KF 306.29D72

Cornell University Library

The American lawyer, as he

was— as he is-

3 1924 018 771 265

(IJnrnpU ICaw ^rtjool library

f'ORfcEl.T vv RhELL

11 1908




Cornell University Library


original of this


is in

the Cornell University Library.

There are no known copyright

restrictions in

the United States on the use of the


THE AMERICAN LAWYER AS HE WAS—AS HE IS—AS HE CAN BE BY JOHN Author of " The " Interstate R.." " Commercial Trusts. NEW YORK 1907 ." Commerce Act. &c. DOS PASSOS NEW YORK BAR OF THE Law of Stock Brokers & Stock Exchanges. THE BANKS LAW PUBLISHING CO." "The Anglo-Saxon Century." &c.

by JOHN R. 1907. DOS PASSOS .Jopyright.

the Literature. and the Bar.CONTENTS CHAPTER Introductory I PAGE 1 CHAPTER II The Genealogy of the Lawyer 7 CHAPTER III A Parallel Between the Past and Present Lawyers of the United States 12 CHAPTER The IV Press. and the Conditions Practice. since the Civil War 35 CHAPTER V The Education of the Lawyer. the Stage. and his under which he Oath is Authorized to 50 CHAPTER Nature of Lawyer's Vocation VI 68 iii .

and in other Capacities. The Duties of a Legislator 85 CHAPTER VIII 115 The Obligations of a Lawyer CHAPTER IX The "Duties" of a Lawyer 124 CHAPTER X Causes and Remedies 164 .IV CONTENTS CHAPTER VII PAGE The Lawyer's Political Employment as a Legislator.

bear the same close relationship to each other that the nose. I shall four great organs of public opinion. It is assumed that what the people of the United States really think or want. the Bar. They all in view. In the inis expressed through the ballot box. —the by the Pulpit. do to the head. as citizens. the Press. as creative forces. but it is impossible to discuss one without keeping them They are parts of a whole. terim of these official utterances. in shaping the course and destiny of the nation. the eyes. and the Stage. INTRODUCTORY. and more or less created. A 1 .THE AMERICAN LAWYER. CHAPTER I. Still each is capable of separate. the ears. public thought is reflected. not undertake to estimate the relative value of each of these organs. and the throat.

In a confederation of States like the one which we have established. therefore. is most profound and penetrating. it subject to the lawyers. perhaps. here and there. They framed the former instrument. — — that lawyers should be intelligent. and while they never act in public questions as an organized body as a unit their influence. While this is said to be a government add. but I must elucidate it. of the people. by brief reference to the Pulpit. They both make and interpret the laws. the Press. going too far to and afterwards as lawyers and Judges. capable. My subject is the Bar. both the right and interest of the whole people to delators. affairs. in all branches of public and private life. with a written Constitution. but it is only by acquiring a correct knowledge of them all. honest. then as legis- — not. At least. and for the people. that one can fully comprehend the combined influence which these four organs may have upon existing distinctive treatment. and the Stage. must be filtered through the lawyers. first as politicians. it seems natural that the lawyers should predominate in the government. is by the people. the crude sentiments of the people. The lawyers swarm in all of the departments of the National and State Government.2 THE AMERICAN LAWYER. and devoted to the administration of mand . It is.

"Know thyself" was the Delphian invocation. no question is of more importance to the people than to know whether this dominating class is Despite this palliving up to its true mission. In every aspect of life. introspection of itself. the laity has paid no attention to the subject. judicial and legislative. justice. and depend upon ethics. the important region of the lawyer's vocation seems Apparently no lawyer to have escaped them. or neglected. public the results of an investigation of the profession. cover almost every inch in the extensive field of technical law. it is to be classed among the most important of commands. than legal. executive. every branch of the government. pable truth. has yet published the real nature of his calling going from the top to the bottom of it. when they swarm in. It is a subject more literary and It carries one far beyond general. It has been overlooked. and control. 6 When hundreds of lawyers are turned out upon the community each year. He who ventures therein must be prepared to quit the sacred precincts of precedent and stare decisis. precedent. legal While the multitudinous treatises which writers have published. Nor does the Bar make any full. to graze upon all of the pastures of public office. The reason is obvious. real.— INTRODUCTORY. by the lawyers in respect At least. no one has yet made to their office. and .

they are unable themselves from technical and professional restraints. which underlie human society. except to themselves. He must then say some ugly things about himself. while many lawyers have doubtless ruminated upon the subject covering with their mind's eye the same field which I am about to traverse they have not screwed their courage to a point of putting their thoughts upon paper.4 the THE AMERICAN LAWYER. What is a lawyer? What is his real mission? What relation does he bear to the government What are his real of which he is a citizen? — — duties to society? . all of this. Hence. natural conditions. Hence the enormous importance of those aspects. Men do not like to confess. yet its more comprehensive relations have escaped them. have hitherto received but When little recognition as living forces in society. accurately.. which. within to free itself. lawyers become authors. It is of the first importance to endeavor to ascertain. to reduce the law to a science. and while their works have done something. But beyond when a lawyer under- takes an honest introspection of his profession. he is very apt to run into a confession. while doubtless felt in a dim way. the due relation of lawyers to other interests of the community. and then to inquire if they have lived up to it.

In all of their writings. Forsyth's "History of Lawyers" is a most interesting obligations 1 lawyers. if it had been sustained in the text. and essays. the broad title of which. one sees that the lawyer's vision have extended no further than to a contemplation of his duties to his clients.INTRODUCTORY. would have covered some of the ground gone over here. Social and Professional Duties of Attorneys and Solicitors. treatment subject. and all phases of a lawyer's life and of his relations to his client. without stint. from remote and Sharswood has contributed a little work on Professional Ethics. These duties are imperishably i"The Moral. We look in vain for any adeof this quate." . yer in his full relations to society. lectures. And there are several books on the lawyer's technical duties and liabilities. have been written and published. held to unexceptionable purity of quite well understood that to his clients is the lawyer conduct. 5 Some the technical books have been written about of Warren published his lectures. but no one has raised the curtain upon the lawhistorical review of the profession periods. beyond It is this narrow view. and that he must be fair and honorable with the Court. of his calling. distinctive. narratives. covering legal romance and history. Besides. seems to and to the courts.

they believe of their calling. mission. not with malice prepense. which he unconsciously imbibes before entering upon the duties of his office. which opens to them their full duties. it that. at the top career. Accordingly. that a large number of the lawyers are delinquents to society. with a very inadequate knowledge Fundamentally. and bottom of their professional they should serve their clients at all sacrifices. than to attempt to hold up to the lawyer. The lawyers stop here in the survey of their and as there is no course of instruction. that they start out in professional life. or book. is not surprising.6 THE AMERICAN LAWYER. sometimes even of truth and justice. a faithful picture of his real mission. I know of no occupation more interesting. . It then will be seen. They seem to be a part of the milk of his education. written upon the lawyer's mind. but from a failure to appreciate the real and full nature of their professional duties.

in connection with a government. profession of the law has been at all times. It was then. and honored callThis distinction. literati. moralists. the man of superior mind and education conBut apart from direct historical data. All knowledge was locked up in the breasts of Ecclesiastics. trolled. they at least regarded them as effeminate and inharmonious with their lives. lawyers are a necessary part of civilization. originally grew out of the superior knowledge of the lawyers.CHAPTER II. and did not look with absolute contempt if they upon these arts. to 7 — . The and ing. In England. as it should be (but is not) now. as it were. THE GENEALOGY OF THE LAWYER. in all countries. the nobles and warriors of ancient times were ignorant of reading and writing. and law advisers. it appears. a body of men whose business and training fit them as interpreters of law standing. who acted in the multiform relation of priests. between the State and litigants. a favored There must always exist.

that all attorneys should be examined by the justices. 211 et seq. XVIII.8 THE AMERICAN LAWYER. is made to individual disputes. Hen. c. " His- 2 " History of English Law. to make sure of their qualifications. and especially that they make no suit in a foreign country. and such as were passed in the above manner "The Parliament began for provision i See Pollock & Maitland's Law.. all other attorneys were to be put out. they were to be good and virtuous and of good fame. they were to be received and sworn well and truly to serve in their offices. Regulation of attorneys was 2 made in the reign of Henry IV." Vol. The lawyers gradually segregated themselves from the ecclesiastical system. Reeves puts it in this wise: to make some ordering attorneys. who had now become a very considerable body of men. 4. and therefore. and if they appeared to be such. and an independent order of their own was the consequence." I. see that proper application of laws. it was ordained by Stat. . tory of English I. 2d ed. Complaint had been made of the mischiefs arising from their ignorance and want of knowledge of the law. 422. In England the law began to be cultivated as 1 a separate study in the thirteenth century. IV. and by their directions their names should be put in a roll. page p.

the intimacy. or ceased to act. Now the client can both read and write. " It was enacted. he should forswear the court.THE GENEALOGY OP THE LAWYEK. out the truth and render justice. of record. this ordinance was also to be observed in the exchequer at the discretion of the treasurer and barons. " It that is. the client could not read or write. between himself and the court began to weaken. as a true friend of the court." The lawyer first appeared as a friend and adviser He worked with the latter to sift of the court. being virtuous and learned. 9 were to be put in their places by their masters (sic). that if any attorney was found notoriously in default. however. consisted in representing litigants before the courts for money. but the law is complex . and that his usefulness. Originally. and notwithstanding that the law was simple and contained in a few books. the justices might appoint others in their room. should diminish. the client did not understand it. and never be received to make suit in any of the king's courts. or otherwise. that his advocacy of his client's interests should overcome his independence. and so far as his individual cases were concerned it was simply hu- man nature. so to speak. When the occupation of the lawyer. and sworn as above mentioned. by their clients. was enacted that when qualified attor- neys died.

threatening with imprisonment the " serjeant countor. and ambition to win." or in advocates guilty of collusive or deceitful practices. delity. cannot pursue in all of its labyrinths. untiring industry. for the paths through adjudications.10 THE AMERICAN LAWYER. Human nature was very much the same in the thirteenth. zealousness. as it The brakes were is in the twentieth. It is a characteristic of the human mind to be faithful to a trust to be over. legal guide guide. .exception. are mazy and tangled. not the rule. the breach of it is the The lawyers are the . most prominent illustrations of this truth. Fi. and a statute is cited. statutes. of affairs where individuals are compelled to repose confidence in others. and the it. and often sweep away moral and legal barriers. client and multifarious. codes.rather than underIn all the varieties zealous in its performance. century. Inordinate zeal for clients. and that without a trained legal very frequently knows not the way out of the woods himself. and all kinds of personal sacrifices in the interest of the client. stand in the path of success. passed King Edward the First's day (1275). then applied to the illegal practices of lawyers as they are now. are their predominating traits. are powerful stimulants to human energy. and law treatises. to excesses in advocacy This has led them exaggeration of facts —and — often to gross which sometimes to crime.

They all of also serve to apprise the present Bar that the evils are not characteristic of this era. they chiefly arise out of their relation to the State. But will be set forth in the subsequent chapters. of power and opportunities. What this power is. 11 is The only importance of the above references to show that at all times there has been a tendency on the part of lawyers. and when and how the confidence is bestowed. and not to their clients. is the primary sin for which the lawyers are answerable. and of unlimited confidence. The abuse . to overstep the limits of true professional bounds. sometimes from greed or ambition. generally from excess of zeal.THE GENEALOGY OF THE LAWYER.

the old and new regime of lawyers is this: the great aim of the old lawyers was to master the elements of law. I and that we never can without comparing when I became an apprentice to the gathered enough. I thus institute a comparison which I think is happy. disappearing law. to speak with some authority The fundamental difference between of the past. from instruction and association. I am drawing a line between the period before and after the Civil War. I cannot speak with complete knowledge of the It was gradually I was not of it. they stood nearer to 12 . old generation. they depended upon an eloquent presentation of their causes. however. and the new ones on this side of the line. It is said that comparison gives definiteness well. and I put the old generation of American lawyers on the farther side. understand anything it with something else. and clearness to thought. A PARALLEL BETWEEN THE PAST AND PRESENT LAWYERS OF THE UNITED STATES.CHAPTER III.

the. courts


than the lawyers

of to-day


the judges

had the





their pleasure, to listen

to the advocates; "commercialism" did not ex-

there were less





legerdemain to resort

because that dire plague

the profession,

had not yet spread itself over and destroyed its science, as it

under the





form was



merits of a controversy,

were principally sought

The lawyers of to-day are case and code lawThe search for 'principle is subordinate to yers. an investigation for a precedent. The right or
justice, or the merits of controversies,


under a mass





kind of intellectual lawyer than it did in the development to be a days long gone by. The modern code lawyer is bright enough, and his wits, like the quills on a fretful porcupine, are always in full play. He knows little of elementary law, but he carries, as a soldier would a knapsack, a memory filled with sections of codes and adjudicated cases.
It requires a different


combat now consists of hurling provisions of the Code and "pat" precedents at each other. Hence the modern advocate's nose is always to

digest, "case "-law accumulathe must have indices to search ing so fast that


found in a


Poor soul!

he cannot find But he is resourceful and sophistical, and in the absence of his "authority" he begins to differentiate and distinguish, and he grinds away, at the precedent of his adversary until it is whittled to nothing. If he is clever in his presentation, the courts generally follow him, and wipe out the old precedent by differentiation, and with a mock refor his precedents.

a precedent, he


in a terrible sweat.

spect for stare decisis,




attention to



stands in the


of their latest con-

victions, as a court of last resort

would regard a
in reference to

decision of a primary magistrate.

must pause here

to say a


the doctrine of stare decisis.
principle in

It is a venerable

while there

Anglo-Saxon jurisprudence. To-day, is an affected respect for it, there is often an actual departure from it, introducing manifold inconsistencies and confusion. It is a serious question whether the doctrine of stare decisis can be, now, strictly upheld. Under any necessarily conditions it dwarfed the intellect, and stifled moral convictions. No lawyer, or court, could accept a precedent, which he believed to be wrong, without a struggle, and with reluctance. The effort of the legal and judicial mind in these times is to differentiate it, and thus escape from


Whatever merit the doctrine

possessed a century ago (and as a rule of property



was great

as fixing stability), precedents have
fast that the

a maze of confusion in endeavoring to follow them. When the law reports were few, and the precedents shone like bright stars, in the legal firmament, and the lawyers knew and followed them, as astronomers do the particular planets, the

accumulated so


lost in

application of stare decisis

But now

was easy and




flitters between the thousands of a phantom of the law not as a

vital principle.
I will give

a striking instance occurring in the




York, which

illustrates the con-

dition of the doctrine of stare decisis, caused


a multiplicity of decisions and legal reports. In the case of Williams v. Trust Co., decided

May, 1892



appeared that the



pledged to the defendant certain bonds, as security for a loan under a collateral stock note, providing that in case of default in payment at the time specified, defendant might sell the securi-

"in such manner as they in their discretion may deem proper without notice." The note was dated March 1st, 1884, and was payable








were not foreclosed on the maturity of the loan, but there were numerous interviews and communications between the parties looking to the

133 N. Y. 660.



extension of the loan, and operating, as claimed by the plaintiff, as a waiver. Notwithstanding
the efforts of the plaintiff, to have the question

waiver determined by the jury, as one of fact, the Court refused, and held that the defendants had the right to foreclose the pledge, without notice, at any time, after the maturity of the loan, unless the written agreement was in some way modified, and that the parties had not modified their rights by anything that occurred after the 1st of September, when the loan maThe Court of Appeals sustained this tured. view, and defeated the plaintiff, holding that the Court below committed no error, in not submitof

ting the case to the jury.

This direct question came again before the Court in the case of Toplitz v. Bauer, 1 in January, 1900, nearly eight years after the preceding case. In that case the Court, contrary to its decision in the preceding case of Williams, held
that the contract of bailment, whereby personal property is pledged, as security for a debt, is






contracts where the mere

indulgence on the part of the creditor by a promise to extend the time, or by his conduct, will effect

a change in the duties and obligations of the parties to each other, as prescribed by the original agreement, and that where the original contract

161 N. Y. 325.

the right of the pledgee is payment of a note.PAST AND PRESENT LAWYERS. conversion. after having waived his right to a strict performance of the contract. or course of conduct on his part. the pledgee proceeds on the note. without notice to the pledgor. consisting of a different personnel. but the court. which leads the pledgor to believe that a forfeiture will not be insisted upon without an opportunity given him to redeem. 17 under which property security for the pledged as collateral permits a sale. he is liable for damages occasioned thereby in an action of the note. may the vicissitudes of the doctrine of stare decisis under present conditions were powerfully displayed in the above litigations. upon default in payment of be waived by agreement. in entire ignorance of its previous decision in the Williams case! A century ago such a precedent would hardly have passed unnoticed. public or private or otherwise. The case of Williams was controlling upon the court. on either side. B . did not remember Now previous decision. in the latter case of Toplitz. and that if. to so dispose of it. nor was its attention called to it in the points of counsel. and hence it proceeded to decide the Topits own litz case on a new line of reasoning. and no new or independent consideration is required to support the waiver. declaration. without notice.

Alas! for the uncertainty and instability of stare decisis. it But. was made and as much saved by the fortunate plaintiff in the second. or industrious precedent hunter. I cannot afford space for others. such a lack of knowledge of elementary law. —say for of the last twenty-five illogical Such a mass bad reasoning. . disregard of the rule of stare decisis. or logically. inasmuch as last decision. conclusions. These views are further illustrated in reading the decisions of the Supreme Court of the United States. Yet thousands of dollars were lost by the unsuccessful litigant in the first case. No doubt they are within the recollection and reach of the Bar. This is only one illustration. in sufficient number to show how sensibly weakened the doctrines of stare decisis has become. Now which which is of these decisions is right. hardly contradictory statements. the whole question apparently remains open. and. and the binding? Naturally. unfortunately. by virtue of a multiplicity of decisions which cannot be unearthed. without any knowledge of the previous one.18 THE AMEEICAN LAWYER. and an ignorance or contempt of the history and spirit of the Constitution of the United States. and those States of the highest courts of the in- dividual years. and of the several States. even by the most lynx eyed. and of the principles of jurisprudence.

