizens of the country, who may employ him to do theirlegal business in the courts; and although the law requires of himcertain qualifications, and he receives a license from the judges, yethis office is no more a public one, than would be any other professionor trade, which the legislature might choose to subject to similarregulations, and which is the practice in many other countries. Itcannot be doubted, that a man's trade or profession is his property; andif a law should be passed avowedly for the purpose of restraining anymember of this bar, who was not a public officer, from exercising hisprofession, I should declare such law void. " This is to assume highground; but the idea that a man's profession or trade cannot beconstitutionally interfered with by legislative enactments, seemsscarcely tenable, and especially, so far as the profession of the law isconcerned, in view of the absolute power with which every court isclothed, both as to the admission of their attorneys, and forejudging orstriking them from the roll. Act of 14th April, 1834, s. 73 (PamphletLaws, 354). Courts of record and of general jurisdiction, are vestedwith exclusive power to regulate the conduct of their own officers, andin this respect their decisions are put on the same footing with thatnumerous class of cases, which is wisely confided to the legaldiscretion and judgment of the court, having jurisdiction over thesubject-matter. Commonwealth _v. _ The Judges, 5 Watts & Serg. 272; _Exparte_ Burr, 9 Wheat. 531; _Ex parte_ Brown, 1 Howard (Miss. ) Rep. 306;Perry _v. _ State, 3 Iowa, 550; In the matter of Wills, 1 Mann, 392. "Thepower is one which ought to be exercised with great caution, but whichis, we think, incidental to all courts, and necessary for thepreservation of decorum and for the respectability of the profession. "Marshall C. J. 9 Wheat. 531. 

[4] Per Gibson, C. J. , in Austin's case, 5 Rawle, 204. 

[5] The exact weight of one hundred silver dollars of the old coinage is85. 9375 ounces; of the new coinage, 80 ounces. 

[6] _Ex parte_ Carter, 1 Philada. Rep. 507. Blaike's Lessee _v. _Chambers, 1 Serg. & Rawle, 169. 

[7] Court and juries have their respective spheres assigned to them, within which each is to act and move, without encroaching upon thejurisdiction or province of the other. In order, then, that jurors aswell as others may know that the direction and decision of the court, onany question of law arising in the course of the trial of an issue offact, is not to be disregarded, and that a verdict given against suchdirection, whatever it may be, can never avail anything, unless it be tooccasion additional delay, trouble, and expense to the parties, as alsoto the public, the course of the court is to set the verdict aside, andto order a new trial. And a court, from whose decisions on questions oflaw, an appeal lies, by writ of error or otherwise, ought never todepart from this course; otherwise the party against whom the verdict isgiven loses the benefit of such appeal, and of having the questiondecided by the Appellate Court, which would be a most unjust and illegaldeprivation of his right. Per Kennedy, J. , in Flemming _v. _ Marine Ins. Co. 4 Whart. 67. After two concurring verdicts against the direction ofthe court in point of law, a new trial will still be awarded. Commissioners of Berks County _v. _ Ross, 3 Binn. 520. "Principles themost firmly established might be overturned, because a second jury wereobstinate and rash enough to persevere in the errors of the first, in amatter confessed by all to be properly within the jurisdiction of thecourt; I mean the construction of the law arising from undisputedfacts. " Per Tilghman, C. J. , Ibid. 524. It is not necessary to refer tothe numerous cases, both in the English and American courts, whichaccord with these principles. A judicious selection of the leading onesis to be found in the note to 1 Wharton's Troubat & Haly, 529. The textand the note are confined, of course, to civil cases. 

[8] Burnet's Life of Sir Matthew Hale, 72. 