It requires great courage to overrule a freshly made decision. aff'd 93 N. and whose history is so well known to students of the American Constitution. Courts are ashamed to confess that a precedent which they have made is wrong. tellectual perception. as it were. p. Legislative. and judge-made law. 19 can be imagined to exist. and most of the time the real issue is buried out of sight. which anyone chooses to espouse. that it can be said of it. 61. for example. since he does not emerge with a mind scratched and bleeding from the thousand thorns there existing. it is because he has no inThat simple enactment. is fencing with the forms of the law.PAST AND PRESENT LAWYERS. that elementary principles. has been so twisted and turned by the judicial minds which have grappled with it. and hence it is. "jumped. buried — thousands of feet deep under mountains of precedents. By the Code of Procedure of 1 30 Hun's Rep. The case of Fogg v. 713. as was repeated of the "Year Books" a precedent can be there found on any side. undertake to enter into the extensive field of decisions. Let anyone. created by the interpretation of the Commerce Clause if of the Constitution. have accumulated so fast and thick. rarely can be brought to the surface. to-day. Legal practice. S„ p.." But I must return to my parallel. . 652. 113 U. Fisk * is a good illustration. the Civil War. of any subject. Y.

already begun in the State Court. upon the statement that the defendant could not have a fair trial in the State Court. New York. that the practice of examining a defendant before trial did not prevail in the Federal Courts. He must submit to the examination. was to it. in fact. Then he carried the cause to the Court of Appeals.20 THE AMERICAN LAWYER. that the defendant could not cut off an examination. for the motion to transfer. however. which in turn affirmed the original order. by a removal to the Federal Court. The affidavit that a fair trial could not be had. The object^ of the transfer. The defendant was at his wits' end. It was granted. because but few knew of the existence of the case. The defendant then refused to answer. was not traversable under the then Act of Congress. and those who did cared nothing about avail of a decision of the Circuit Court of the United States. sued out a habeas corpus from the . They transferred the cause to the Federal Court. But his lawyers were equal to the emergency. under certain circumstances a party to an action may examine the other party before trial. put himself in contempt. But the Circuit Court judge held. The plaintiff applied for an order for the examination of the defendant. The defendant appealed to the General Term of Supreme Court. The order was sustained. There was not the slightest the ground.

understanding the necessities of commercial development. and not one word had ever been heard of the merits! Every practicing lawyer can furnish one or more similar stories. with the multifarious provisions of a Code constantly at his beck. — When possess. precedent at his tongue's end. and the lawyer is burdened by the incubus of form and statutes and codes. like . wakeful. The case went to the highest court of the State and of the United Supreme Court upon a mere question of form of prachad progressed to this stage. to attain prominence? He must be sharp. it the defendant died. and he must create. a fresh. Real eloquence. under which he staggers like Christian in the "Pilgrim's Progress. have almost disappeared. hot.PAST AND PRESENT LAWYERS. not. What kind of a mental make-up must a lawyer States tice. every year. under these conditions. he must be a good business man. so that his clients will not be entangled in the meshes of modern legislation. and a knowledge of sound elementary law. 21 of the United States. and that august tribunal set him free. the great schemes of present times. to entrap the unknowing. in the choice of remedies. he must be quick of speech. or make effective. clever. bold. which springs up as grass. even audacious." under the weight of his sins. holding that he escaped examination by removal.

are not sought for. or in natural ability. It is a lamenlawyer. Simply. or talent. to assist their clients in good or bad causes. life. he finds of him. small figure in his professional merits. than the lawyer of yore. Powder has given way to dynamite. deliverance from them. I can discover little or no difference between the past and present lawyers. and experience. As a class. to avail themselves of all the weapons at hand. the cannon loaded at the muzzle and discharged every five or ten minutes.22 THE AMERICAN LAWYER. They cut a In a word. not disadvantageous intellectually to the latter. A judicial inquiry into the rights of parties for "points" A means a search and forms and precedents. He has no less brains no less natural intelligence. and he is a better business man. In point of morals. comparison between the past and present is . he is withal. justice. the lawyers always have been ready. for recourse to them. to have a happy when he cannot have none even in any other kind mental equipment. to the breechloader which automatically pours out its murderous fire every second. armed with different weapons. sometimes even usurping the client's discretion and judgment. — . the flint musket to the rifle of twelve cartridges. The lawyer now boldly enters into the business end of his client's transactions he sells him prudence.

table truth.


The honest and dishonest lawyers themselves under the same pleas, that

the law

uncertain, because of
it is



yer, therefore,


or less a chance.



has a technical answer ready, to

him in taking any case. Codification has produced more material to aid dishonest clients

General business opportunities more frequent. Hence, is greater trickery, cunning, and pettifogging are more pronounced and visible. I doubt, however, if, in proportion to actual numbers, and existing commercial conditions, the lawyers, as a body, are morally worse than their professional ancestors. But let me proceed a step farther in the comIn the United States the lawyers, parison.

than the

common law supplied.


to the


of the Civil



1861, were the recognized
aristocrats of the land.



all of

They possessed


and at least an equal share of scholastic refinement and learnWhen, after the Civil War, Judah P. Bening. jamin, of Louisiana, went to London to practice
intelligence of the English lawyer,

law, he easily rose to the first position at the English Bar. It was a point of pride with the

American lawyer to be "up" A ture, ancient and modern.

in the best litera-

nice sense of pro-

fessional honor, great pride in his calling, and the highest respect for the principles of the law,



were the distinguishing features. There was a sharp difference between them in their conceptions of democracy as illustrated in the- teachings of Hamilton, on the one side, and Jefferson, on the other; but predominating their party convictions was a deep faith in political, religious, and social freedom; a profound devotion to the Constitution, both in what it gave and secured, and in what it limited according to differing, but
enlightened, interpretation.

The lawyers

of the


generation believed






of the present regard it as elas-

This is an age of electricity. The people have neither the time, nor patience, to amend the Constitution. Hence, if prevailing thought




the Constitution







the expense, of course, of the true Federal system. Stretched to a point when the rubber gives way,



but the


human, and generally follow prevailing opinion. The Congress, forsooth, has power to make greenbacks a legal tender, but no power to create a broad and fair income tax! Here is as beautiful
a piece of inconsistency as can be found in our constitutional history. According to the best judgment of the profession, the very reverse is the law Congress had no power in the former,




in the latter, case.




profession of a lawyer in the United States,

to continue, justly carried with

the right to


occupy the highest social and political positions. lawyer commanded respect and confidence. I remember, as a small boy, that, walking one day, some one pointed to a man whom he said

was a lawyer. I distinctly recall the impression made upon me. I said, "There goes a man who knows everything," following Cicero's definition This was the prevailing opinion of an orator.
It has not yet entirely faded out. now it is indistinct. pronounced; Then it was The Bar has never been dangerous or exclusive; largely, perhaps, because it has never been unionNo man, or party, ever dared to attempt ized. to use the American Bar to advance selfish or Yet genuine patriotism among sinister designs. lawyers is, to-day; but feebly illustrated. I be-

of the world.


many of them would

stretch the Constitution

(Federal or State) until

cracked, to win a case.

an era


War marks




of in





decadence There certainly was a transformain the Bar. Before tion, from a profession to a business.



that event, the position of a successful American advocate was regarded as the most honorable

and splendid





was the goal

was the social to which the


of the nation

and ambitious youths strove to reach by heroic efforts

of study


The reason was


Eloquence was one of
as a

the principal attributes of the distinguished ad-

and while


separate art, as in Greece and

was never cultivated Rome, the

it in his own way, guided and genius, and by such lights as he could borrow from successful contemporaries, and ancient and classic models.

vidual lawyer mastered





of the

The study of eloquence most alluring, as it
occupations in


unquestionably one one of the most enwhich the mind can


As when

of old

some orator renowned

In Athens or free Rome, when eloquence Flourished, since mute, to some great cause

Stood in himself collected, while each part, Motion, each act, won audience ere the tongue Sometimes in highth began, as no delay Of preface brooking through his zeal of

The aim of the orator being to vindicate right and justice, as the painted purpose of the chivalric knight of old was to protect and emancipate the oppressed, he necessarily must deeply inquire
into the principles of truth, cultivate the graces

in necessarily an orator. The study literature. to be able to stand up before his fellows and be listened to. than Athens or Rome listened to in a oratory. faculties. is now heard in the United States in a week.PAST AND PRESENT LAWYERS. utterances of the . illustrating century. with modExordiums and perern lawyer have succeeded. The great book of human nature must ever lie open before him. to 27 and train his mental to. orations are abolished by rules of court. crisp. shifted. Every oral argument must be boiled down. of history. It has always been one of the most absorbing passions of man. The scenes have The age of forensic eloquence has gone. and poetry . defend the causes hands. of metaphysics and of logic. It is a psychological felicity that perhaps preponderTo-day it is the domiates all other ambitions. to two hours. be always ready and physical resolutely and placed in his courageously. More involved the character every conceivable kind of rhetoric. which establish the limit of legal oratory. of language. is languages. all of its attendant glories and attractions. brief. to the actual bone of the The practical. true and false. But the real orator has almost entirely disappeared from the legal stage. when the legislatures are in session. from twenty minutes. nating passion of all Americans to talk.

briefs are made to an ab- surd length often reaching a good-sized duodecimo. the results of jury trials are just. that in times past the . The distinction I well. I say in general. or indolent judiciary. of from one to five hundred pages leaving nothing to the imagination. or to instruct an ignorant. I do not mean that wrong is perpetrated.— 28 contention. who dominate and capture their fellow jurors in the jury room. THE AMERICAN LAWYER. In proportion as legal oratory has been curtailed. The his skill of the the are lawyer in handling witnesses. to means which a way as to catch the am trying to make clear is. but not in a greater proportion than long ago. The great raise en scene effects are what bring results. professional success is In jury trials. what are called legal "briefs" have expanded. too busy. for juries often go astray. Of course it counts to be able to "sum up" group quickly the facts together. mainly — because the Bar their learning is afraid to trust everything to and industry. or intelligence. and the graces of rhetoric are neces- sarily banished. of the judges who are to read them. In general. attained before the addresses are made. in such minds of a few of the more intelligent jurors. twist capacity to all and magnify in facts. To supply that which cannot be spoken. the placing of light circumstances the a tell dramatic —these upon the jury.

" George M. voice was pitched so that every word was heard without a loud or dissonant sound. 29 advocates and advocacy were different. No modern lawyer is apparently satisfied with . in — jury. without any rage. and strong. whether addressing a court or bar. ornate. a buff vest.PAST AND PRESENT LAWYERS. and after many minutes of clever preliminary acting. and the lawyers of to-day. So gentle. The great criminal lawyer. and the copious accents of legal knowledge flowed from his lips and found lodgment in every listener. Philadelphia. also of the Philadelphia of Paul Brown. and began his classic. and yet so keen so deep. and sympathetic trousers. David wore a swallowtail coat and brass buttons. tive together. address to the "gentlemen of the jury. silk handkerchief. and yet so clear. his With a gentle and graceful gesticulation. another way exemplified the difference between past and present. took from his pocket a bandanna. he bowed gravely to the Court. he carefully placed his gold snuff box in front of him. blew his nose in the true spirit of a snuff fiend. are as different as the steam engines of then. now and Place an ancient and a modern locomoand one cannot suppress an exclamation. The lawyers before the war. Before he addressed a jury. glanced slowly and carefully around the court room. In looks and size he was not unlike Napoleon. Wharton.

and yet having elements it) — of all of these. sharp. who acclaim it "a great speech. X. and not brains. half an hour. for its master and to evoke clear busi- ness results from complicated conditions: crisp. too many impatient jurors. and quick. and. to tolerate Of course I do not forget the neverfailing tendency of lawyers to talk in infinitum. a mind practical pre-eminently ability to distinguishable details. The judges now to clear his give an advocate hardly time throat. he is often encouraged by an admiring client. what is greatest. It has always been necessary to check them. such Alas! To ex- would too be eloquence under altogether absurd. as circumstances classic demand. himself unless he can shout and use passionate or furious gestures." an "eloquent presentation!" To such base uses truly have we come! I refer to Mr. Hardly a lawyer ever believes he has . or audience. And after "a great physi- cal" effort (as some wit has justly pronounced of voice and body. nor profound lawyer. too rhetoric! much business. classical scholar.30 THE AMERICAN LAWYER. of New York as one of the best illustrations of the modern lawyer neither an eloquent nor finished speaker. In all ages the habit to talk illimitably has ex- isted. that he pect may have twenty but brusquely inform him minutes. or an hour. conditions there are many cases on the calendar now.

both in the courts and the legislatures. was superseded by arms. which. or by violent denunciation or inflammatory appeals. or of slick and measured entreaty. had been kept alive by the friction between the States. as a first consequence. regardless Still. . rhetoric. or really oratorical effective oratory. cases. said enough. 31 the the most of his time. closed the era of pure constitutional discussion. and how can you blame him for not imitating David Paul Brown? Circumstances truly alter Of course I am speaking of civil trials. It is sometimes heard. I may add. functions the very head and — — . all that he has to say. and. of logic. He uses just those particular weapons which will catch the jurors. The truth is that the profession of the law. or in a calm and seductive voice. When that mode the noblest of his front were gone.PAST AND PRESENT LAWYERS. modern jury lawyer makes He bangs away at the facts anything he simply hammers into his halfhour limit. reached its zenith its Augustan Era —at — the commencement of the Civil War. in its great aspects. and it was the most august function of the lawyer. It is not to be expected that lawyers should escape the influence of a war. as a purely intellectual and classic. That discussion. scientific pursuit. to engage authoritatively in of controversy it. in tones of thunder. In criminal cases there is still room for real and order.

As a great scholar and lawyer wrote to me in commenting upon the difference between past and present: changed conditions spread The conscience of the Nation was merged in the pride and glory of sense of "A over everything. until. the change set in. Wealth has stolen his social position. intellectual and scholastic attainments no longer win because they are rarely found combined with a practical and adaptable mind. Then came the influx of wealth. gradually and imperceptibly. however deserving. the creation of new sources of prosperity and power." Slowly and noiselessly as the falling tide. the lawyer has been deprived of most of those splendid qualities. mere fractions of many separate communities. who were without a local center as in England. but were split up into parts often incongruous. which once made his office so illustrious in the land. The sensitiveness as to the intellectual value of high legal attainment and effort was lost with the circumstances which had made them necessary.— 32 THE AMERICAN LAWYER. the Bar presented the spectacle of distinct bodies of men who. had been shorn of their highest centralizing motive. every day becoming more numerous. As opposed to these. the growing sense of empire. the cultivation of . successful war.

and position of the lawyer.PAST AND PRESENT LAWYERS. however. in the char- acter. much of his professional occupation and emoluments have been taken from him by combinations largely composed of laymen. in the legal profession. by "Title Searching" com- and collection and other mere business whose principal alleged merit towards the community is cheapness. that his aristocratic sipated. — between. or that his general influence has been entirely disI affirm. often cultivating every kind of equivocal quality as the means of success. . 33 eloquence has fallen into desuetude. rather than a deep and accurate knowledge of the principles of jurisprudence but always an exceptionally good — business man. influence. but even there the old guard of lawyers is succumbing to the influences which have wrought the change elsewhere. The change more vividly country. and is disappearing behind the hills of the past like a setting sun. and the lawyer stands before the community shorn of his prestige. agencies. clothed in the unattractive garb of a mere commercial agent a flexible and convenient gopanies. I do not mean to broadly assert that the calling of a lawyer has lost all of its honorableness. and social prestige has disappeared. are illustrated in the large cities of the In the rural districts some traces of old professional life still exist. that his.

and influence. has sprung up. manners. moral and intellectual standard has been lowered. which the old regime possessed.34 THE AMERICAN LAWYER. and profound gulf has been made between the past and the present. a new legal epoch has been born. which his office entitles him to wield. a new race of lawyers. no longer Since the war. . and thought from our legal ancestors. and that the natural and legitimate influence. different in education. and out of the prolific womb of national life. lacking the dignity. a deep exists in its proper vigor. learning.

trades. not only in the national characteristics. and habits of the people. THE STAGE. in the habits. and political No one can accurately fix the evolution. and noticeably 35 . in national life. manners. THE LITERATURE. to the sound of trumpets and martial music. and it is only when they are fastened upon us. that we are deeply aroused to their existence. but in all proIt fessions. social. or New epochs by written and the declarations or proclamations as polit- ical principles sometimes are. but noiselessly and gradually grow out of prevailing conditions life. like the parasite upon the tree. was followed by changes of the most radical nature. are not ushered in and morals ners. cannot be overlooked that the new historical era.CHAPTER IV. They like — cannot be traced to a certain time and place. — commercial. SINCE THE CIVIL WAR. Declaration of Magna Charta Independence. of birth of national habits. inaugurated in this country by the Civil War. AND THE BAR. THE PRESS. and businesses. manof the people.

before and after the war. pictorial magazines. the Stage. because the throbbings of the telegraph give out every minute the news from all quarters of the globe. in a metropolis. Contrasted with those of forty years ago. They are of the Bar. but he has photographs of the prinaccompanied cipal actors in these occurrences. daily all chronicling the events of the world. every morning. As I have said. histrionic art. are generally sympathetic. because a brief comparison between these last-named occupations. It may at least serve the purpose of an illus- tration of the changes which have come over us. The reader is furnished daily with not only a full statement of the doings of the whole world. the newspapers are almost unrecognizable. upon the breakfast table. and this huge journal is placed.36 THE AMERICAN LAWYER. journalism. so in the professions of law. with of fiend- ish glee. the organs of public opinion. and Literature. like those of the body. and then sold for a mere song. by graphic pictures of the events. The avidity for news — — . illustrated. now huge. with more or less accuracy human and divine affairs —running the whole gamut —entering. into the minutest details of social and domestic life. What affects the one. to advert to the Press. quickly communicates itself to the others. furnishes a proper analogy and prelude to a study of the condition of the legal profession. and in general literature.

His genius is reflected — in the advertising columns. It is part of whatever anybody has done. every event calculated to attract the notice. however. alas. in sensational colors. becomes subordinated to the greed of the age "put money in thy purse.THE PRESS. The editorial has given way to the news column. have by no means vanished. and which will not unfavorably compare. and the real purpose of journalism. or promptu productions frequently appear. Imis ravenous. Advertisements are seduced from the shopkeepers and business community by a large circulation. is to make money." The personality of the newspaper owner never appears. through the advertisement columns. which are strikingly brilliant and clever. 37 our business to knowis going to do. THE STAGE. and the large circulation is gained by portraying. humor or fancies. with the choicest morsels of the best classic writers. THE LITERATURE. not always Attic. The genius and talents of the newspaper writers. The most paper is is striking feature of the modern newsIts function its diversified occupation. no longer simply confined to printing news and animadverting upon public questions it is no — . however. as mere writings. or arouse the pas- of the masses. inimitable and illimitable. if tickle the sions. Wit and humor also abound in the press. in the daily and weekly press. The central aim of the newspaper proprietor.

literary. They hunt down criminals and boldly usurp every duty of the district attorney.38 THE AMERICAN LAWYER. sporting. and the plans and details are blazoned . and policeman. magistrate. the left hand doeth. courts of is justice. and espouse the rights of the public in the civil — — money for these establishes na- detective bureau. and perform manifold deeds of genuine benevolence. self-supporting newspaper. now an ties. politi- put motion by individuals to make money. that in their manifold undertakings the newspapers are not always inspired by the true spirit of charity or The right hand not only knoweth what justice. a bureau. of philanthropic measures. they establish summer and winter homes for the poor. and often to advance personal and political interests. They furnish the sick and fever-heated needy with ice. but the whole body is advised thereof. and the hungry with soup." gives promotes all kinds of charieleemosynary and other public works it It — and collects vast it of it purposes awards tional landmarks it — is an intelligence office and The journals outvie with each other in their advocacy. and financial support. and miscellaneous bureau! — in It must be admitted. longer a guide and a teacher. institution —the head sums prizes of A newspaper is which is a "busi- ness manager. not a journal! —a self -estab- lished. A newspaper as thus con- ducted cal. however.

and no matter how brilliant. is still felt to be held by a kind of sufferance. Individual security. treat the recommendations of the journals with a feeling akin to contempt. and in this and a thousand other ways abuse their power by hounding the public into doing likewise or seduce contributions from them by tickling their vanity. and parading the names of the donors in out. make — conspicuous parts of the paper. gradually. I need not speak of it. An immense capital is now required to conduct one of these metropolitan bureaus. impossible for it is practically him to establish and maintain a newspaper. without great financial resources. have become so frequent. And the privacy and sacredness of domestic life! It is an open book. They lavish and ostentatious gifts. THE STAGE. talented. and death-like headlines. if not often directly invaded. its wails and shrieks. of its departure from the real and noble purposes of the Press. THE LITERATURE. to weaken its influence with the people upon many public Its opinions and conclusions are bequestions. satiated with sensationalism. 39 and "trumpet tongued" to the world. The readers. its utterances are looked upon with amusement or suspicion. It is natural that when . that they are fatiguing. coming gradually less effective.THE PRESS. and eloquent a writer may be. The effect of the change in journalism. has been.

in its pristine condition. the chief glories of the drama. In going to a theater. should be one of the most powerful organs of public opinion. they must lose all moral force as leaders or teachers of public thought. and as the rule. have been entirely divorced from it. the best we can hope to see is some adlish? . through the terrible ons of ridicule. In its proper sphere. literature and poetry. The aim of the proprietor is to catch the advertisers is —that of the advertisers to catch the public. genius. The new drama is almost entirely realistic and sensational. In a word. the newspapers are transformed into advertising bureaus. or wit. The stage.40 THE AMERICAN LAWYER. The "theatrical world" also discloses radical changes. The ability. There are many exceptions. talent. and directly or indirectly. condemns vice weapand maintains the supremacy of the law. but even they have not wholly escaped from the prevailing influence. actors. of the but an apprentice to the stage who wished to make money to be popular would hardly neglect to cultivate dancing and singing as principal accomplishments for his profession. satire. And who goes to the theater to study pure Eng- — — In the main. of course. a community discovers that newspapers discuss public questions for the pure pecuniary benefit of their owners. exist. it holds up to approbation the lives and acts of virtue.

vulgar witticisms. He must "hit" that And the beautitaste between wind and water.THE PRESS." something in comparison with which the rudest Thespian buffoonery of the ancient time was respectable and interesting. which is expected to compensate for any poverty of higher attributes in the actor or the author. The actor has hardly a distinctive chance to shine. comedy. closely following prevailing fashions of belles-lettres. or the waste-paper basket. Need it be speciAcrobatic feats. with an ambition to do something real for his age. we have to "draw. he must be tricked out with the appliances of modern "art" before he can be Descending lower. covering almost every and habits. But the theatrical manager knows the public taste. Shakespeare cannot any longer stand on his own unaided merits. comes general literature. trivial puns. 41 mirably 'arranged spectacular effect. books and periodicals are yearly . Myriads turned out upon the world. Lastly. are frequently consigned to the flames. The sensual and material tendencies of the age are nowhere more strikingly illustrated than on the stage. and vaudeville. tossing. and a senseless display of tumbling. THE STAGE. — — ful. THE LITERATURE. all hopelessly mingled together which tend to convert the actors into clowns. ennobling thoughts of a dramatic filled author. fied? made and shuffling upon the stage tragedy. majestic.

It is one of the wonders of the age to see how many men and women have devoted themselves to writing books. but Pickwick had the felicity to mingle with. judgment tempering into sobriety. or to say it in such a way that it may appear to be new. that there were congregated in an acre lot. are now only incidental and very rare. The whole character of that notoriety profit." to be an author. tortured into a thousand — shapes. conceivable theme of leading human of thought. is characteristics productions the effort to say something new. and invention. but does the merit of it rise higher? The solid basis of a classic taste. geography. When Madame Leo Hunter gave her fete champetre. but one of "knack. It is no longer a question of learning. and We may species of writing which so largely influences the mental habitudes may be roughly summed up . all of them in a morning all real authors! History. these The great. nearly all of the authors of the day. Dickens recounts with inimitable humor. and talk to. expression.42 THE AMERICAN LAWYER. and science are ransacked to furnish material which. insure may yield the requisite attraction to admire the ingenuity displayed in all this. To see one author in those days was a sight to be remembered. the desire to improve (a kind of religion in the mind of the writer) by adding something genuine to the scope of human sympathy and knowledge.

one-half of the world of literature would disappear in the abyss of time. and. The few who cherish models are so much at a discount that better ordinarily they shrink from obtruding them. and much of it is good. it even invades the scientific. into thought A singular evidence of the decline of the true aesthetic faculty is the little encouragement given to Poetry of the highest order. but degrees and many and action. which enable newspapers and books to be published. and can only feel themselves degraded. 43 it has many shades and is by no means confined to mere purely imaginative productions. THE STAGE. the Press. abroad with them by the word "sensational". yet it is certain that without great poetry there can be no great poetry has undoubtedly been written in these days. while they toss the books aside. The public yields to the fascination." A practical thought. carry the tastes they form. fearing a controversy in which they cannot convince. and the standards they' impress. If the price of paper were raised to ten cents a pound. but it has ceased to be a thing which men take to their "business and bosoms. and the improvement in the art of type- setting machinery. at a price. Much of paper. fabulously low. modern litera- . THE LITERATURE. in view of the multiplicity of these productions. and. is the extremely low price literature. It affects the Pulpit.THE PRESS. as we have shown.

— 44 ture say. social. and the People. with the habits and thoughts of the people. so are the people. would receive a deadly blow and shall I the people an untold blessing? And what — the responsibility of the publishers for this The classic publishers! who dote condition? upon the best models of English literature! The same remark applies to them as to the theatrical managers. The barometers which reveal the moral. if it is abnormal or diseased. they oftener follow it." "Behold the de- . is THE AMERICAN LAWYER. and Stage are likely to be healthy. are constantly saying: "Look at the Press —how low and degraded. are the great organs of which I have spoken. In these days they rarely lead and make public opinions. and — — intellectual condition of a people. The moral sense the conscience of a nation is exposed through public opinion. — and Literature. They are usually reflective and not creative forces. Press. the Pulpit. they are apt to be demoralized or sick. These organs They change As they are. are their faithful representatives. and the owners of newspapers. There is very little see-sawing between the Press. Critics who assume to rise above the surface of things. Stage. If public conscience is healthy. They are generally upon an even keel. political. They feed the public with the food they relish and give them plenty for their money.

THE LITERATURE. and facilitate the transfers of real estate. as the other organs of public opinion. has passed from the hands of individual lawyers into lating to titles. Title companies were incor- . They are low and coarse. these companies. morals. THE STAGE.THE PRESS. fashions. and habits." Later. More than thirty years ago. unnatural. It would seem quite if striking changes should not have crept into that profession. to search or investigate titles." is is "The Bar. are too clever only when the people require them to be so. and unfaithful to their true missions. other companies were formed. They and skillful to be out of tune with public conscience and taste. intellectually and morally. Returning to the law. ture. was created inside of the profession itself." condition of the Stage. in the practice of the law. It was as quick. until the entire business re- known as and transfers of real estate. the Pulpit "Even not what it was demoralized. tastes. a few lawyers organto the ized a company. for a fee incomparably lower than that charged by a considerable body of the profession. who were "Conveyancers. 45 praved once. One of the first changes." simply inviting the people These great organs generally hold up a faithful mirror of prevailing culcritics are But such to look at themselves. They give the people exactly what they demand. to adapt itself demands of new conditions.

The characteristics of the lawyers changed. and of the intellectual the Bar has flown. Entering the offices of as officers and directors. at Law" and professional glamour of become a business. Nothing can betMost ter illustrate the change of the profession. or banking department. or combinations. to and trust all manage decedent and organized were collect kinds of mercantile accounts. agencies to real estate. titles porated to examine the other companies to estates. with the change in their occupation. these "trusts. practical promoters." created to transact. are often paid to . and law has colossal fees. These corporations. and commercial operators. some of the law firms in a metropolitan city. They attached themselves to all kinds of corporations. as commissions. individual members of the Bar. one imagines that he is in a commercial countingroom. and gradually driven him into other fields of employment.46 THE AMERICAN LAWYER. formerly performed by have at length absorbed a very large share of the lawyer's former work. solicitors. and other combinations were formed to do general legal business. It is the boast of some legal firms that their mere office expenses run over fifty thousand dollars a year. The "outdoor" or office business of the lawyer has become the most profitable. From "Attorneys and Counselors they became agents. legal all by wholesale. kinds of law business.

It is known. in which no litigation is involved. one of the most demoralizing influences of the age. Vehement protests are Political. to change his habits. The fact constitutes. perhaps. the true mission of his profession. In many transactions the lawyers are half bankers and half lawyers. and business associations are often more cultivated. Through the door of politics most American lawyers reach the Bench. others because they cannot gain a livelihood in any other Some manner. THE LITERATURE. enter created fast enough for them to politics to advertise themselves. upon the successful close of financial and business operations. The people do not seem to comprehend the . talked of. is to remove the lawyer far away from his technical and intellectual pursuits. One lawyer received more than a million of dollars as a contingent reward. from time to time made against it. than a knowledge of jurisprudence. and promcannot be inence in political and the offices fill. or neglect. THE STAGE. and a fee of one hundred thousand dollars is no longer regarded with astonishment. by the voters. but in vain. Of course. if not sanctioned. Thousands of lawyers seek livelihood life.THE PRESS. by the young lawyers. A vast contingent business has been inaugurated. criticised and yet tolerated. and to cause him to forget. the inevitable effect of these employments. 47 them. social.

without political influences. The qualities of audacity and immodesty.48 THE AMERICAN LAWYER. if they do they are In general the best equipped lawyer. the majority have not the necessary accomplishments. bar is indescribable. supplant those of learning and fitness. The man with real accomplishments. evils supervene. refuses to enter into a contest for the judgeship. or a proper concepLaw then becomes more tion of their duties. or indifferent. Lawyers become schemers and office-seekers. It removes But all incentive to study and real ambition. The people are the eventual sufferers. and delays and other manifest which the people evenIts demoralizing influence upon the tually suffer. the approbation of their brethren of the bar. is not strong enough. their own merits. nor care for. to correct an evil which destroys its own prestige and morale. for all of bined influence of the bar. and spend their time in pulling the party ropes. by . has no more chance to become a judge. It lowers the respect which lawyers should have for the judges. than he has to turn water into wine. beyond all of these things. it shows that the comor less a chance. seriousness of the practice. If a lawyer can obtain judicial position. and the race is nar- rowed down to those who are willing to proclaim most loudly. because while some good men are chosen. in character and learning. They neither demand.

and what he should be. THE LITERATURE. I believe the evils could be largely reduced by holding separate elecThe question of the fittions for the Judiciary. why should he not become the inseparable companion of some friendly Judge? I am endeavoring to show what a lawyer is to-day. What he should be. and the merits of judicial nominees are lost sight of under.THE PRESS. should he take the more rugged. 49 attaching himself to a political organization. trying. The difference between what he is. why should he weary his brain and mental faculties with profound or steady intellectual occupation? If he can obtain references. receiverships. THE STAGE. of a civic. or church. Keeping them in open juxtaposition is the only real means to advancement and reform. As it is now. and path to professional glory by hard and laborious legal study and cultivation? If the lawyer can obtain clients by becoming a member of a social. what he is the always existing actual. the elections are general. In the selection of judges. and patronage by cultivating the Judges. uncertain why — independently. or eleemosynary association. or political club. is the never to be realized ideal. . more important D issues. instead of tying himself to books. ness and character of each candidate could then be. what are regarded as. examined. is as wide as the ocean. We must study both.

they should be taught the real mission of the lawyer which includes profes- To — sional ethics. the nature and duties of a legislator. judge of the quality of our lawyers. the making of a These fundamental requisites to full lawyer are almost entirely all overlooked in of the courses of education offices. form their duties. they should be taught to cultivate a moral sense. the nature and duties of citizenship. but above and beyond everything else.CHAPTER V. As the lawyer is trained. to know the course of studies they pursue before they are admitted to practice. it is necessary to know of what. the nature and object of law. To produce lawyers who can perso he grows. they are made. without any 50 followed in law . AND HIS OATH. THE EDUCATION OF THE LAWYER. and academies or colleges. Lawyers are made up to be mere instruments for their clients. to use a commercial phrase. and how. AND THE CONDITIONS UNDER WHICH HE IS AUTHORIZED TO PRACTICE. law schools.

51 attention being paid to their duties to the State. and with a map of a body of law distinctly impressed upon his mind. or organic whole. it naturally appears an assemblage of arbitrary and unconnected rules. with comparative ease and rapidity. Domat. Savigny. Kant. knows nothing of moral philosophy. incredible. A candidate. 1 "To the student who begins the study of English Law. through the ordinary course of preliminary legal study. I mean based upon codithe sentiment of codification. But if he approached it with a well-grounded knowledge. professional — — — — and rarely at all. cussed. But it is true. One cannot blame the of legal study is professors. as a system. Neither Paley. where remedies are dis- 2 Austin's Lectures. pervades and influences all legal education. III 362. without some previous knowledge of the rationale of law. Montesquieu. Burlamaqui. Pothier nor even Blackstone except in a fragmentary manner or any other book or course of studies calculated to impart the above fundamental knowledge is studied as part of the curriculum.THE EDUCATION OF THE LAWYER. . The fact is extraordinary. Austin. of the general principles of jurisprudence. he might obtain a clear conception of it. or the mission a lawyer." 2 i ter See in this connection ChapX. of ethics. The curriculum fication. nay. in general.

not of the law do. . and the inquiry how it has been done will become an easy one. and which.52 THE AMERICAN LAWYER. In like manner. as it arises out of the conditions of human existence. before he comprehends What every jurist has first to its outlines. Sheldon Amos. Let him once thoroughly comprehend what is to be clone. Let him once clearly perceive how these questions have become necessary and how they are connected with each other. the general perplexity and confusion of the young student of English law arising from the lack of clear scientific guidance: 1 Phillips' Jurisprudence. describe. usually attributed to legal study. which may be pernicious and must be imperfect. but of that great system of jural problems which forms the framework of all law. is entirely due to the infatuation with which the student usually persists in exploring the details of his science. must retain its importance while the human race survives. in his own vigorous and graphic language. Mr. 26. and he will have little difficulty in understanding and criticising the various solutions of which they are capable. to itself. embodying the authority of Prof." Let one more quotation. Phillips in his able and independent discussion of Jurisprudence says: 1 "I firmly believe that the intolerable aridity. 27. is make himself master.

i before admission. and yet who affect just sensitiveness enough of conscience to interfere with their unflinching interpreta1 tion of a single law." and the "History of European Law " are given by a glad to say. is in search of. . But it is subordi- "Elements of Law. He knows not where he is going. " He hears of 'Jurisprudence' and he has a is He thirsts dim hope. the dreary register of meaningless variety. deeper. Professor Munroe Smith. more indestructible than anything he can find in Text Books of English Law. anyfor something broader." he says. that what he perchance be there." "Modern nate and collateral. 53 "It cannot be surprising. going. however. "if the young English student approaches the Science of Jurisprudence with somewhat of a quivering heart and trembling gait. or a systematic exhibition of what is universal and everlasting. Systematic View of the Science of Jurisprudence. page 508. and is not quite sure whether he where. may in He draws near. I am Civil Law.THE EDUCATION OF THE LAWYER. or in the successive modifications in the substance of law itself. or wanting to go. and place of a science. and for want of time inadequately appreciated." A candidate for the Bar must. he is often enough regaled with nothing more satisfactory than a story of incessant change. the reckless verbiage of those who have studied just law enough to confuse the spontaneous workings of their conscience. the loose guesses of politicians and moralists. that in the course of instruction of the Columbian University lectures upon the very competent person.

skims through a few legal works. at this time. and possess certain moral and educational qualifications. Besides these requisites. an ability to show. that the candidate A man is a fit person to be admitted to the Bar. may have a good character. and the American people. as intimated. The student attends a course of lectures. of legal age. The general educational qualifications are ordinary. is superficial. or. which are the sine qua non to admission everywhere. relation which lawyers bear Government.54 THE AMERICAN LAWYER. . The applicant is only required to have been an apprentice. to criticise in detail the curriculum. produce a certifi- cate from a law school or college. be a citizen of the State in which he applies to He must be practice. grammar. is subjected to desultory examinations. geography. X. 1 Let it suffice that it is entirely inadequate to produce a lawyer. A smattering of history. and of the United States. by a certificate from third persons. It is Considering the to this unnecessary. for two or three years. the examination for admission to the Bar. Moral character means. applicant must pass an examination before an examining board of lawyers. the and Latin. in some States. Chap. crams himself for a final "quiz" i See Post. and yet know nothing of the ethics and mission of the profession.