[9] An attorney is not answerable for every error or mistake; he oughtnot to be liable, in cases of reasonable doubt. Pitt _v. _ Yalden, 4Burrows, 2060. He shall be protected, when he acts with good faith, andto the best of his skill and knowledge. Gilbert _v. _ Williams, 8 Mass. 57. The want of ordinary care and skill in such a person is grossnegligence. Holmes _v. _ Peck, 1 Rhode Island, Rep. 245; Cox _v. _Sullivan, 7 Georgia, 144; Pennington _v. _ Yell, 6 Engl. 212. As betweenthe client and the attorney, the responsibility of the latter is asgreat and as strict here as in any country when want of good faith orattention to the cause is alleged; but in the exercise of thediscretionary power usually confided in this country, and especiallywhen the client resides at a great distance, an attorney ought not to beheld liable where he has acted honestly and in a way he thought was forthe interest of his client. Lynch _v. _ The Commonwealth, 16 Serg. &Rawle, 368; Stakely _v. _ Robison, 10 Casey, 317. When, however, anattorney disobeys the lawful instructions of his client, and a lossensues, for that loss the attorney is responsible. Gilbert _v. _Williams, 8 Mass. 57. If the holder of a note place it in the hands ofan attorney-at-law, with instructions to bring suit upon it, and theattorney, acting under the honest impression that he would best promotethe interests of his client by not bringing suit immediately, omits todo 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 ofdamages is what might have been recovered from the maker of the note, ifsuit had been brought when the note was placed in the hands of theattorney for collection. Cox _v. _ Livingston, 2 Watts. & Serg. 103;Wilcox _v. _ Plummer, 4 Peters, 172. But a client has no right to controlhis attorney in the due and orderly conduct of a suit, and it is hisduty to do what the court would order to be done, though his clientinstruct him otherwise. Anon. , 1 Wendell, 108. 

[10] An attorney is not compelled to appear for any one unless he takeshis fee or backs the warrant. Anon. , 1 Salk. 87. The attorney cannotdetermine the relation himself, to his client's detriment. Love _v. _Hall, 3 Yerger, 408. When a solicitor appointed by a party has acted assuch, he cannot be displaced by the appointment of another, without anorder of the court. Mumford _v. _ Murray, 1 Hopkins, 369. After anattorney has entered his name upon the record, he cannot withdraw itwithout leave of the court; and until so withdrawn the service of acitation upon him in case of appeal is sufficient. United States _v. _Curry, 6 Howard, U. S. Rep. 106. 

[11] A counsel, attorney, or solicitor, will in no case be permitted, even if he should be willing to do so, to divulge any matter which hasbeen communicated to him in professional confidence. This is not hisprivilege, but the privilege of the client, and none but the client canwaive it. Jenkinson _v. _ The State, 5 Blackford, 465; Benjamin _v. _Coventry, 19 Wendell, 353; Parker _v. _ Carter, 4 Munf. 273; Wilson _v. _Troup, 7 Johns. Ch. Rep. 25; Crosby _v. _ Berger, 11 Paige, 377; Bank ofUtica _v. _ Mersereau, 3 Barbour Ch. Rep. 528; Aiken _v. _ Kilburne, 27Maine, 252; Crisler _v. _ Garland, 11 Smedes & Marshall, 136; Chew _v. _The Farmers' Bank of Maryland, 2 Maryland Ch. Decis. 231. It will befound in some of these cases that though the counsel declined to beengaged for the client, yet the facts communicated were heldconfidential; the only exception recognized being where a purpose toperpetrate _in futuro_ a felony or an action _malum in se_ wasdisclosed. Bank of Utica _v. _ Mersereau, 3 Barbour Ch. Rep. 377. InMoore _v. _ Bray, 10 Barr, 519, it was held that communications of theobject, for which an assignment of a mortgage was made, to a counselconcerned for the assignee, were privileged; although no question thenarose as to the object of the assignment, and the counsel considered thecommunication in the light of a casual conversation. "The circle ofprotection, " said Bell, J. , "is not so narrow as to excludecommunications a professional person may deem unimportant to thecontroversy, or the briefest and lightest talk the client may choose toindulge with his legal adviser, provided he regards him as such at themoment. To found a distinction on such a ground would be to measure thesafety of the confiding party by the extent of his intelligence andknowledge, and to expose to betrayal those very anxieties, which promptthose in difficulty, to seek the ear of him in whom they trust in seasonand out of season. "

[12] Burnet's Life of Hale, 1 Hale's Works, 59, 60. "He began, " saysLord Campbell, "with the specious but impracticable rule of neverpleading except on the right side, which would make the counsel todecide without knowing either facts or law, and would put an end to theadministration of justice. " 1 Lord Campbell's Lives of the ChiefJustices, 412. There is the following curious note by Baxter in Burnet'sLife of Hale. "And indeed Judge Hale would tell me that Bishop Usher wasmuch prejudiced against lawyers because the worst causes find theiradvocates; but that he and Mr. Selden had convinced him of the reasonsof it to his satisfaction; and that he did by acquaintance with thembelieve that there were as many honest men among lawyers, proportionably, as among any profession of men in England (not exceptingbishops or divines). " 1 Hale's Works, 106. 