start Young lawyers. By a patented process. — — bloc. and he is a lawyer. they . When they first see the light of the pro- fessional world. without having been under the care or tutelage of an active prac- Modern methods of legal education are akin to the age. therefore. and generally. Lawyers are machine made. and the sole aim is to carry it safely through the final examination. 55 before the Examiners of the Court. They are theorists and They have no clinical experience.THE EDUCATION OF THE LAWYER. and lawyers are manufactured en titioner. they look astonishment. instructors or professors have any practical knowledge of the profession. but each of them has a large class of students on his hands. like around in brought into professional new-born babes. moreover. one can put a log of wood in a machine. out in their professional journey with a keen sense of their own incompetency. and it comes out a box of matches. They know almost nothing of the real office. withal. They are intelligent enough many of them savants and remarkably bright men. The preliminary education which they have received does not carry them beyond the point of their examination. The aim of law schools and colleges is to manuHardly any of the facture the lawyers quickly. and mission of the lawyer. and wonder why they are life so feebly equipped. and when they embark into actual professional work. students.

for anciently. This at once gives the lawyer an official position. or pursue any other legal occupation (except that of medicine. Except he shall have been brought uppe therein Seaven Yeares at occupie "And the be it further enacted aforesaid. in any place. While any person may set himself up as a car- penter. No duly certified applicant can practice the profession of law without such a license. in after the first daye of Maie next not bee lawful Misterye Arte or Occupacon. 4 (1562-63).. based upon an oath. powers. as follows: Stat. is necessary). where a certificate. which they have been licensed to hold. hereafter referred to. any occupation were required to serve an persons practicing apprenticeship. baker. as evidenced first by rules of the court. Sec. he desires. and on whatever 1 scale. for it shall worchman at this daye any pson or psons. authoritie that maner and fourme aforesaid. is XXIV. tailor. Eliz. in his relation to the court and the community. being not a tice as coming. little have —certainly no adequate —idea of the functions.56 THE AMERICAN LAWYER. orels having served as an Apprentice as ys . other than such as doo now lawfully use or exercise any Arte Misterye or except he shall have been Appren- ys aforesaid. banker. and duties of the office. agent. and afterwards by statute. nor to set anye person or woorck in suche the least as Apprentice. the policy of the law. The student must first obtain a license from the court. to set uppe use or exercise anye Crafte Misterye or Occupacon. nowe used or occupied within the Realm of Englande or Wales. or broker. Chap. for obvious reasons. as will be seen by all the Statute which I quote. has at all times been to place limited restrictions upon admissions to the Bar. 5. by Manuell Oocupacon. 1 This was not always the law.

and to advocate their own causes a privilege of which. if ever. upon payne that willingly shall forfeit and lose for every for default fourtye Shillinges every monethe. and this term is rarely. the adviser. the associate." it is generally in connection with some effort to punish him for a dereliction of duty. viz: to signify that he aforesaid.THE EDUCATION OF THE LAWYER. He starts on his professional officer of career marked is as an official —an the court." acting under the supervision and control of the latter. as styled (but for different purposes than those for which the distinction was first applied to him). stands out distinctly and separately distinguished from other trades and occupations. suitors." offending or dooing the contrary . he is now and he became. shall or will become a Journeyman. used in its original and just sense. clear. with marked good sense. or bee hired by the Yere. therefore. The courts accordingly mark out of the qualifications these officials —their own officers. and justly — they rarely avail themselves. when a lawyer is styled "an officer of the court. viz: the lawyer was regarded as the origin of this of the court. "an officer of the friend. In these days. The profession of the lawyer. Litigants 57 who might otherwise complain. and the reason for it is as strong to-day as when the office was first created. The court. are authorized to represent themselves.

in every community. the ten- dency of the courts -everywhere is not to regard the lawyer as an arm of the court. Undoubtedly they can always be called upon to assist and aid the court. so much as to hold him at arm's length —to treat him as one ready and willing to accept. can be readily imagined. aid. but if his . or five hundred. the public seems to be indifferent whether there hundred thousand lawyers. an officer to advise. that no restrictions are placed upon the number of lawyers who may practice the profession. culture. if not actually seeking. and assist the court in the administration of justice. bountifully The lawyers have increased to such proportion. the effect of which.58 is THE AMERICAN LAWYER. to furnish him with 30. the Marquis answered him that for his swine he could not spare them. Indeed. Still. are not any more numerous than they were at one time in Naples. They may be said to always rest under the command of the court. Still. is So far as any demonstrated policy are five. the lawyers are officers of the court. in existence. upon the manners. This liberality has been appreciated. or five concerned. Addison is authority for a story that when Innocent the Eleventh desired the Marquis of Carpio. they that the profession is full to repletion.000 head of swine. and esprit de corps of the profession. rights to which he is not entitled. Another feature of the subject is.

. 59 Holiness had occasion for 30. unlimited blessing to a certain class of lawyers. The enormous increase in the number of corporations has been an into a regular business or partnerships. p. with natural. with more fortunate brethren. or practical ability. They both suffer. otherwise unequipped. The fact that social or political influence. in a corporate position. in a few years seek other employments. These corporations have. to perform the work ships. 1 The Marquis must have of turning out hordes of had a large estate! Of course. many of them eke out a meager and starving existence by filling clerk- and other subordinate positions. still others. or suppositions drawn. 429.THE EDUCATION OF THE LAWYEK. I believe. their intrusted to them. 2. furnished a delightful haven to many a lawyer. have ever been made. Hundreds of lawyers. could secure him a snug been the berth. through the influence of nepotism. is as bad for the latter. finding nothing to do. has frequently sole incentive to his adoption of the legal profession. No statistics. lacking the ability. turn their professional labors and merchandise system. educational. as for society. and various by associations other kinds of occupations. as to the i number of law- " Remarks on Italy. or knowledge." Vol.000 lawyers. the effect legal incompetents. he had them at his service.

the profession will be filled to repletion. yers necessarily required to transact the business of the country. except by ordaining such rigid preliminary studies and qualifications as would act as a If candidates enrolling as legal apdeterrent. No limit should. mistaken notions of the true nature of the profession. prentices were fully convinced that to become a lawyer meant serious study and application. in the supply very largely exceeds the demand. the that.60 THE AMERICAN LAWYER. but it is generally agreed that vastly too many for such service. there would be fewer candidates. There are other concurring causes. or perhaps could. to the very class who are least qualified. so that the gates are thrown wide open. Young ambition. and access made easy. As long as a course of study exists. another book . As to its personal effect upon the and fortunes of the aspirants. My purpose at present is only to draw attention to the effect of all this on the lives community. of course. ever be placed upon the number of lawyers entitled to practice. language of political economy. all go to swell the ranks. the pride and vanity of parents and friends. to encounter the steep and stony paths that lead to genuine success. which offers inducements there are now for individuals to become members of the Bar. with a mere smattering of intellectual training. when they have passed through to admission.

might be written. and the table compiled from the same source shows the following result in ensuing decades: Year .THE EDUCATION OF THE LAWYER. It is 61 enough to say that no miseries are greater than those which follow the mistaken choice of a profession.939 practicing lawyers in the United States. The census shows that in 1850 there were 23.

the lawyer's duties to the government are of equal. importance than those which he owes his clients. that nobody is injured by this ignorance. undertaking either separately. to the State in which he admitted. At best. that any lawyer who has simply passed through the formal system of study prescribed. employ young lawyers. he frequently appears in courts outside of his State. because litigants do not. and who has been licensed to practice. of the lawyer's operations is limited.62 THE AMERICAN LAWYER. deprives of of some the Bar of the learning and respect which are so . and to turn upon the community hordes of incompetent practitioners lowers the standard of the profession. It may be said on the other side. the Federal Courts. them. who fight and struggle along many years before they attain the full confidence of clients. as a rule. as therein. but I think to the discredit — — of the profession. a if he be admitted matter of comity. own In the present inflated and complicated conit goes by the mere saying. although. if not of greater. But. he only acquires a smattering dition of the law. as I shall show. or in conjunca privilege very fretion with his law practice quently availed of. is The sphere and to or confined. cannot be presumed to comprehend any of the principal branches of the law.

towards the profession. but where the tendency of the whole system is to produce a class of in- competents. is quickly ascertained and understood. . The forms which are given below practically illustrate those of all of the States. with their results. that the student's real education begins after admission.THE EDUCATION OF THE LAWYEE. 63 necessary to enable it to defend and exercise its proper position. The profession and the community alike (indeed. the results become obvious. Great talent and strong bias. applicants and examining boards standing on exactly the same level. in this respect they may be considered one and the same interest) are entitled to some better guarantee. The oath which the lawyer takes before entering upon his official career is slightly different in each of the States. with such an initiative. in the individual may overcome all diffiit culties. and of England and France. and nullifies the influence which naturally possesses in private and public affairs. but these. This oath throws some light upon the lawyer's real functions and duties. A professional morale the student. meeting with the same quality in those who are delegated to examine. it is vain to say that the evil corrects itself. can be in equally shown to by the work accomplished previous examination.

Court as to the client . I. United States Supreme Court. as an attorney and counselor of this Court. according to the best my ability. . (or affirm. do swear that I will truly and honestly demean myself in the practice of a So- . according to the best of your and with all good fidelity. that you will use no falsehood.64 the american lawyer. uprightly and according to law. New I. do solemnly swear as the case may be) that I will support the Consti- tution of the United States and the Constitution of the State of New York. I. Pennsylvania. as well to the for lucre or malice. England. and that I will faithof fully discharge the duties of the office of attorney and counselor-at-law. and that you will behave yourself in the office of Attorney within this Court. . nor delay any person's cause learning and ability. . do solemnly swear be) that I will (or affirm. York. as the case may demean myself. and that I will support the Constitution of the United States. You do swear Constitution of (or affirm) that you will support the Constitution of the United States and the this Commonwealth.




ability, so

according to the best of help me God!




him "de

In France, the Advocate's oath of refuser les causes dont

office requires




the ancient laws of Scotland,


was required

that "advocates on the time of their admission, and yearly, should be sworn to execute their office
of advocation diligently



and that as

soon as they understood their client's cause to be unjust or wrongful, they should incontinently

from all further purAnd the law of Spain imsuit and defense." posed upon them an oath that "they will conduct themselves faithfully and will not defend unjust
leave the

same and



The oath which he takes before the Supreme him only to do that which in conscience and law he is compelled to do as a good citizen, viz.: to "demean myself uprightly and according to law;" that of New
Court, of the United States, binds

York, to "discharge the duties of the office of Attorney and Counselor-at-Law, according to

" Usages et Regies de la Pro-


" Institutes of the Civil





par M.

of Spain," cited in O'Brien's

Cresson, Vol.

I, p. 17.

Statutes of the Lords, 13th

June, 1537.


the best of





equally vague, because
well to the Court as to

the duties are not defined; that of Pennsylvania,




fidelity, as

the Client; that


will use




any person's cause for




more light upon the lawyer's duties, and upon the opportunities he has to use, disloyally and dishonestly, his office. The
Advocates' oath in France, to refuse cases which he knows to be wrong, still further opens up the

But none

of these formal oaths define the duties

of the lawyer;

they neither explain his relations

to the court which licenses him, nor to his client,

nor to the community. All of these matters are left to the imagination; and the young lawyers, when they are turned upon the community, must search elsewhere than in these oaths, to
discover the full measure of their duties.


it is

true that the courts, in the exercise

over lawyers, can, and do, punish them for such flagrant acts as, according to the customs, tastes, perceptions, morals, and manners of the age, constitute dishonest or disloyal acts; yet, there is no code of
ethics, or rules,



prepared which opens the subject

of the lawyer's manifold duties,

and teaches him

the importance of the office he





to the moral perception

of the lawyers,


and the conscience of the courts; and they are both groping in a wild and illimitable field of discretion, and necessarily of doubt.

I note with satisfaction that



be, necessarily, super-

the American Bar Association has

taken up the subject of professional ethics. Its agitation ought to awaken introspection; but its

must be taught to the students as part of their preEthics

liminary education,









officer of

the Court;"

but, as I have said, before, that



applied to
ish him.






the Courts

wish, summarily, to reprimand, degrade, or pun-

The lawyer must be an

"officer" to


summary measures
him by the

against him,

by the

Courts; otherwise

would be necessary to proregular course of judicial

ceed against

procedure, as other persons are proceeded against


civil cases by summons in criminal offenses by indictment. Originally, the courts called upon their brethren of the bar to advise them. In moments of need or doubt, the lawyer became of great importance to the Judges. But I repeat,



connection, the courts have long since

ceased to







adviser and judicial adjunct.

The law-

yers and the courts have been effectually divorced.

the courts could, at any time, restore his


and take him, as


were, again to their

bosom, as a 68

real official friend.

process which will bring into court the proudest millionaire. fact. in law. is the beginning of legal proceedings. veriest tyro in admitted. Apart from suitors themselves who are permitted to appear in their own cases no judicial action can be put in motion without the sanction of some lawyer. — commands the appearance in court of the highest or lowliest individual in the land. the action unjustified. — — lawyer approves the client's demand. the lawyer's vocation has been enfeebled. the whole proceeding utterly without merit. 69 While. is the fountain head from whose source all of client. the most powerful magnate. At the instance cial He he becomes the offiauthor and creator of all judicial proceedings. The demand may be unfounded. or cause to be issued. if not totally destroyed. date.NATURE OF LAWYER'S VOCATION. the he is the day after . or by whatever name the original process may be In called. as a supernumerary of the court. He is the sole officer authorized to cause a civil action to be begun. he is an officer of very great authority and power. apart from this fact. The lawyer's mandate the summons. or the most influenIf the tial citizen or corporation. signed to a summons. New York the lawyer issues the original man- His name. writ. he can issue. yet the defendant must obey. a legal processes flow. or in A lawyer.

secure from liability. How many of such mistakes are made." and one whose authority is hardly exceeded by that of any other official. An individual who possesses powers like those which I have described. we find that it arises from the necessities of politi- cal organization. it its machinery . or judgof government. property. Inquiring into the origin of the lawyer's power. an "officer. the as unfounded. yet the lawyer dismissed sits. suit is and expense are involved. can be. exempted from acts which often. through his negligence or design. without a right.70 THE AMERICAN LAWYER. His ordinary mistakes of law. and although after years. summon the worthiest and purest indi- vidual to answer the be. ment of the lawyer. or judgment. or rests dormant until some one sets self-acting. tittle of justice or the profession may. serenely. have caused untold mischief and damage. easily. of litigation. cannot be made the basis of a legal demand against him. the Courts computed by consulting the records of which show the number of suits — finally dismissed. known to any system Upon the ipse dixit. is forsooth. The law is not automatic. all suits are begun or defended. how many causeless actions are instituted. in his office. may in which character. demands of a professional it blackmailer.

Now. and often are.NATURE OF LAWYER'S VOCATION. and manifold civil rights are invaded where the party injured seeks no redress from the courts. regarded as an act aimed at the entire community. a law is a mere brutum fulmen. in motion. it con- being of God is sists of declarations. that given by Hooker. theft escapes notice if no prosecutor appears. The law is naturally separated into two great systems. of certain principles. —the criminal and the is civil. as applied to political existence. . violated both by individuals and communities. are the shalt not do this or that thing. human government. that which doth appoint the form and measure of working. or rules. "thou shalt or thou These rules may be. When we ascertain the reason and philosophy of the subject. who put in motion the machinery of the law. Blackstone puts it). it is When a crime committed. . we begin to appreciate the full scope of the lawyer's powers. ab— "thatthe which in doth moderate the force and power. the same we term a Law the very. but until somebody complains. and so ." lawyers. the official and authorized agents. enunciated by the supreme It says to its subjects power for (as of the State. is 71 A good definition of Law. stract. Murder goes unpunished if it is concealed. a Law to his working." In the concrete.

start the wheels of justice which bring the offender to punishment. the trial. a judgment and execution. soon as its existence is known. and all laration. parts of a suit. and district attorneys. magistrates. a complaint and an answer. The "machinery of the law. sworn officials. the execution. the appeal. this — — . the complaint. the issue. by the service upon the delinquent. before a final judicial settlement of their rights is reached.72 THE AMERICAN LAWYER. which are met with in ordinary legal and equitable actions. the of the multiplicity of interlocutory and inter- vening orders and proceedings. such as policemen. of the State. coroners. viz: the summons which brings the parties before the court. Wherever justice is administered. the lawyers intervene upon person and set the machinery of the law in motion. sheriffs. It strikes at the But when a civil injury is inflicted or property. which litigants pass through. constables. or offender it means all of the steps in the litigation what are known as the "orderly parts of a suit" the the of process — — — different stages. or dec- answer or plea. A crime inflicts a blow upon the whole autonomy people. these orderly machinery of the law must exist. the judgment. There always must be a complainant and a defendant. a hearing and a decision." does not only mean commencement of a suit.

of Now. so they operate harmoniously together. are coeval with the administration of justice. declaring rules for human and directing their observance. though in a primitive and summary way. Hence these orderly steps in a suit. the law simply would be a bundle of abstract principles. and they are designed and intended to produce as a whole. and delicate mechanism. therefore. but without the necessary appendages for enforcing them. 73 fol- Even in a barbaric state. In a civilized community these forms nicely are and delicately adjusted to each other. unless by a relapse to methods purely Without the ability to give an adearbitrary. they are absolutely essential to the correct determination of legal controversies. The orderly parts of a suit. and. if the that machinery is properly and regularly run. the law of quate remedy to the parties injured. after a fair would be nothing but a series insipid declarations. and although they are called the "forms" of the law. is reguThey study lated and watched by the lawyers. every motion the wheels of form. hearing. and without them. exact justice between litigants. . fast or slow. these forms are lowed. are necessary and substantial parts of practical jurisprudence. which run after they are set in motion.NATURE OF LAWYER'S VOCATION. conduct. all of the intricate they arrange the movements.