[13] 2 Wynne's Eunomus, 557. 

[14] "Although Serjeants have a monopoly of practice in the CommonPleas, they have a right to practice, and do practice, at this bar; andif we were to assign one of them as counsel, and he were to refuse toact, we should make bold to commit him to prison. " Per C. J. Hale. 2Campbell's Lives of the Chief Justices, 20; citing Freeman, 389; 2 Lev. 129; 3 Keble, 424, 439, 440. 

[15] Let the circumstances against a prisoner be ever so atrocious, itis still the duty of the advocate to see that his client is convictedaccording to those rules and forms which the wisdom of the legislaturehave established, as the best protection of the liberty and security ofthe subject. Professor Christian's note to 4 Blackst. Com. 356. From themoment that any advocate can be permitted to say that he _will_ or will_not_ stand between the crown and the subject arraigned in the courtwhere he daily sits to practise, from that moment the liberties ofEngland are at an end. If the advocate refuses to defend from what _hemay_ think of the charge or of the defence, he assumes the character ofthe judge, nay, he assumes it before the hour of judgment; and inproportion to his rank and reputation, puts the heavy influence ofperhaps a mistaken opinion into the scale against the accused, in whosefavor the benevolent principle of English law makes all presumptions, and which commands the very judge to be his counsel. Lord Erskine, 6Campbell's Lives of the Chancellors, 361. 

[16] Per Gibson, C. J. , in Rush _v. _ Cavenaugh, 2 Barr, 189. 

[17] "There are many who know not how to defend their causes injudgment, and there are many who do, and therefore pleaders arenecessary; so that that which the plaintiffs or actors cannot or knownot how to do by themselves, they may do by their serjeants, attorneys, or friends. " Mirr. Of Justices, ch. 2, sec. V. 

[18] Rush _v. _ Cavenaugh, 2 Barr, 189. If the client in any suitfurnishes his attorney with a plea which the attorney finds to be false, so that he cannot plead it for _the sake of_ his conscience, theattorney may plead in this case, _quod non fuit veraciter informatus_, and in so doing he does his duty. Jenkins, 52. 

[19] Whewell's Elements of Moral and Political Science, vol. 1, p. 257. 

[20] Law Magazine, February, 1850, May, 1854. Law Review, February, 1850. Several articles on the subject, taken from the English press, areto be found in Littell's Living Age, vol. 24, pp. 179, 230, 306. I haveadded, in an appendix, Mr. Phillips's vindication of himself from thesecharges, in his correspondence with his friend Mr. Warren, preceded by abrief statement of the case. 

[21] The civil law will not allow a man to be convicted on his bareconfession, not corroborated by evidence of his guilt; because there maybe 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 usuallyvery backward in receiving and recording such confession out oftenderness to the life of the subject; and will generally advise theprisoner to retract it and plead to the indictment. 4 Blackst. Comm. 329. 2 Hale, P. C. 225. 

[22] Per Story, J. , in Williams _v. _ Read, 3 Mason, 418. 

[23] In enumerating the things to which every pleader of others' causesought to have a regard, the Mirror of Justices says, "That he put nofalse dilatories into court, nor false witnesses, nor move or offer anyfalse corruptive deceits, leasings, or false lies, nor consent to anysuch, but truly maintain his client's cause, so that it fail not by anynegligence or default in him, nor by any threatening, hurt, or villany, disturb the judge, plaintiff, serjeant, or any other in court, wherebyhe hinder the right or the hearing of the cause. " Chap. 2, s. 5. This isindeed in the very words of the serjeant's oath, and Lord Coke remarksthat it consists of four parts: "1. That he shall well and truly servethe king's people, as one of the serjeants at law. 2. That he shalltruly counsel them that he shall be retained with, after his cunning. 3. That he shall not defer, wait, or delay their causes willingly forcovetousness of money, or other thing that may tend to his profit. 4. That he shall give due attendance accordingly. " 2 Inst. 214. 