He is a kind of judge preliminarily He is — inquiring into his client's rights and duties. between the institution of a suit and a Judgment. is amazing. therefore. workmen. when one remembers that Courts exist to render speedy and exact justice. no matter how small or great the amount. the fencing. the his use the word "Subject" advisedly. Directly the machinery is set in motion by the lawyer. in his relation to Law. The clients disappear.74 like skillful THE AMERICAN LAWYER. and his office assumes an importance which superficial inquiry would not ascribe to it. The foregoing suggestions introduce the lawyer in his first great official relation to the community standing between the Subject and the — I Law. in a cloud of technical sparring and conflicts. the suit becomes one of public concern. and the lawyers come to the front. very great. with their motions and counter motions. the put in motion. in advance. The moral responsibility of the lawyer becomes. they learn to direct. however much own creation. The legal which is had under a Code. primarily charged to determine. . is may be the work of Upon law the lawyer's advice and judgment. as it exactly describing the citizen. whether his client has a just claim or defense. troversy is lost sight of. and whole course of the law. until the real concontrol.

or jury. ally appears. involved. all the 75 A judge. is the law and lawyers that suffer most. For. Law is "humbug" — . and the evil effects are felt all through the body of the law. In the commencement of need. Client and counsel become involved in a common atmosphere of suspicion. largely and sincerely blended with contempt. suits. he prostitutes and brings its administration into disrepute. or principle. if from ignorance. a sense of its in adequacy to its ordained purposes. of fact and truth. and patriotism. or the evasion or denial of a legal claim. or indifference. He poisons the founand contempt tain of justice at its source. therefore. the lawyer has of honesty. degree of moral reprobation attaches to their In the ordinary judgments of men. it actions. he defeats the objects of the law. from the wheat action. exaggeration and doubt. It rests prudence.a NATURE OF LAWYER'S VOCATION. to separate the chaff of fraud. in the settlement. learning. fulfill to the former. The importance of the whole subject to the lay community is apparent from this purely material aspect of it. of dishonesty. to the less latter it brings a shallow reputation for clever- ness. eventu- forms of the law are involved and the public are taxed for the general expenses of the courts. with him to preserve the purity of the legal system. to the effects of his he advises the commencement an un- just suit. and a greater or its forms.

except that he is better protected. and the lawyer's tracks and identity are swaUowed up in the personality of the former. should be fully instructed. prohibit him from uttering one word. The lawyer's opportunities for good and for evil. are brought into play. client. chicane. and more to be feared. are powerfully illustrated. and is not responsible for his client's morals or frauds. deflect the course of justice. not of paramount importance that individuals who are clothed with such extensive powers. not essentially different from other scamps. insidiously and secretly. mere game the office. And both public policy. the pretenses of the the lawyer's are frequently own work. and defraud the law. but they are made in the name of the His education. and express statute. in all of their duties and functions. of lawyer a cunning scamp. the lawyer can always. the defenses. all his knowledge of the scope and influence of his profession. passed in professional counsel. Sheltered in the garb of his The client. pleas. in a litigation.76 THE AMEEICAN LAWYER. It is hard to detect him. he is representing another's interest. his training. true objects. before they are permitted to Is it exercise them? Picture the baleful influence upon the law and . in each and every step.

in the middle rank. by liberal of the scope and study or association! Picture the lawyers training themselves in a school of dishonesty. and objects of their profession. trickery. who pays most for the service. minds not elevated. ability. I do not undertake rests . can be found many lawyers whose services are sought only to enable guilty men to escape punishment. and every device of cunning and deceit. is a good illustration of one phase of the subject. resorting to to gain their end! Do such lawyers exist? Do such practices prevail? Unfortunately. 77 society. with not ennobled.NATURE OF LAWYER'S VOCATION. in the lowest rank of the profession. and of their contracts. selling their knowledge. clothed with so much power. vilify. and such talent as they may possess. experience. prostituting the forms of justice for gain. defraud. The formation of the Northern Securities Company under the laws of New Jersey. only to defeat and evade the legislative will and public policy. badly educated. and defame. diverting and stopping the machinery of the law. A great upon the financial moral responsibility promoters of that Company. without penalty or to the client damage. only to show their clients how to cheat. and chicanery. ignorant of the principles of law. In the first rank. only to open a door for others to avoid the consequence of the civil law. yes. of lawyers.

Company was and sentiment of the country. The promoters sought to thwart the laws those States. A consolidation of the railroads. Addyston to quote. v. and organizing there. Not an individual of really interested in the affair resided in New Jersey. Assn. was a clear attempt to evade the laws of the States through which the roads ran. The promoters were. .. or the slothfulness. hoping. through the ingenuity of their lawyers..trust law of the United States stared them in the face in earnest protest against their acts. blamable in this matfor they took their chances. 175 U. moreover. not a dollar of actual business was to be transacted there. Joint Traffic 211. & Steel Co. measure or partition it. Freight v.78 to THE AMERICAN LAWYER. U. embraced in that scheme. ter. S. and State and Federal 1 i U. S. until their acts were Supreme Court of the United States. U. not a penny's worth of property involved was located there. S. by going to the State of New Jersey. S. v. Yet they perseoverthrown by the vered. to evade Statutes. TJ. 505. 166 Pipe S. and others not necessary Assn. neglect. 290. 171 U.. there were several clear decisions of the Supreme Court of the United States. under the shallow pretense that the Northern Securities a mere holding Company. The Anti. which showed them that their work was illegal. and against the general public policy. S. or ignorance of public officials. primarily.

79 The decision of the four Judges in the lower court was unanimous against the Northern Securities Company. in favor of resist National and State Almost every law of that State. were overlooked. vital aspects of the question. The State coffers have been enriched by are it. through majority shareher corporation . If the Northern Securities Company had been upheld as a legal corporation. as would have enslaved the finances and commerce of the country. speculators. and each year new features to added to its corporation laws.— NATURE OF LAWYER'S VOCATION. on the part of the Government I do not — — it was inadequately presented by design from it but. to cheat the general public policy of the country. policy. holders. not involved in a mere technical discussion. stand as a shameful monument. if the case had been thoroughly presented. and New Jersey. or color. corporations. themselves. The statutes of New Jersey. say far — Examine its charter for confirmation of this result. to the cunning of the lawyers in an effort to public policy. and although this judgment was only ratified in the Supreme Court of the United States by four votes against three thus giving some pretense. has been craftily de- signed and built up. to the original scheme yet this dissension would have been avoided. in the hands of the promoters of the company. it meant the placing of such untold power. protect promoters.

Public opinion is always on the alert. In the case of the counselor. he acts in the under the public gaze.80 law. he. are accordingly limited. is a perpetual asylum. His opportunities for accomplishing evil. in the advice which he gives his client. to which the lawyers can resort. it is the attorney. of all kinds — of practices. against unjust and illegal methods or results. or sophistry. away from the public gaze his machinations are in the dark. Shrouded in unlimited discretion. law. an asylum. and general sentiment of the community. herself made Finally. and are insidious and secret. for justification. open — persuasion. by skill. overcomes the judgment and minds of the courts or juries. The business of the former is carried on in his office. but himself. and judge-made. art. "1 was mistaken in the law or practice. how wantonly he is violating his duty. no one need know. who can and does work the greater harm to the community. It lies in his power always to say. experience." The confused and contradictory condition. unjustly. to those cases where. have sought refuge from the public policy of the law. however. where rich and influential men. and by exposing and protesting. has THE AMERICAN LAWYER. it . as distinguished from the counselor. and accumulation of statute. in the court.

many dishonest. they bury themselves within themselves. One of the profoundest and most powerful reasons for divorcing the two branches of the profession arises from the above considerations. where there are solicitors and barristers.NATURE OF LAWYER'S VOCATION. as a corrective. The work of the attorney must. and when the time comes. Insensible or scornful of extraneous opinion. and necessarily would become abortive by the refusal of an independent coun- selor to present Counselor" are although they still preserved in this country. attorney would no longer be allowed to or defend. from the feeling of immunity from danger. his own cases in court. necessarily. grow and strengthen. He acts as a breakwater between the attorney and the court. A litigant would be thus compelled to cross two The barriers before he could reach the court. represent practically one office. who. and thus blindly invite a sometimes very rude form of resurrection. The names them. that all abuses inhering in any body of men. with which they may be practiced. 81 acts as a counterpoise to the meretricious influ- ences of the dishonest advocate. they are presented to the court. sits in judgment upon the facts and law before so to speak. It is to be remembered. prosecute. "Attorney and F . pass through the hands of an independent counselor. or illegal claims.

his learning. which do not grow — out of misunderstandings. to be settled in court. therefore. As it is counsel. directly under the influence the In both relations. in First. or contests. He is also constantly called upon to exercise the best qualities of trained diplomacy. free scope to his best is given endowments. and eloquence. lawyer is both an attorney and counselor. —where of he acts judges. as a purely advisory relation to his client. but. and. the mouthpiece of his client in court. the THE AMERICAN LAWYER. transacted outside of court. as attorney in fact. the attorney's practice comprehends all the business of the lawthe precincts of the yer. the lawyer draws to himself a multitude of other employments. in becoming generally understood. second. He is employed as agent.82 Here. as a higher capacity. . not strictly of a technical nature that is. in the negotiations attending the settlement of difficult questions. As popularly understood. have to be considered. experience. genius. whose excited passions. the word implies. in the best interest of parties. at every step. By virtue of his official character as attorney and counselor. wisdom. he acts in a more limited.

but by positive statutory rules. and he becomes an important factor in moulding his client's final judgment. cleverness.NATURE OF LAWYER'S VOCATION. He is family. The confidence thus reposed is guarded. That it shall continue in its integrity i is an im- Ante. experience. not only by the moral etiquette of the profession. judgment. A large share of this part of the lawyer's has been gradually usurped by corporations. and. in which his co-operation and counsel are not solicited. 1 tensive field of employment. executor. 46. ness. and stages of business transactions. 83 and in a thou- sand and one other fiduciary relations. p. ters. who generally repose their lawyers in busi- the utmost faith and confidence. removed from in his The lawyer appears everywhere. and other private and the trusted adviser and friend delicate mat- of his client. and is often consulted when the thoughts of the latter are in a chrysalis state. however. which the ramifications and necessities of business create. are constantly drawn upon by in his clients. control. and there is all hardly an event of any magnitude in commercial affairs. administrator. . trustee. and skill. It constitutes the most sacred part of the lawyer's functions. as I have shown. His knowledge. an exbusiness.

by vulgar and indiscriminate abuse of the character and functions of the lawyer as such. that it behooves should not assist breaking it down. and it society.84 portant in THE AMEEICAN LAWYER. . for its own sake. interest of society.

they were the chief authors of the Constitution of the United States. it becomes of parainterpreters of mount importance functions of to consider the duty and a legislator. The forty-five State legislative mills (another has been since added to the list) are constantly grinding out Statutes. Easily. of the lawyer's relation to the community. useless and incoherent Statutes. AND IN OTHER CAPACITIES. In the analysis. As I have said. which a lawyer holds to the community. most of is them engaged 85 and the Congress of the United States . and of all the State Consti- tutions. the most interesting relation. is that of a legislator.— CHAPTER VII. the natural and necessary the guardians of it. From the commencement of the government. THE LAWYER'S POLITICAL EMPLOYMENT AS A LEGISLATOR. the lawyers have absolutely dominated in the Federal and State Legislatures. They are it. outside of his technical occupation. therefore. THE DUTIES OF A LEGISLATOR.

he should know the relation which a citizen bears to the State of which he is a — member. then. This state of affairs produces two principal results: first. as well as all of the branches of the law. He must understand the origin and purpose . Primarily. it creates such uncertainty in the law as.— 86 in THE AMERICAN LAWYER. —the legislators. The subject requires separate treatment. millions each year. that the jurisprudence of the United States is in a condition approaching inextricable confusion and doubt. What. To remedy these anomalous conditions. many. that the responsibility for all of this unnecessary accumulation of Statutes rests somewhere. and criminal. is applicable to constitutional. the same occupation. it entails upon liti- gants and the Federal and State Governments. enormous expense amounting to many. mark cial. the lawyers. Laws have accumu- with such rapidity. in this connection. to make justice a thing of doubt and chance. I can only say. it is necessary that we should have legislators who understand their functions. the laws. commerother. The related. it must be charged to the individuals who make . practically. are the duties of a legislator? What are the qualifications which he should necessarily possess? Primarily. and. in the second place.

but he can never enjoy natural or absolute liberty age. relinquished his natural condition and liberty. without any choice or consent of his own He may afterwards expatriate himself. practically. it. briefly. when a man was assumed to be an absolutely free creature unrestricted and un- — — — — controlled in his actions — —we find that it impossible for for his him less to live in a savage state. and. he eo instanti. — THE DUTIES OF A LEGISLATOE. at all. of society ical 87 of the principles which underlie politgovernments Federal State Municipal Looking back into a period before society was organized. consciously. and happiness. wherever he is born. in the effort of the mind. was and own protection. in fact. that. he more or but voluntarily. never did exist. one is remitted to an age of poetry and myths. becomes a subject of some government. comfort. to conceive a condition of natural unrestrained liberty. or wherever he .. his fellow and sought refuge men. For. in organized association with This. he can never divest himself entirely of civic homfor. when a person is born into the world. natural liberty has ceased to exist — perhaps. is the supposed origin of human government. and transfer his allegiance to another State. So deeply has this view been rooted. in the human mind and experience.

Apart from the impossibility of tracing the origin of Society. the legislator must go back to the supposed origin of the social compact. substantially. we can appreciate that most admirable definition of civil or political liberty. because this forms the proper and only true basis of legislative operations. notwithstanding this fact." Or. "In return for the abdication of your natural rights and freedom. very simple. and the latter gives allegiance. The State rights are his advantages." Hence. In a word. I will protect you and your family and your property. agree that there implied contract self to become a part all of the State — — I will support the State in emergencies. .88 THE AMERICAN LAWYER. withal. he is always amenable to some government. as Burke says. by Lieber: "The natural liberty of mankind so far restrained by human laws as is necessary for the good of society. may roam. every babe is born into the world with a political halter around its neck. his says. by which the former grants protection. is an between the sovereignty and the individual. But. as is necessary to protect you. The citizen says. This original social compact is very important. and your fellow citizens. and. in substance. "I will give up my natural liberty I will bind my- writers all. and I will only restrain so much of your natural liberty." in reply.

89 as is "Only necessary so far restrained for by human law of the good is society!" Conse- quently. protection. not the people . for the Government. not partial) benesary for fit No or advantage. The fundamental idea is> to leave the citizen with as as is much natural liberty. Here is the secret —the corner stone — of all legislation. Government exists for the people. unequivocal (not speculati-ve. individuals evade and escape from the operation of laws. for his own. that country The is best governed which is least governed. or distinct. "Is this proposed law necessary? Is it just? Is it for the true interests of . He must ask himself. and wherever these elements exist.THE DUTIES OF A. on the contrary. the citizen liberty. to make as few laws as possible for. It introduces confusion and uncertainty. laws are to be passed except those necesthe subject's protection. but. compatible with the interests and protecIn fine. except so to enjoy all of his natural as restraint is far necessary. annuls and destroys its efficacy. A multiplicity of laws does not produce good government. and his fellow men's. in all normal and sound conditions of society. Hence a legislator must keep constantly before him the origin and purpose of the social compact. tion of the other members of society. LEGISLATOR.

1799. it — is not always involves a knowledge of the existing institutions and laws. and whether the constitutes new or proposed law remedy. a lawyer requires who would faithfully adequate an — i"De ed. laboureurs. these questions. unnecessarily. Basle. avec 1' object du legislates. elles doi- vent se rapporter au degre de liberte que la constitution peut souffrir. or the greater portion of them? passing it. the people. Livre I. a la religion des habitants. an easy task or decide. a sa grandeur. a sa situation.* 90 THE AMERICAN LAWYER. 1799. a leur nombre. a leurs moeurs. Enfin." To answer. the mischief involved. avec l'ordre des choses sur lesquelles elles sont establies. au climat glace. and its relation to the others and the whole. ou tempore. a leur commerce. L'Esprit Des Lois. Ill. brulant. 1. . c'est dans toutes ces vues qu'il faut les considerer. au genre de vie des peuples. a leurs richesses. chasseurs ou pasteurs. elles ont des rapports entre elles. a la qualite du terrain. What learning what experience—what industry. a leurs manieres. p. Chap. 106. elles en ont avec leur origine. any : portion of the natural liberty of the subject?" As Montesquieu says "Elles doivent etre relative au physique du pays. a leurs inclinations. By shall I take away. A." Vol. a study of each great leading industry and interest.

would have been avoided. who under- stand and laws. yet with every abatement that can be made. the legislator must — 1 — — » " Sharswood's Legal Ethics. He would acknowledge that legislation. the field of the lawyer's action is still enormous." Having satisfied himself of the necessity. how many thousands of books and statutes which now encumber the shelves of the Law Libraries. the justness of the law. springs from the Bar. How many- which now confuse and perplex the lawyers." p. the utility. and judges. exigencies of society or situation. fulfill 91 the duties of a legislator! And contrasted with this standard. rules had been observed in the education and selection of legislators? "Let any man look upon all that has been done in this department and trace it to its sources. 25. fulfill their real duties.THE DUTIES OF A LEGISLATOR. would have never existed if these fundamental." And if this dictum be thought too broad. que sera-ce d'un grand legislateur. Nothing instructive and interesting in this conis more nection than the seventh chapter of the second book of Rousseau's "Du Contrat Social" "Du Legislateur" in which he exclaims: "Mais s'il est vrai qu'un grand prince est un homme rare. popular demand. . or State Legislatures. but simple. good or bad. how deficient the modern legislator is! How few there are of legislators in the Federal.

en general. experience. To sum up: legislator ness. 1826.92 THE AMERICAN LAWYER. Chap. que c'est un tres grand hasard si celles d'une nation peuvent convenir a une autre. what words shall be selected to express accurately and the thought. he must know the in the light of the social 1 described. Loi. est la humaine. 135. en tant qu'elle gouverne tous les peuple de la i " La " Elles doivent 6tre tellement raison terre." Livre I. if a new law be proposed. perfect clearness. What is the old law? sity? What What is is the evil? What is the neces- the remedy proposed? From clearly the infinite catalogue of language. with the Federal and State Constitutions. an existing law be proposed. ed. precision. This involves an accurate knowledge of these instruments. Another important feature of an American legislator is." Montesquieu. Ill. "DeL'Esprit Des Lois. must here be observed. propres pp. the facts. . the its just- must determine its necessity. then prepare Here he has need of the greatest skill. and knowledge. brevity. Why is it that the most profound lawyers shrink from drawing statutes? Because there is no task so delicate and difficult. to be covered by the legislation? Simplicity. it. that he must compare all proposed laws. the principle. civiles et les lois politique et chaque nation ne doivent etre que les cas particude liers oil s'applique cette raison ' au peuple pour lequel elles sont faitres. humaine. compact above and of all the other considerations If an amendment to bearing upon the subject.

old law. in the State of in the New York. is in conflict with section 18. — Act unconstitutional v. and is void. v. or repairs made upon a vessel engaged in foreign commerce. a large number of cases which show how constantly the courts have been occupied. 57. . 1 1. voluminous. alone. 4.— The act of 1862 providing for the collection demands against vessels. L. Bohmer Haffen. since 1862. 1862. I cite." "An act to authorize the construc9. Y. Unconstitutional so far as it authorizes the seizure and sale. 48 N. of the Constitution of 1846. so far as it gives a lien for supplies furnished to. The People ex rel. Chap. Kermit. 59 N. 1863. L. 93 and the remedy.THE DUTIES OF A LEGISLATOR. and tracks in the towns of West Farms and Morin part. 390. extending the term of the incumbents of the office of justice and clerk of the District Court of the eighth judicial district in the city of New York. Chap. unmistakable. below. without judicial process. Chap. is the cause of the unwise. 1866. unnecessary. of article 6. 554. Sec. and unequivocal must. and he be able to put the proposed legislation into clear. Y. 161 N. 302. v. Nearing. Bull. Chap. is unconstitutional. of chapter 217 of laws of 1866. 1 work of declaring Statutes unconstitutional. 459. Poole 3. 217. L. — Eockwell 2. the mischief. all ute books and piles up our law books mountain high. 482. of animals found trespassing within a private inclosure. 1862.— Section 1. v. language. 361. Y. Y. 35 N. and a bond given pursuant to the act to release a vessel detained by virtue of an attachment issued there- of under. tion of a railway risania. is void. finally. and unconstitutional legislation. L. which now fills our stat- The failure to observe these rules.

v. has the effect to deprive him of his property without due process of law and is unconstituL. on the part of the owner of the property to be assessed. People Allen. 8. the aggregate adjudications. of the Courts of all the States of the Union. 1869. —A — N. Co. Chas. L. not exceeding $10. & O. — People ex rel. Chap. 9). v. Y. 4. 404. 10. for the pur- — . 42 jST. or an opportunity to be heard. L. 43 N. etc. The provision of the act 10. L. Chap. the court may increase or diminish the compensation. to a like effect. Laws of imposing an assessment for a local improvement without notice to. school fund. 7) declaring that the compensation for property taken for public use shall be ascertained by a jury or by commis- — In re Vil. 1869. statute attempting to validate L. When one adds to this record. Chap. 473. 7. is violative of the constitutional provision (Art. The Board of Supervisors of the County of Chautauqua. Sec. and in the Federal Courts. and Chautauqua should assess upon their respective counties a moiety of such further sum. v.000. 2. Palmer. 1868. 1870. Amended by Chap. 84. sioners. 77. R. 1. Y. 1866.. A law tional. Provided that the supervisors of the counties of Erie 6. Yan Horn. of 1870 in relation to the city of Albany prescribing that. 74 N. — An act of the legislature appropriating moneys from common is the capital of the astronomical observatory. R. Middletown. 7. 1868. 9. 4) providing that on 5. Sec. Lee. Sec. 1. 82 N\ Y. to the establishment of an in violation of the Constitution (article and void.94 THE AMERICAN LAWYER. a void subscription to capital stock of railroad unconstitutional. Y. 1870. appeal from the award of commissioners. 217. Y. as the said commissioners should certify to be necessary for the completion of the bridge. H. 619. 196. and a hearing. 57 N. Y. Tit. is unconstitutional and void. L. 183. Sec. M. Stuart v. Opening up further The provision of said act (See. the list becomes appalling.

T. 810.— Amendment to L. v. 1893. as the section itself. Chap. Chap. v. Chap. v. Y. 14. 1878. Y. 374. 75. 1870. Chap. sonal rights and due process of law. 622. Chap. Jason Fairbanks. 2. on town without consent. L. 291. are to be placed in a box. and proceedings taken thereunder void. void as infringing perS. City of Albany. 1870. Board. Board. L. so far as it relates to the confirmation of assessments. 694. the common council shall nominate twelve freeholders whose names. etc. —Legislature has no power to impose debt Thompson. as Crime for People city contractor to amended by L. p. 1870. 66 (right of appeal 694 (Village Act). Chap. prescribing qualifications for a jury to assess damages for as such a jury is not that required by Constreet opening invalid — stitution. 513. L.— employ alien. See Horton v. as amended from award of jury of dam- ages for street opening on giving bond for costs) invalid— as taking witbout process. who shall be appointed commissioners. Warren. void. 714. Chap. 151 1ST. on separate ballots. People 12. Sec. is unconstitutional. into the history of the enactment and repeal of unnecessary statutes. v. one is tempted legis- to exclaim: "How much longer can this nation bear the staggering burden of such ignorant pose of ascertaining the compensation to be paid by said city to the owners of lands taken for streets. Menges 11. 34 N. Chap. . V. Chap.. 365. p. Y. was unconstitutional and 588. etc. from whence are to be drawn three. 151 N. 809. 71 N. T. L. 694. Town of 15. 56 N. 65 N. 1871. as amended by L. 1869. 1894. 59. Titlb7. 95 investigation. 1871. Title 7. by L. 291. 75. 942. The provision of said amendment confirming the acts of the common council theretofore done in reference to the construction of sewers did not validate the assessment.— — THE DUTIES OF A LEGISLATOR. People 13. p.. City of Watertown v. L.

711. C. upon delivery by it to said institution of duplicate bonds. 480.— The provision of the act of 1880 (Sec. N. Providing that estate of 18. is unconstitutional. Sackett. 66 is unconstitutional and void. L. 758. v. 48. was a pastime. 16. Code Civ. Sec.. Y. from liability upon certain negotiable bonds issued by it "to all persons purchasing the same Laws of 1880) for the relief of the due publication of the notice specified in the first section of this act " is unconstitutional. by proceeding in invitum. which by its terms discharges the city of Yonkers. 77 Y. 4. 204. 60 N. Bennett. its passage. Chap. v.— The provision of the act of 1873 authorizing the taking of lands for the purpose of such an association. 545. and thereupon giving the latter exclusive jurisdiction thereof. as depriving of lib- for refusal to answer controller's questions. L. 856. L. Chap. Randall 19. Y. 17. In re Grout. 93 N. 90 IS". S. 1879.96 lation THE AMERICAN LAWYER. one of the greatest undertakings of ancient history. Pboc. Sec. L. a joint contractor shall not be discharged upon his death. does not affect contracts — made prior to ST. Sec. Manhattan Savings Institution. 1873. Otis. . Code Civ. 1876. and so it impairs the obligation of after contracts. Y. Assn. 569. Chap. — Committal for contempt void. Pboc. 20. 59. 1874. compared to the herculean labor which is devolved upon the lawyers of the twentieth century. 4. Alexander v. In re D. People ex rel. erty without process. as the effect thereof is to destroy the negotiable quality of the bonds. 452. and judicial conflict! " Justinian's task in reforming the Roman Law. — That provision of the act relating to the Marine Court of the city of New York authorizing any court of record to transfer an action pending therein to the Marine Court. and an order made by the Superior Court for the purpose of making such a transfer was void. Y. L. 1880.

637. & M. 96 N. and so not within the exception (Art. unconstitutional and void. 1881. 190. Chap. 582. People v. Code Civ. as amended in 1881 (Chap. L. 22. 1882.— The provision of the act of 1881 purport23. access to the constitutional courts of the State for relief. B. as to grand jurors.. Y. 92 N. L. Chap. for any cause. Joel. (Sec. Co. As applicable to such a road. 128. therefore. confirmed by the court. etc. v. S. 1882. 681. 25. from charging toll for bicycles held unconstitutional as taking of property without due process of law. 1881. was unconstitutional and void. Gilman v. declaring that the determination of commissioners. 58 N. Y. 1440).. 97 be a man who understands the origin and nature of society familiar with past and existing laws and history with such practical and discriminating judg- The legislator should. Act prohibiting Turnpike Co. 26. — Purporting to amend the provision of the Code of Civil Procedure (Sec. relating to title to real property 24. The legislature has no power to deny." is unconstitutional — and invalid. 532. L. L. 677. Y. Chap. " may be taken in lieu of the consent of said authorities. Y. 410. 1041) in regard to the selection and drawing of jurors in the city and county of Albany. 107 N. In re N. Co. Y. therefore. K. Laws of 1881). Chap. W. 3. Pkoc. to acquire title to lands by proceedings in invitum. In re Eureka Basin. the provision of the act of 1880 in reference to underground street railways. sold on execution. Sec. Y. Tucker. Turnpike Eoad Co. K. 128 N. Dist. 92. 1880.— THE DUTIES OF A LEGISLATOR. Assuming the said act not to have been reported by the commissioners appointed by law to revise the statutes.— The provision of the New York Consolidation Act which declares that no compensation shall be al- G . to a party who has been illegally deprived of his property. the said act is. — Rochester & C. 25) exempting from the operation of said provisions bills so reported. 42. — 21. Chap. 42. Petrea. Sec. ing to authorize the E. 346. L.

Y. lowed to the owner of land taken for a street for any building erected or placed thereon after the filing of a map of the street as prescribed by its terms imposes a restriction upon the use of the land which amounts to an incumbrance. Chap. a higher term than even Suppose the Bar would seriously statesman.98 THE AMERICAN LAWYER. 90. 672). The act entitled " An act to improve the 29. in certain cases. 136 N. L. Scott. 30. 135 N. not injurious to the — reason that community. 1884. and may reduce the price of an v. L. so far as it prohibits its In re Jacobs. Chap. 377.. 60. Sec. 98. A statute cutting down the right to commence an action upon a cause of action then existing.. Sec. 1884. Laws of 1885). 38. Y. solely for the it competes with another. Chap. is — unconstitutional. Foster v. 99 N. does not give such reasonable time. 1885. Y. Pboc. ment as enables him to comprehend the wants and necessities of his fellow men. Popflnger In order to sustain an indictment under 31. 98 N. 272. prohibiting the manufacture or sale of any article " not produced from unadulterated milk. L. Parmenter v. is unconstitutional. and so is unconstitu(Sec. Y. — A legislative enactment which 28. the provision of the act of 1885 (Sec. and not fraudulently conducted. Y. or cream — . Pleas from appointing Yutte. 202. L. 1884. 154." etc. Laws of 1885. a clerk as a referee is un- constitutional. 183. from a period without limitation to a few months after the passage of the act. 1885. public health. absolutely prohibits an important branch of industry. by the Act tional. 4. Y. amended by chap. Court of Common v. it is. 183. People Marx. in some aspects. In this respect. 102 N. Chap. Chap. article of food.— Code Civ. L. 27. 577. 7. by prohibiting the manufacture of cigars and preparation of tobacco in any form in tenement houses. 458. The State of N. and so is unconstitutional.

257. is un- Cromwell v. void because constitutional. T. 32. L. 610. 185 N. Substitution of indemnitor in action against sheriff. (Sec. by the use of ingredients. throw its 99 whole influence to prevent the election of individuals to the Legislature.— The acts of 1886 providing. as deprivation of equal protection of laws. are unconstitutional and void. Y. Dunn." it must be made to appear that the article manufactured was.— The provision of the act of 1887 confirming sales of land for the nonpayment of taxes theretofore made under the act of 1874. added by Chap. 691. 33. 36. compelling em35. Y. Chap. L. amended in 1887. — People v. 688. L. 388. T. Y. Marcus. 1886. as so much of the provision is unconstitutional. 171a. 111 N. who did not sub- stantially fulfill these requirements. Arensburg. People v." which is " People v. so far as it seeks to validate a sale. Laws of 1874). a misdemeanor. made under 474. 123 N. Levy v. in case of such a dissolution for the taking away from the company of its street franchises. 627. T. a void assessment.THE DUTIES OF A LEGISLATOR. Chap. 1887. authorizing sales of lands for unpaid taxes in the county of Westchester (Chap. Penal Code Sec. void. ployee not to join labor organizations. 335a. Unconstitutionality of Mandatory Provision. O'Brien. from the same. 1887. MacLean. L. 1887. made in imitation or semblance of butter. 691. 34. 97 N. Code of Civil Pbocedtjbe. and the appointment of a receiver therein. 322. 504. 310. and for the winding up of its affairs by suit brought by the attorney general. Section 1421. Chap. 103 N. 271 and Chap. Laws — The provision of the Penal Code of 1887) prohibiting the sale or disposal of . the manufacture of an article simply "designed to take the place of butter " is not an offense. Would not the community at once feel the benefit of such a in imitation or semblance of or designed to take the place of butter. 1. not necessary or essential to the article itself. 160 N. S. Chap.

S. Kyder. Withany article of food. how are they to be made available in a system like ours? These are the real questions. Gillson. Sec.— Amended by L. 1582. 382. void. 294. 164 N. Chap. L. Laws of 1889) authorizing the Special Term. Chap. an action for partition. 500. amended by Chap.t. 40. Bronk v. 1890. Conde v. 1893. 109 N. 29. Y.my offer or attempt to do so upon any representation or inducement that anything else will be delivered as a gift. City. 190. prize. Ap. requiring assessment for street paving to be apportioned according to foot frontage.— Providing that no one but Attorney General shall proceed against insurance company. or . movement? How are they to be But where would they find them? known? When found and known. 59. 124 N. 38. sale has been paid into court or deposited People ex rel i>. . The Provision op the Code of Civil Procedure 39. 3. 400 (Insurance Law 1892. premium or reward to the purchaser. "to decree that such unclaimed portion of such proceeds was vested at the time of such payment in the known heirs of the common ancestor of such unknown heirs and their heirs and assigns" is unconstitutional. Charter of Schenectady. 39. 57 N". Sec. S.— Prohibiting work by convict for sale is invalid as to contracts made prior to Constitution. 56). People 37. in which a portion of the proceeds of a with the county treasurer for unknown heirs and twenty-five years have elapsed without any claim being made therefor by any person entitled thereto. 258. Sec. L. Y. 871. Constitution. Y. is unconstitutional and void. Equitable. Barckley. 400. 43 N. Chap.100 THE AMERICAN LAWYER. Chap. L. who became such power to Greel v. 1889. Y. as in v. T. as to policy holder act. is void as taking without process. (Sec. 1890. 389.

1143. defining adulterated vinegar. Chap. L. 62 N. Fire Ins. 45. L. Secs. 50. v. 112. Chap. Hargreaves 46. 56 N. S. it is nevertheless true. Y. 1892. 2. Hilton. S. People 43.. — Misdemeanor to possess during certain seasons and inflicting penalty. void as to imported fish. and to be performed in the latter.— THE DUTIES OP A LEGISLATOR. Co. S. void as discriminating. L. Chap. as taking without due process. 338. void. 1892. Saviours San. Mat. to drafted men by taxation. void.. Y. Amend. insuring property within former State. 1015. Mass. 996.— As to committal of female in- ebriates without judicial trial. L. 86 N. Y. v. Agricultural Law. 1892. St. 212. that prototypes of the best class of legislators. as denying equal protection of laws. 41. 664. 1892. is void under Const. 47. 112. West. 376. Chap. Board of Supervisors. etc. 110. S. 687. 1893. Buffalo. 543. S. Y. L. Chap. 214. Chap. Sec. do not always appear. in the recognized legislative assemblies. 58 N. L. as taking without process. Chap. 431. 101 out an intentional impeachment of the form of democratic government. 1892. 090. U. 159 Bush v. for school commissioners is In re Gage. v. — Unconstitutionality of act for payments N". 15.. S. Sec. Harden.— Prohibiting suits by foreign corporations without a certificate. 1893. Sec. 1892. People 44. into v. 467. Y. and that cider vinegar made by State farms shall not be deemed such. 8. L. 56 N. Y. unconstitutional as not providing . 141 N. People 48. — Authorizing construction of a cremator for destruction of garbage. 42. Chap. 14. — Conferring upon women the right to vote unconstitutional. L. — A statute making void a contract entered made the by a citizen of one State with a corporation of another. fish v. Y. 488. 937. Windholz.


in all

There are epochs

governments, when


servants, fail to respond, to ideal require-

ments. But a democracy offers practical, and the readiest, methods of correcting such evils.
compensation to adjoining owners affected by offensive stenches from
the cremator.



Village, 45 N. T. S. 777.






— Authorized occupants

of agri-

cultural lands to construct ditches on lands of others on compensat-

ing them, violates Const. U.


Art. 14, taking without process.

In re Tuthill, 163 N. T. 133.

L. 1894,



—Permitting water corporations

to arbi-

trarily assess for


rates, void, as

impairing obligation of con-



Village, 161 N. T. 176.

51. L. 1851, Chap. 307, Amended by L. 1894, Chap. 712.— Declaring Moose River a public highway for floating logs, void, as failing
to provide

compensation to owners for land taken in improving

De Camp


Thompson, 44 N. T.


L. 1895,

— Trial court will not

declare act unconsubject.

stitutional unless there can be

no reasonable doubt on the
Y. S. 519.

City of Ithaca
L. 1895,


Babcock, 72


— Authorizing a pardoned convict
S. 691.

to sue

for damages, although

judgment against him unreversed,

invalid, as

being an exercise of judicial functions.



State, 51 N.

L. 1895,



— Free

transportation in street railroads

for policemen, void, as

beyond police power.
S. 203.

tion to


Traction Co., 76

L. 1895,



Chap. 559, Sec. 47. Authorizing a cemetery associaand to collect penalties for non-observance, unlaw-




the lawyers are to continue as our principal they must be educated up to the

standards of their real functions, powers, and duties; the legitimate effect of which will be to
ful, as legislature

without power to give such authority to a non-governmental agency.



Parker, 59 N. T.

S. 821,

60 N. Y.

S. 1015.

56. L. 1895, Chap. 633. No action against warehouseman unless he has claim other than for charges, void, as taking without



Albany, 70 N. T.

S. 474;



Co., 68 N.


S. 744.

Protection of holders of municipal neL. 1895, Chap. 792. 57. gotiable bonds by giving right of appeal to Court of Appeals although amount in controversy less than $500, void as to retroactive operation.





Village, 159 N. Y. 362.

58. L. 1895, Chap. 1027, Sec. 1. Making railroad liable to a penalty for refusing to sell 1,000-mile ticket at reduced rate, void, as outside police power, discriminating, and taking without process.