[24] A pleader is suspendable when he is attainted to have received feesof two adversaries, in one cause. Mirror of Justices, chap. 2, sect. 5. 

[25] "It is impossible to state a case, in which a witness should betreated roughly. If you attempt it, every one feels offended, in theperson of the witness. You make your work more difficult; the witnessshuts himself up, considers you as his enemy, and stands upon hisdefence: 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 tothe pen of Lord Erskine, cannot be too highly recommended to the studentof law. The postscript, which suggests considerations on the _viva voce_examination of witnesses, is particularly worthy a very attentiveperusal. 

[26] Preston on Estates, 2. 

[27] Co. Litt. 71 _a. _

[28] Ibid. 6 _a. _

[29] Art. Edward Tilghman, in the Encyclopædia Americana, vol. Xiv; TheLeaders of the Old Bar of Philadelphia, 50. Let me recommend to theattention of the student a curious and interesting work, entitled "Anintroduction to the science of the law, showing the advantages of alegal education, grounded on the learning of Lord Coke's Commentaries, upon Littleton's Tenures, &c. , by Frederick Ritso, Esq. " There are fewworks of celebrity, in regard to which such opposite opinions have beenmaintained as the Commentaries of Sir William Blackstone. While somehave expressed the most enthusiastic admiration, there have been others, like Mr. Austin, Professor of General Jurisprudence, in the Universityof London (Outlines of Lectures, 63), who have dealt in language ofunsparing condemnation and contempt. Mr. Ritso thinks that "the errorwas in adopting them as an institute for the instruction and educationof professional students, which was evidently no part of Blackstone'splan, nor within the scope of his engagement. " In this point of view, heobjects, that "he represents everything rather for effect, than with aview to demonstrate. Like the gnomon upon the sun-dial, he takes noaccount of any hours, but the serene:

 Et quæ, Desperat tractata nitescere posse, relinquit. 

In a professional point of view, this solicitude rather to captivate theimagination of the student, than to exercise and discipline theunderstanding, is equally unprofitable and inconvenient. It puts him offwith ornamental illustration, instead of solid argument, and leads to asort of half information, which is often much worse than no informationat all upon the subject. " There is some force in these remarks; yet, toomany great lawyers have begun their studies with Blackstone, to leaveany doubt that it is a proper first book. It paves the way for morerepulsive, though more recondite and valuable works. I very much fear, indeed, that a disposition has existed of late years to repudiate Cokeupon Littleton entirely. Chancellor Kent has shown his leaning in thatdirection (Comm. Vol. I, 506, 512). I subscribe fully, however, to Mr. Butler's opinion: "He is the best lawyer, and will succeed best in hisprofession, who best understands Coke upon Littleton. " It ought not, perhaps, to be placed in the hands of the student until he has made someprogress in his reading of other works: but sooner or later, he shouldaim to master it. Lord Coke was, himself, deeply imbued with the love ofhis profession, and he is able to transfuse his own spirit into hisreaders. His method may be objectionable in some respects; but I cannothelp thinking that the life of his work is gone when it is hacked topieces, and then attempted to be fitted together again upon anotherman's skeleton. I have ventured to add in the Appendix (No. II), asketch of such a course of reading, of not very extensive compass, asmay with advantage be pursued by every young man after his admission tothe Bar. 

[30] Maddock's Chancery. Preface. 

[31] Bowyer's Headings on the Canon Law, p. 44. Lord Campbell says thatthe person here mentioned was George Hardinge--a Welsh judge and nephewof Lord Camden. 5 Lives of the Chancellors, 20, 281. According to LordMahon, it was on the 15th of March, 1782, in the debate on a motion ofSir John Rouse, of want of confidence in the ministry after thesurrender of Lord Cornwallis. He ascribes the remark to Sir JamesMarriott, but says that, although he was the assertor of this singularargument, the honor of its original invention seems rather to belong toMr. Hardinge. 5 Mahon's Hist. 139. 

[32] Gibbon's Decline and Fall of the Roman Empire, c. Xliv. 