N. Y., 162 N. Y. 230.

L. 1896, Chap. 22, Secs. 19 and 20.— Unconstitutionality of 59. Abolition of Justices' criminal jurisdiction Town of Fort Edward.

People ex




Howland, 155 N. Y.


L. 1893,


601, as

amended by
S. 260.

L. 1896,

Chap. 272.— Pro-

hibiting marriage of uncle and niece, not retroactive.



Weisberg, 98 N. Y.

Giving workhouse suL. 1896, Chap. 378, Secs. 707, 711. 61. perintendent power to determine imprisonment of one committed for intoxication, invalid as without due process.
In re Kenny, 49 N. Y.
S. 1037;



Cheamer, 53 X. Y.

S. 1111.

Protection of Oysters L. 1896, Chap. 383. 62. disturbing vessel. Unconstitutional.

— Forfeiture




Lish, 153 N. Y. 188.

give us a


new and

different class of officials.


the present system of education of the lawyer,
these essentials are not in his curriculum.

the moral sense of the community, which
L. 1896,


pointment to


427. Unconstitutional restriction upon apInvalidation of entire act by inseparable consti-

tutional provision.



Wirth, 150 N. Y/459.

L. 1896.

private corporation

— License fees are public moneys. Appropriation to — Chapter 446, unconstitutional.



Mohawk &



Society, 165 N. T. 517.

L. 1896,


529, Sec.

82.— Forty-eight

hours' notice to

village clerk of a village of intention to sue village for personal injuries, void, as

unreasonable and taking without process.



Village, 64 N. Y. S. 547.

L. 1896, Chap. 545. Insanity Law permitting perpetual con66. finement of one as insane without notice or hearing at which he is present, void, as depriving of liberty without process.



Wendel, 68 N. Y.

S. 948.

L. 1893, Chap. 452, and L. 1896, Chap. 547, Sec. 83.— Em67. powering beneficiary of a trust to terminate trust without consent of trustee, void, as taking without process.



Hopkins, 46 N. Y.

S. 959.

Authorizing condemnation for a park, 68. L. 1896, Chap. 727. void as taking without process, there being no provision for notice.
In re City, 70 N. Y.
S. 227.

Kings County District Attorney, proL. 1896, Chap. 772. 69. viding that district attorneys of Kings County shall be elected every
four years.

People ex




Palmer, 154 N. Y.


a firm to do business in its members shall have been registered after examination by the examining board of plumbL. 1896,


— Prohibiting

New York

City as master plumbers unless



another name for public opinion, should be maintained to the highest possible degree, an educated Bar, and a free, pure and intelligent, Press, are the factors which can do much to accomplish all these results.
ers, void, as prohibiting formation of a partnership to carry on a lawful business.



Navarre, 182







goods, label act Interstate Commerce. People v. Hawkins, 157 N. Y. 1.
L. 1897,


of convict-made



— Transfer

act does not apply to a

property acquired prior to


In re Lansing's Est., 182 N. Y. 238.

Limiting employment L. 1897, Chap. 415, Aet. 8, Sec. 110. in bakeries to 10 hours a day and 60 hours a week, void, as outside
police power.



People, 76 N. Y. S. 396.

L. 1897,


41o.,Secs. 180, 184.

—Requiring horseshoers to
etc., void,

be examined and to obtain a without due process.

as interference



Beattie, 89 N. Y. S. 193.

75. L. 1897, Chap. 415, Penae Code, Sec. 384, Subd. 1.— Hours of labor under contracts with State or municipalities, void, as discriminating.



Orange, 175 N. Y. 84.

76. L. 1893, Chap. 452 L. 1896, Chaps. 547, 553 and L. 1897, Chap. 417, Sec. 3. Permitting life beneficiary of trust of personalty who becomes entitled to remainder, to end the trust, not retroactive

as to trusts created before their enactment.

7 7. of



68 N. Y. S. 430.

L. 1897,


— Unconstitutionality of Act limiting sale

Passage Tickets.

People ex




157 K. Y. 116.

Leubischer. Coler. The eye cannot be opened upon any department 78. S. 52 App. 162 N. 920. Y. of the official world. In re Straus (Sup. unconstitutional. L. is — unconstitutional. 1899. L. by which a company's earnings are reduced 25%. 1897.—Imposing transfer 30. Y. L. highest on People ex 82. S.106 THE AMERICAN LAWYER. — — McCann 84.— Code. 58 N. 171 N. pay the expenses of a person who has been indicted within its boundaries for a criminal offense in connection with his official dushall ties. 166 N. 567. Providing that municipal corporations L. Sec. etc. 346. L. Joel. L. People 81. — Statute requiring appointment of person — Chap. 415. In re Fallon. Chap. Turning from we find that the lawyers occupy almost the entire horizon. S. 1899. S. void. L. Repealing all prior statutes as to secur83. ing prevailing rate of wages to municipal employees void as to claim of workman employed prior to repealing statute. Balcom v. Y. 51 N. 1899. 13. void. 59 3ST. 869. v. as impairing obligation of a contract. 849. Chap. 76. An amendatory act passed in 1898 to the Turnpike Act (L. 1899. Y. Chap. . — Rochester 79. 358. as takiug away liberty of free contract. 1.).— That laborers on public works be paid prevailing rate of wages. Y. 1885. 1ST. Chap. as against due process. 700. 80. providing for committal of witness before commissioner of foreign court. Chap. Matter of Pell. S. Laws op 1899. Chap. invalid. 1898. list. Chaps. Tax. 210).. legislative to other fields. v. 1899. 1899. 735. Y. 192. 502. tax upon remainders or reversions vesting prior to June unconstitutional. 1847. 567. 61 Y. Y. City. 32. 37. L. rel. Mosher. v. 48. People v. 54 N. 370.

128. Div. Niagara. Penal Code Sec. 1067. or Municipal governments. void. 27. 68 N. 1900. 640d. Y. Contra. Y. 806. 1900. v. T. which she cannot be deprived without due process of law Ohap. naturally. Biesecker. S. proand second class persons offering real property for sale without written authority from vendor or vendee. — Prohibiting amended by New York v. Chap. in the legislative and executive branches of the government. etc. —Agricultural Law. Livingston. recovery of moneys paid by vendee. Grossman App. S. 70 N. and they swarm everywhere. Y.. void. Chap. Chap. 899. —Amending viding that in cities of the first Cody v. — Providing that a county should pay a bank its defaulting treasurer's overdraft. 1900. 534. Chap. 78 N. Greene 88. and. as depriving county of a vested right. T. L. 762. T. 476. S. as taking without process. Caminez. v. 89. L. prohibiting sale of butter or cheese containing a preservative. as not proper exercise of police power. as amended by L. People 87. S. 418. 466. guilty of misdemeanor. 1212. L. Y. Sup. 79 911. void. unconstituof — — tional. Amending Chabteb N. 86. 1900. 1897. Jacob. 614. 107 of the Federal. 83 N. T. Whiteley v. boiling of garbage. 377. S. Sec. 510. . as L. Sec. although a judgment had been given in favor of county in action by bank. Department. 90. Judgment for alimony constitutes property of wife L. 1901. State. Chap. in default. 94 N. v.— THE DUTIES OF A LEGISLATOR. engross all of the judicial offices. They. Dempsey. void. Good- Ooodsell. Terry. 485. 1900. T. 85. void as to sales prior to its passage. 742 in so far as it affects prior judgments for. without encountering them.— Providing for sale by auction by vendor. 1900. 166 N. 15. Livingston sell v. 77 N. 173 N. L. v. Haefelein v. L. T. 81 N. as taking without process.

1897. People 92. p. Y. 1901. Y. 90 N. 1896. Chap. S. void. 112. from the lawyer notions of the principles of government. Chap. city pensioners to bold city Chap. amended by L. S. 241. 1902. L. 76 N. 640. S. void. as amended by L. 808.— Relief as to lost certificates of deposit. L. 1901. L. they readily accept his 91. Caldwell. criminal procedure in Pennsylvania. 94. 94. Chap.— Providing that Act April 25. of Woodbury. Y.— Citizen of N. 451. Art. Chap. 1899. as impairing a vested right. 1901. 145. Y. giving salary to Alderman. 1560. S. . 1901. Y. 503.— For canceling of license certificate unless holder files an answer denying violation. as 1. 77 N. banks Chap. 567. Seo. void. Y. as taking without due process. from engaging People in ticket Preventing any than common carriers brokerage business. 81 N. as depriving of liberty without process. on subpoena. 96. 1902. — Forbidding v. but for no part of 1901. as amended by L. process. 1902. void. compelled to attend. against abridgment of citizens' privileges (Const. 95. 22. 97. T. 469. void so far as retroactive. 618. laws. Chap. 671. void. void. 1894. 83 93. S. 378. City. In re Cullman. S. 100. City. as taking without — v. 639. In re Cook. they hear from him the reasons for new. Y. as taking away right of action altogether. 224. 1901. L. JF. 98 N. 1367.— Section of charter of city of Middletown providing that written notice of dangerous condition of sidewalk must be given to city before recovery can be had for personal injuries. Act Jan. In re Commonwealth. S. sec. 92 ST. employment. 168 N. 410. Sec. Pboc. Code Civ.108 THE AMERICAN LAWYER. L. Chap. Young v. MacMullen v. and the motives for Individuals imbibe alterations of old. 1). Y. L.

539. Y. L. unconstitutional in part. S. amended by L. I.— Amending Penal Code. as taking without process. 137. S. 1902. 100. 93 N. People ex 103. rel. void. People u. 425. 102. 149. — Booth Co. void. 608. 461. 1897. the people fit of incalculable bene- De Tocqueville. 101.. 1903. debtor. 272. 109 technical explanations of the causes and effects of legislation. v. T. Tiffany. S. Sec. by L. 16. 97 N. 1 when not of a purely partisan char- In times of excitement. Sec. Y. 86 N. special execution against income or its Proc. L. void. 141. Subd. L. Village of Canaseraga v. 230. as to trusts created before Sloane 1094. 414. as taking without process. Chap.— Commutation for good behavior only allowed to convict committed on definite sentence. when public resent98. prohibiting use of United States and State Flags for advertisement. Van De Code Carr. and as beyond police power. Warehouseman may refuse to deliver goods to holder of receipt when another claims them. Providing that buildings within 500 feet of hydrant may be assessed although water not used. King Irving. Y. void. Chap. Green. Y. S. Johnson. L. Y. 1903. 1902. 90 N.— As amended profits of judgment passage. 134. . L. 178 N. Chap. Sec. 1902.'' p. Y. — People v. 88 N. 348. Chap. — 99. acter. 194. and that he shall not be made defendant in action unless he claims interest. S. 1 v. property. Prohibiting possession in close season of trout taken outside the State. Chap. 92 N. McPike v. as to offenses committed prior to its passage.THE DUTIES OF A LEGISLATOR. Vol. as infringing liberty and property rights. L. 591. Chap. Civ. 1903. S. in preserving order. " The scattering of men who of and are taught reverence for existing institutions among is the mass propagating a respect for obedience to the law on the part of the other members of the community. 640. 1903. 227. Chap. 1391. 272. void.

. S. His trained habits of thought. 181 N. 107.110 THE AMERICAN LAWYER. 1905. L. 176 N. People L. S. Space will not permit already nauseatingly long. — McMillan v. void. 253. 657. void. Star Co. pause here. 173. Lewisohn v. Y. 1904. S.. void. void. or passion is ment aroused. Chap. 1905. 1904. 96 N. Flynn. 1904. He becomes a breakwater between the passions of excited citizens. 531. Riglanders. besides.) special deputy commissioner to revoke liquor tax license issued prior to passage. and the forms and rules of the law. aff'd. 106. 497. v. 793. L. — People ex 105. Municipal ordinance allowing projections beyond building line. Zimmerman. the lawyer's influence ought to be great.— Authorizing taking without process. Equitable. 1904. the list is York. as L. as depriving judiciary of right to regulate the hearing by the circumstances of each case. Y. Y. Chap. 108. amended by L. 94 N. 365. all combine to make him a power of great impor104. his respect for the law. Klaw. 92 N. as outside police power. rel. as taking without process. Proposed amendment of charter of a corporation. as taking without process. . — Lord 109. Y. Sec. About 1904. void. Y. organizing the Equitable Life Assurance Co. v. Privilege of witness provided for by Section 342 of the Penal Code not coextensive with that afforded by constitutional provision. S. S. Chap.— As L. T. his devotion to existing rules and forms. Y. to print There are some thirty-five additional acts declared unconstitutional in the State of New me them. changing method of electing directorate. — Regulating trading stamps. 697. 655. requiring courts in certain districts to arbi- trarily regulate preference of causes. Chap. O'Brien. 772 . 1853. (May 26. Code Civ. 90 N. 95 N. Chap. People I v. 65. 173. Proc. 463.

1 Legal Ethics. of and trained oracles body of calm. 54. to be ultimate sovereign. as they are often caUed upon to do. p. mingling The influence. is always in proportion to the respect with which they are held by the of the law. intelligent. that they may intelligently exercise the controlling power placed in their hands. in Ill these dangerous emergencies. pre- law- yer. upon the most important changes in the Constitution. in his social sphere.: THE DUTIES OP A LEGISLATOR. As a voluntary instructor. and above formation of that public opinion be said in these times almost without a figure." all. the occupation of a it. As the sumed maxim still prevails that every man is to know the law. they religion. justice. Judge Sharswood * says "It is its office (the Bar) to diffuse sound principles among the people. community. his advice and judgment are received without suspicion or reserve. . becomes one this of great impor- without reserve among all classes. and They have the same training. as a free and voluntary promulgator of tance. and of judgment in deciding. of Without premeditated or concerted action. they instinctively act together in defense fundamental principles of liberty. tance. in the choice of their representatives in the legislature. in the which may The characteristics of the lawyers are identical everywhere.

based upon the fundamental maxims of social and political right. to respect and preserve prec- edents and existing to guard sacredly the rights of persons and property. This is undoubtedly true. 350. The " Democracy America. Perhaps Brougham comes nearest to it. I cannot recall an instance. Some have been great there when charged with a Samuel Romilly." p. to de- are taught to observe form termine questions by certain fixed principles. of which he was writing. which is certainly "free. is like Sir but in that different. that. in the broadest sense. so far as the gov* De Tocqueville asserts ernment of the United States is concerned. in all "free" governments. converts them into fixed principles." no such exclusive privilege exists. he was not a "pure" lawyer. where a pure lawyer has been a great leader in the House of Commons. But in England. and the general similarity of their habits of thought instinctively institutions. but then. act as an organized body never. . or even very great in Parliamentary debate. Mansfield was noted in his time.112 THE AMERICAN LAWYER. the members of the legal profession will be found at the head of all political parties. as opposed to temporary and frothy declamation. 1 special mission. of whatsoever form they may be. and order. shifts — champions of makeYet they rarely in a truly political sense.

it seems that their political inspirations. comparison between the English and American Statesmen and orators. when best administered. which. means the highest state of civilization. constructionists —to —professional. brings into public tech- a large body of lawyers nical. H . education. furnishes a most striking picture of the difference between the two governments. ex necessitate rei. the instincts. — pions of justice.THE DUTIES OF A LEGISLATOE. in the aspect in which I am here considering them. 113 truth seems to be that the influence of the law- when not strictly official. and ideas. from which most of our political history takes its life A origin. In the United States. as the sine qua non. on the other hand. by that instrument. are limited and circumEven the tariff scribed. and American politicians must study it. the substantial ex- clusion of the lay element of the community. The interpretation of a written Constitution. has been of the subtle kind advocates and chamyers in England. The Constitution of the United States becomes the guide for most of our internal politics. and training of the lawyers fit and adapt them for political life. to political education and advancement. and from the beginning of the government they have almost exclusively occupied the leadership of political parties. Except in rare cases.

on the petition of rights. lawyer's influence public and private . whereas in England. have been inaugurated and inspired by pure and technical constitutional lawyers. down to the present time. the great speeches have been almost universally made by trained statesmen. been challenged. as models of British eloquence. as early as 1628. however. and political students. when Sir John Eliot delivered his speech in the House of Commons. in the administration of all branches of the governments. wisdom and In both countries. legislation has Constitution. and Gladstone and others are carefully studied. Pitt. as contrary to the In the United States. and the orations of Walpole. Fox. Chatham. Chesterfield. Canning. therefore. and efforts of eloquence. and in life he has been a factor of the greatest importance. the sphere of the has been unlimited. Sheridan.114 THE AMERICAN LAWYER. most of the greatest political acts. Burke.

it gen- 115 . liabilities. THE OBLIGATIONS OF A LAWYER. sketched the system is under which the lawyer tations educated. and to endeavor to his vocation. it is necessary that all of the obligations should be defined and understood. I use the word "obligations" in a general and somewhat arbitrary sense. the limi- upon his right to practice. political and which prepares me to advance a step further in the inquiry. briefly. ascertained. it is their "duties. As this is not an essay upon the ignorant. for a faithless. ascertain the nature of his obligations. the "duties" of an infirst dividual. by considering the "obligations" of lawyers before discharge of his duty. unnecessary to dilate at any length upon this aspect of the subject. At the same time. because when a "duty" exists." Logically.CHAPTER VIII. I have heretofore. the nature of and his professional. I also reverse the natural and logical order of the subject. or negligent technical liabilities of a lawyer to his client. or of a class. social relations. and duties. perhaps. in damages. should be.

enforced in civil or criminal tribunals. I then in a position to deal with the "duties" of a lawyer to the community. second. defined the relations of the lawyers to their clients. nevertheless. as they do. for which he is liable to criminal punishment. deof the Courts have. for which he may be disciplined by the courts. largely in foro conscientice. all I mean to inall those of an enforceable character. They are his technical legal "obligations" to his client. These being ascertained and disposed of. which never have been. cisions. but first. or orders "obligations" in which the statutes. and have adcivil. judged their violation to create criminal. There are three classes of these obligations: those arising out of acts of professional misconduct. existing." The obligations which am now to speak of are well understood by the lawyers. with it a corresponding "obligation. but which. those acts for which he cannot be proceeded against criminally." and the violation of an "obligation" involves or I creates a "liability. or liabilities. expressly or impliedly. By clude those "obligations" of a lawyer. and the courts.116 erally carries THE AMERICAN LAWYER. constitute the most important attribute of the law- am yer's office. acting without the aid of juries. and punished . or perhaps never can be.