[33] Continuus inde et sævus accusandis reis Sicilius, multique audaciæejus æmuli. Nam cuncta legum et magistratuum munia in se trahensPrinceps, materiam prædandi patefecerat. Nec quidquam publicæ mercis tamvenale fuit, quam advocatorum perfidia: adeo ut Samius insignis equesRomanus, quadringentis nummorum millibus, Sicilio datis, et cognitaprevaricatione, ferro in domo ejus incubuerit. Igitur incipiente C. Silio consule designato, cujus de potentia et exitio in temporememorabo, consurgunt patres, legemque Cinciam flagitant, qua caveturantiquitus ne quis ob causam orandam pecuniam donumve accipiat. Tacit. Annul. 1. 11, c. 5. 

[34] Chancellor Walworth, in Adams _v. _ Stevens, 26 Wendell, 21. Whileexpressing, as will be seen presently, the opinion that authority aswell as sound policy would have led me to a different conclusion fromthat at which Chancellor Walworth arrived, it is proper to acknowledgethat I have drawn largely upon his learned judgment in this case, and atthe same time to express the high admiration I entertain for the abilitywith which the last of the New York Chancellors illustrated the chairwhere such truly great men had sat before him. 

[35] Gibbon's Decline and Fall, c. Xvii. 

[36] 3 Blackst. Com. 28; Davis Pref. 22; 1 Chanc. Rep. 38; Davis, 23;Hodgson _v. _ Scarlett, 1 B. & Ald. 232; Finch. L. 188; and see Butler'snote 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. DeParis, by Loisil, which contains curious particulars throughoutrespecting the ancient French Bar. An amusing anecdote is related ofPasquier, the famous French advocate. In 1583, while he was attendingthe assizes (_les grands jours_) at Troyes, he sat for his portrait, andafter the painter had finished the likeness, which Pasquier had not yetexamined, he asked him to represent him with a book in his hand. Thepainter said that it was too late, as the picture was completed withouthands. Upon this the witty lawyer immediately wrote the following linesas a motto for the portrait:

 Nulla hic Pascasio manus est: Lex Cincia quippe Causidicos nulla sanxit habere manus. 

Forsyth's Hortensius, 424. 

[37] The reader will find in the Appendix, No. III, an account of thedifferent orders of the English Bar. 

[38] In some States, the professions of attorney and counsellor at laware not distinct; the same person conducts the cause in all its stages;and it has not been considered that his authority ceases when judgmentis obtained. The attorney is in some degree the agent as well as theattorney of the party. Huston, J. , in Lynch _v. _ The Commonwealth, 16Serg. & Rawle, 368. 

[39] Mooney _v. _ Lloyd, 5 Serg. & Rawle, 416. 

[40] Hornblower, C. J. , in Seeley et al. _v. _ Crane, 3 Green, N. J. 35. "I shall be sorry to see the honorary character of the fees ofbarristers and physicians done away with. Though it seems to be ashadowy distinction, yet I believe it to be beneficial in effect. Itcontributes to preserve the idea of profession, of a class which belongsto the public, in the employment and remuneration of which no lawinterferes, but the citizen acts as he likes, '_foro conscientiæ_. '"Coleridge's Table Talk, vol. 2. 

[41] Gray _v. _ Brackenridge, 2 Penna. Rep. 181; Foster _v. _ Jack, 4Watts, 33. In New Jersey, an advocate's fees are not recoverable at law. Shaver _v. _ Norris, Penning. 63; Seeley _v. _ Crane, 3 Green, 35; VanAlter _v. _ McKinney's Exrs. 1 Harrison, 236. That the general current ofdecisions is in the opposite direction, will be seen by consultingStevens _v. _ Adams, 23 Wendell, 57; S. C. 26 Wendell, 451; Newman _v. _Washington, Martin & Yerger, 79; Stevens _v. _ Monges, 1 Harrington, 127;Bayard _v. _ McLane, 3 Harrington, 217; Duncan _v. _ Beisthaupt, 1 McCord, 149; Downing _v. _ Major, 2 Dana, 228; Christy _v. _ Douglas, Wright's Ch. Rep. 485; Webb _v. _ Hepp, 14 Missouri, 354; Vilas _v. _ Downer, 21Vermont, 419; Lecatt _v. _ Sallee, 3 Porter, 115; Easton _v. _ Smith, 1 E. D. Smith, 318. 

[42] Chancellor Walworth, in Adams _v. _ Stevens, 26 Wendell, 451; Foster_v. _ Jack, 4 Watts, 337. 

[43] Senator Verplanck, in Adams _v. _ Stevens, 26 Wendell, 451. 

[44] Vilas _v. _ Downer, 21 Vermont, 419. Responsibility in aconfidential employment is a legitimate subject of compensation, and inproportion to the magnitude of the interests committed to the agent. Kentucky Bank _v. _ Combs, 7 Barr, 543. 

[45] That evidence of usage is admissible to show what is the rule ofcompensation for similar services to those sued for, see Vilas _v. _Downer, 21 Vermont, 424; Badfish _v. _ Fox, 23 Maine, 94. 

[46] Concerning the pleader's salary, says the Mirror, chap. 2, sec. 5, "four things are to be regarded: 1. The greatness of the cause. 2. Thepains of the serjeant. 3. His worth, as his learning, eloquence, andgift. 4. The usage of the court. "

[47] Les lois et les docteurs, les anciennes ordonnances et plusieursanciens arrêts donnent aux avocats une action pour le paiement de leurshonoraires: mais, suivant la dernière jurisprudence du Parlement deParis et la discipline actuelle du barreau, ou ne souffre point qu'unavocat intente une telle action. 1 Dupin, Profession d'Avocat, 110. Ilest possible, que l'usage ne soit qu'un préjugé; mais ce préjugé a euune salutaire influence sur la splendeur du barreau Francais. On neprétend pas, en France, qu'un avocat n'a pas droit à un honoraire pourprix de ses travaux. Jamais on n'a refusé d'en allouer à ceux qui en ontréclamé. Dans plusieurs barreaux, ces réclamations sont même tolerées. Mais le barreau de Paris s'est montré plus sévère; et non seulementautrefois, mais encore aujourd'hui, tout avocat à la cour quiactionnerait un client en paiement d'honoraires serait rayé du tableau. Du reste, s'il est defendu d'exiger, il est permis de recevoir tout ceque le client veut bien assigner pour prix aux services de son avocat, en raison de ses peines et de l'importance des travaux. Ibid. 698. 

Les honoraires dus par les parties aux avocats chargés du soin de leurdéfense, 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 partiequi succombe, et non d'apprecier les soins de l'avocat, appreciation quidoit être faite selon l'importance et la difficulté du travail. Ibid. 699. 

[48] Arden _v. _ Patterson, 5 Johns. Ch. Rep. 48. 

[49] Foster _v. _ Jack, 4 Watts, 338, 339. 

[50] Clippinger _v. _ Hepbaugh, 5 Watts. & Serg. 315; Marshall _v. _ TheBaltimore and Ohio Railroad Co. , 16 Howard (S. C. ) Rep. 336. Thatchamperty is an offence at common law, and that contracts of thatcharacter, between client and counsel, are void on that ground, and asagainst public policy, will be found to have been maintained in Rust_v. _ Larue, 4 Litt. 411; Caldwell's Administrators _v. _ Shepherd'sHeirs, 6 Monroe, 391; Thurston _v. _ Percival, 1 Pick. 415; Arden _v. _Patterson, 5 Johns. Ch. Rep. 48; Bleakley's case, 5 Paige, 311; Wallis_v. _ Loubert, 2 Denio, 607; Backus _v_. Byron, 4 Michigan, 535; Elliott_v. _ McClelland, 17 Alabama, 206. The cases on the other side, are, Thallhimer _v. _ Brinckerhoff, 3 Cowen, 643; Ramsay's Devisees _v. _Trent, 10 B. Monroe, 336; Bayard _v. _ McLane, 3 Harrington, 216; Lytle_v. _ State, 17 Arkansas, 608; Newkirk _v. _ Cone, 18 Illinois, 449; Major_v. _ Gibson, 1 Patton Jr. & Heath (Va. ), 48; Wright _v. _ Meek, 3 Iowa, 472. In New York, by the Revised Statutes, it was made an offence, punishable by fine or imprisonment, and removal from the Bar, for anyattorney, counsellor, or solicitor, directly or indirectly to buy, or bein any manner interested in buying, or to advance or procure money to beadvanced upon anything in action, with the intent, or for the purpose ofbringing any suit thereon. 2 Revised Stat. 386. The Code of Procedureappears to have changed the law in this respect, and to enable partiesto make such bargains as they please with their attorneys. Code ofProcedure, s. 258; Satterlee _v. _ Frazer, 2 Sandf. S. C. Rep. 142;Benedict _v_. Stuart, 23 Barb. 420; Ogden _v. _ Des Arts, 4 Duer (N. Y. ), 275; Sedgwick _v. _ Stanton, 4 Kernan, 289. In Kentucky there appears tobe a statute, which provides that any one not a party, receiving ascompensation for services in prosecuting or defending a suit the wholeor part of the subject-matter in suit, is guilty of champerty, and ithas been held that this statute extends to attorneys. Davis _v. _Sharron, 15 B. Monroe, 64. In England, contingent fees are held to beclearly within the statutes of champerty and maintenance. Penrice _v. _Parker, Rep. Temp. Finch, 75. 

[51] 2 Wallace, Jr. Rep. 452. 

[52] 10 Casey, 299. 

[53] Paciscendi quidem ille piraticus mos; et imponentium periculispretia, procul abominanda negotiatio, etiam a mediocriter improbisaberit: cum præsertim bonos homines bonasque causas tuenti non sitmetuendus ingratus, qui si futurus, malo tamen ille peccet. Quinct. Lib. Xii, c. 7. 

[54] Evans _v. _ Ellis, 5 Denio, 640; Newman _v. _ Payne, 2 Ves. 199;Walmsley _v. _ Booth, 3 Atk. 25; Montesquieu _v. _ Sandys, 18 Ves. 313. The doctrine has been fully followed in this country; Stockton _v. _Ford, 11 How. U. S. 247; Starr _v. _ Vanderheyden, 9 Johns. 253; Howell_v. _ Ransom, 11 Paige, 538; De Rose _v. _ Fay, 4 Edw. Ch. 40; Lewis _v. _J. A. , Ibid. 599; Berrien _v. _ McLane, 1 Hoffman, Ch. Rep. 424; Miles_v. _ Ervin, 1 McCord, Ch. Rep. 524; Rose _v. _ Mynell, 7 Yerger, 30; Bibb_v. _ Smith, 1 Dana, 482; Smith _v. _ Thompson's Heirs, 7 B. Monroe, 308;Jennings _v. _ McConnel, 17 Illinois, 148. 

An agreement made by a client with his counsel, after the latter hadbeen employed in a particular business, by which the original contractis varied, and greater compensation is secured to the counsel than mayhave been agreed upon when first retained, is invalid and cannot beenforced. Lecatt _v. _ Sallee, 3 Porter, 115. 

[55] In Foss's Grandeur of the Law, eighty-two existing peerages arestated to have sprung from the law. That was in 1843. 

[56] Non merum, si ob hanc facultatem homines sæpe etiam non nobilesconsulatum consecuti sunt: præsertim cum hæc eadem res plurimas gratias, firmissimas amicitias, maxima studia pariat. Cic. Pro Muræna. 

[57] Vivit, vivetque per omnium sæculorum memoriam. Dumque hoc vel fortevel providentia vel utcunque constitutum rerum naturæ corpus, quod illepæne solus Romanorum animo vidit, ingenio complexus est, eloquentiailluminavit, manebit incolume: comitem ævi sui laudem Ciceronis trahet;omnisque posteritas illius in te scripta mirabitur, tuum in eum factumexecrabitur: citiusque in mundo genus hominum, quam cadet. Vell. Patere. L. 2. 

[58] Sir William Jones adds to his other claims upon our admirationthat of a decided partiality to the character and fortunes of ourAmerican Republics. "The sum of my opinion is, " says he, "that while allthe American people understand the modern art of war, and learnjurisprudence by serving in rotation upon grand and petit juries, theirliberty is secure, and they will certainly flourish most when theirpublic affairs are best administered by their Senate and Councils. Icannot think a monarchy or an oligarchy _stronger_ in substance, whatever they may be in appearance, than a popular government.... Ishall not die in peace without visiting your United States for a fewmonths before the close of the eighteenth century. May I find wisdom andgoodness in your Senate, arms and judicature, which are power, in yourcommons, and the blessings of wealth and peace equally distributed amongall. " 2 Wynne's Eunomus, 359, note. 

[59] Note at p. 47. 

[60] Note at p. 75.