117 or the cancellation or sus- pension of his license to practice. or thing in action. Some of these acts fall under all three heads. For instance.THE OBLIGATIONS OF A LAWYER. he be may yet. bond. . the court or a treble of -party. and for the purpose of bringing an action thereon. That is to say. the neglect of are generally entails a criminal liability. with the intent. In these two enactments. in the State of an attorney or counselor who is guilty of any deceit or collusion. he may not be liable to criminal punishment. third. and he may damages to his offended client for his acts in one transaction. for deceit or misconduct. by imprisonment.. may be held liable to the party injured in pecuniary damages. 73. Or. with intent to deceive by statute. and to the revocation of his license. others under two. and. there may be no damages accrue from his acts. but only in damages to his clients. those for which he fine. or consents to any deceit or collusion. his license may be revoked. is 2 guilty of a misdemeanor. The which fixed first class of obligations. the policy of the law i Code. 70. etc. liable have his license revoked. Sec. Or. and still others under one. 1 guilty So an attorney buying a a misdemeanor. a lawyer in may be criminally punished. in addition to forfeiting is damages to the party deceived. 2 Code. Sec. New York.

an inactive one. a question of depending upon the peculiar circumstances of each case. Such acts comprehend. against deceits or colluof of plainly pronounced. fine. can hide his tracks. yet to the credit of the Bar. or a party. and the lawyers. deceit or collusion. of any kind.118 is THE AMERICAN LAWYER. it is diffi- But the is first of the Statutes to which It is I have alluded a very important law. for the violation of which he may be disciplined by the courts. or license. Deceit lurks in the heart. in . What constitutes fact. They are spread upon the Penal and Civil Codes. with intent is to deceive the Court. young and old. that cult to detect them. that the law can be applied. deserves more than a passing notice. These are difficult offenses to prove. or the cancellation or suspension of his license to practice. and collusion always is very subtly arranged. and plainly revealed by acts. sions of attorneys. any more statutes of a penal nature. The second class of the lawyer's obligations. in the boundless region of professional discretion. duty. however. so effectually. and it is only when the fraudulent intent is brought to the surface. with the purpose bringing suits thereon. and against the practice buying claims. A lawyer who deliberately sits down to concoct or commit a fraud. unnecessary to cite know them. and punished by imprisonment.

and with the court. everything which a lawyer does. or of the court. ments. or omits to do. It is important to note. in dealings with their clients. and moral misconduct. a proof that They their morale at some was fixed at a level and in some way. The Bar seems to comprehend these offenses by a species of intuition. respect. his client. fidelity. or rules of court. have been held It is sufficient to justify the infliction of severe penalties. 119 general. for they embrace all acts of bad faith. and corresponding to their opportunities. their in the case of lawyers. in violation of his duty towards. or of in any contumelious conduct contempt of the latter. of fiduciary agents. to summary punishment. above and not below the average. are held. or be- tween themselves. that many acts which would not subject any other class. and obedience. to a standard of morals. that lawyers in their dealings with their clients. disobedience or These obligations are not generally defined by statutes. with their presumed attaintime. in their dealings with their clients. must observe the strictest rules of honor.THE OBLIGATIONS OF A LAWYER. or in fraud or deceit of. but they exist almost wholly in judicial discretion in the conscience — of the courts. of the lawyers. . a principle of universal jurisprudence. therefore.

fine. he is under a positive . However. Although the original ground upon which it is placed. this always lost sight of. The is spectacle of a lawyer acting amicus curice now altogether novel. the discipline is so severe. to punish lawyers. by imprisonment. the power law. when his professional conduct becomes the subject of judicial review. deceitful. disingenuous.120 THE AMERICAN LAWYER. as I have more than once intimated. to question the plenary power of the courts. for any act which they adjudge fraudulent. to punish or discipline the lawyers. that when a lawyer's conduct comes to be questioned. now exists more in theory than in practice. when a member of the profession incurs censure. and will soon disappear from sight. summarily. or to deprive No them of their licenses to practice and conviction by jury. This extraordinary power of the courts. clinging to the old theory. one has ever successfully attempted. Indeed. or contemptuous. is Popularly. the courts. power over these legal agents. without a trial to discipline is unquestionable. and that to inspire and maintain a respect for the law. that he is an officer. judge him without mercy or stint. and almost arbitrary. is put by judges on the ground that lawyers are officers of the court. summary. they must exercise a plenary.

p. which arise under it must be said to the honor and credit of the profession everywhere. The one saving attribute for the lawyer.THE OBLIGATIONS OF A LAWYER. . But the number this of cases second class of obligations. for the fidelity of a lawyer and his interests. and through him of society. which I recur 1 to when its discussing his "duties. from the sensitiveness which the judges display to maintain a high standard of professional conduct. It speaks volumes. and to his client ennobles whatever limitations it touches. intellec- and physical power to his client's cause. and no dangers that he will not incur. is not large. at the instance of a client. i Post." no risk is incurred to the lawyer's morale by its exercise. when compared with breaches of trust by other fiduciary agents. is fidelity to the client. It is not the exception. for the lawyer to surrender his whole mental. Fidelity is the saving salt of human nature. and it is not a common sight. to witness the spectacle of a lawyer. There are no sacrifices which he will not make. and ad- vantages are incalculable. tual. 124. 121 disadvantage. but the rule. (especially one of any character or prominence) arraigned in court. Subject to the hereafter. to advance the success of his employment.

for the violation of which he can be little made liable to is the party injured. Little. the violation of an obligation creates a liability. Hence the lawyer is not often cited to answer the complaints or grievances of his client. in the management of all business committed to his hands. in pecuniary damages. the above referred to are enforced. prudence. skill. moral.122 THE AMERICAN LAWYER. even when the lawyers overstep all decent. of importance in this discussion. and the clients are silent. As I have said. and when such cases arise. they are generally accusations of withholding moneys. in the history of these infrequent controversies. can be found. The illustrations of this general principle are . they do not arraign them for extra fidelity to their interests. in rules all of which instances. or disputes as to strict compensation. which throws of a lawyer to the State. therefore. and legal limits. and the lawyer is under a common-law duty in respect to his employment. and his failure to do so subjects him to the ordinary action for damages. The lawyer is bound to exercise honesty. and care. at the instance of his client. The third class of the lawyer's obligations. the same as other agents and trustees. not often publicly complain of the overzealousness of their servants. in light upon the duties Men do their efforts for success.

to be found in 123 which their common-law duties have been defined by the courts. which I shall proceed to discuss. in many justify the publication of treatises. and they have been sufficiently numerous. to cases. devoted esof the pecially to that subject.THE OBLIGATIONS OF A LAWYER. and misunderstood. obscure. of the lawyer's real relations and duties to the State. . is above three classes a necessary prologue to the im- portant theme. now so undefined. some of the difficult and delicate questions involved in the subject. in the hope that I shall at least open to the profession. The consideration of obligations.

which I am now an considering the subject office in generally. A "duty" in the sense in is. to draw a line. or to the rights of those to whom he is opposed. tor. in those matters where to act for his client is a conscious wrong to the com- come now — munity. To we must know and I the character of their functions to encounter the of their powers. Between these lines lay the whole power 124 . in accordance with its nature. The general duty of a lawyer is.— CHAPTER IX. and another between his conscience and his client. or agent. one office. and delicate part of my task. most difficult. between the duty of the lawyer to his client and the State. of a constable. the obliga- tion to perform or exercise the functions of accordance with the nature thereof. To of ascertain this duty. execuascertain their several duties. true nature of the We must understand the speak of the duty a sheriff. THE "DUTIES" OF A LAWYER. policeman. to perform and exercise the functions of his office.

always opening to the Bar enormous returns in money. For example. or tendency. must be remembered that the profession of the law is necessarily one where an almost boundless discretion is vested in its members. the Papal Legate in the Great Council held at London in that year. and influence. the ordinary conditions of society. still remain. but his conscience. or far. as Matthew Paris informs us. and which was . so that they can realize how It near. it is well to have the lines constantly before the profession. to overleap the bounds of conscience. 125 and influence of the lawyer for good or for evil. the affairs of business and commerce. the lawyer has the supreme power of direction. and gives us the text. It lies with him to suggest and to direct. Living up to the most exact standards of professional conduct and ethics. in the extensive pronunciamento which he issued. in the commencement and conduct of litigated or other legal matters. on the part of the lawyers. I have found that there has always been a recognized temptation. that the lawyers. they are from ideal conditions. There is no In a very arbiter over him. reputation. While no one can hope. and that these acts have frequently called for very stringent measures against them. as a class. in 1237. In its general exercise. extensive search into the subject. will live up to the exact and best models of duty.THE "DUTIES OF A LAWYER.

he will plead faithfully not to delay Justice. that whoever wishes to obtain the office of advocate shall make oath to the diocesan in whose jurisdiction he lives. ipso facto. We . or by means of others. ' The duty cer of a lawyer is threefold : —to the State. . as a fiduciary. intended to cover all of the evils of the age. that in cases in which he may plead. decree. in the following language: "We have heard the cry of Justice. those who do so shall be. therefore. to the court. complaining that it is greatly impeded by the quibbles and cunning of advocates. . but to defend his client both according to law and reason. suspended from office and benefice until they have made proper atonement for the same. as an and adviser. to the courts. included a separate decree against lawyers. with the approbation of the council. . they shall be duly punished. and candor or honesty in his statements and . He owes loyalty to the State. or to deprive the other party of it. . both as a citizen and as a sworn officer of justice. do. and if they are convicted for so doing. he owes respect and dignity in his deportment. suborn witnesses. . and to his client. or to suppress the truth. Let all advocates beware that they do not themselves. all other matters notwithstanding.' 126 THE AMERICAN LAWYER. rising to the assistance of Justice. or instruct the parties to give false evidence. offi- as an officer and citizen.

to his client he owes his talents. In every employment which the lawyer reIn ceives. cannot be divided into parts. any more than he can serve two. his knowledge. and neglect the other two.THE "DUTIES" OF A LAWYER. and his fidelity. and dishonest to the court and his client. performing this duty. in which the Government the to position of the State in its whole corporate capacity is clear (not a mere question of law. If he attempts to go beyond this. 127 dealings with them. it is impossible to separate this threefold like the Trinity. The lawyer cannot perform his duty to one of It these parties. He is appointed to conduct judicial proIf a conflict arise between his duty and his Client. and honest to his client. It is one complete. But duty. he Why? Because he strikes a blow at society. he can fulfill all of his obligations to clients and courts with fidelity and honor. his time. and neglect the third. is a part of the judicial system of the Government. whole. his primary duty is to the State. plicable to both. or a question of the rights of the citizens. for the interest of that client is subordinate to the interests of all the other citizens con- — . congruous. is in fact the interest of the he must decide in favor of the former. ap- ceedings. any more than he can be dishonest to the State and court. which State itself). He cannot be honest to the State.

constables. there is no adequate legal evidence. he should not prejudge. knowingly and deliberately. or resorting to acts. stituting the State —who of are interested in main- taining the integrity the judicial system. and knowledge. are parts of the judicial system. lawyers. sheltered in the breast of the lawyer. and all agree that a proper punishment should be meted out therefor. Yet how are these offenses worse than the conduct of lawyers who. or honest doubt as to the facts. cannot be performed by giving advice. each and all. Is the one class of acts any less dishonest and lawless than the other? Policemen. Suppose constables and policemen receive bribes from criminals to allow them to commit crimes or to escape! Suppose magistrates and judges receive bribes to allow criminals to go unpunished Everybody understands and appreciates the effects of such acts. His oath to maintain the laws. . which cause their violation. sell their office. and in cases of doubt he is free to act as his conscience dictates. influence.— ! 128 THE AMERICAN LAWYER. magistrates. Of course. honest doubt as to the law. but the latter go unpunished because. to aid or abet clients to take undue advantage of the law? The former can be punished because the acts are capable of proof. Salus populi suprema lex.

own benefit. but he is absolutely prohibited from doing so. can arrange difficulty. which is protected all over by the sacred armor of the legal principle. that his dealings with his client are confidential. which is made for his — .s THE " DUTIES " OF A LAWYER. so confidential that he not only cannot be made to disclose what takes place between them. He works under the guise of his employment. place the whole business upon the latter' shoulders. When a lawyer cheats the law. and wrest from justice and the law. Therefore he works with perfect impunity. or plot. somebody is wronged. He is alone with his conscience. to corrupt a magistrate to permit a criminal to escape. but in the difficulty of detection. The difference is not in the degree of the act. The client is not apt to disclose a secret. and the occupation of the lawyer degraded. the act is so insidious that it is almost undiscoverable. therefore. to pay a lawyer to use his knowledge to defeat the law. carefully and delicately the game which his client and when the job is to play. what dif- ference is there in these acts? serious Is the lawyer's is conduct secret? less because it hidden and The law is defeated. and the disresult in getting him into would closure of which The lawyer. 129 To bribe a policeman to shut his eyes while crime is being committed. represent his client. to defeat the law is "put up" he can go into court.

the question as to how far his professional conjustice. and in fact. he is often the principal actor. In results to which the client is not entitled. is to look to. Is not this pure and simple dishonesty. he is equally culpable. duct affects the administration of and is the general salutary condition of the State. or knowingly aids the client in carryIn the one ing his own plans into execution. The modern . successful. He insidiously fills the latter with false pleas and defenses. few lawyers have ever taken time to analyze their true relations in this respect.130 THE AMERICAN LAWYER. and think of. whereas. case. or the other. too often justified by facts. It may is. and he appears merely as the representative. in modern times. that the tendency of the lawyer. also be safely said that the prevailing popular idea of the lawyer. almost lost sight of indeed. the performance of this work. I am bound to say. and is not the lawyer as corrupt as any other officer who takes a direct bribe? And it is immaterial if the lawyer concocts the scheme. the lawyer artfully puts forward the client. nothing else but the client's interests. is — They are satisfied if the client and the general damage which such success may have worked. the that his profession consists in thwarting law instead of enforcing it. is rarely regarded by them. to the law and society.

he is very clever and cunning and will get you out of any difficulty. and outside of the profession. . he can hoodwink the court and fool the jury. relying upon his past record. or thwart this law?" "Go to Smith. that the most brilliant and learned of the lawyers are employed to defeat or strangle belief. he can accept the flimsiest case with impunity." "Lawyer Jones is your man. of course. or profound student. The them "great. If a citizen gets into criminal trouble." but "suc- Not a great jurist. 131 suc- who can most cessfully manipulate the law and the facts. the greater his reputation. and wrangle and wrestle it through the courts. LAWYER. or unconscious of. In castfor legal aid.THE "DUTIES idea of a great lawyer public no longer calls cessful" lawyers. wholly indifferent to. one constantly hears such phrases as these: "Whom shall we pick out to break. and." "Do you want time and delay I know the man for you. ! are never thought much less considered." Availability is sought for not great legal talent ing about — or learning." "Brown has great influence with the court. defeat. And the rights of the public of. inside common justice. employ him. the interests of — They The law and of It is the justice. When he is at the zenith of his professional fame. lawyer goes with the current the more desperate the causes he wins. is OF one A. but a successful practitioner.

bad. one whose force consists in making flimsy assaults through processes of the law or a braggadocio with a brazen countenance and loud voice in others. known as any other public fact. and influence can be hired. whose capital stock consists of cunning and impudence. must necessarily be guilty in the course of his practice. he magnitude and delicacy of the questions involved. whose time. in any kind of a case. knowledge. the dishonest liti- makes choice (according to the . It is believed that big fees will command the It . whose mind. well socially gant needs the services of a counselor who stands and politically. who falsely brags of his intimacy with judges. as thus understood. whose experience. and his ability to postpone and delay.is as well leaders of the bar everywhere. or. or indifferent. but who sometimes has not even a fair power of presentation. or the policy of the law. he wishes to postpone paying his debts. . as to fees. and of his means). who desires to comply with his terms. A successful lawyer. and occupied. every lawyer might be regarded as an intellectual prostitute. if he wishes to defeat a statute.132 if THE AMERICAN LAWYER. of the lowest "shyster" or the most skillful counsel. — . if he desires to enforce an illegal demand. by any stranger. that the lawyers of all classes can be hired by the first comer. his necessities call for a pettifogger. In some instances. In this view. good.

but fully. the community looks with perfect complacency and composure upon a transaction in which the leading lawyer sells his talent. about this part of the lawyer's business. right. are intercase. to . It is his highest glory to be able to "I won that case. posed by the leading lawyers not by those in the middle rank of the profession. in any The flimsiest defenses." and his air is more tri- umphant if it is a very bad one. There is nothing secret. or pleas. the victories which he wrests from the law. his knowledge. unconsciously sometimes. assailed the right of a lawyer to accept a and employment from any man. or intuition. moral sense. his time and influence. successfully. of 133 many dishonorable and disloyal acts to the often will- State. his devices become more numerous. he be a man of fair natural. His acumen is sharpened. at the sacrifice of justice and say. but by degrees these wear off for it is the hand If — employment that hath the daintier sense and he begins to regard it as his duty to accept all of the cases which are proffered to him. In fact. No one has ever. or underhand. It has the approval of the people everywhere. he must suffer some qualms of conscience.THE "DUTIES" OF A LAWYER. and in time he begins to regard. to the most retainer — corrupt or infamous individual in the land. of little — with feelings of real triumph.

Remember what I have said about cases in which there is an honest doubt as to the facts. civil or criminal. — I allude to those instances in which there is no doubt. . these paradoxes in morals. for which society is organized. are constantly witnessed. for defeating the object which he The idea legal is created to promote. the right of everyone to insist upon the exact forms and principles of the law being applied. the exact dispensation of which. is most extraordi- nary and anomalous. promote or sustain illegal acts. To such cases I do not refer. the evil that must result to society. All these anomalies in law practice. when he transforms himself into an agent. can take his pick of the Bar. of the to Government licensing an army defeat of agents or delay justice. as an auxiliary in the administration of justice. where the lawyer is deliberately made an instrument to thwart the law and justice and he knows it. or the law bear in mind. in any case. becomes apparent. condemning the author and his acts. and applauding the lawyer who shields and sustains him! To-day a multi-millionaire. is among the first purposes. at the same time. while.— 134 THE AMERICAN LAWYER. also in this connection. condemning in the most unmeasured terms the client and his performances. Yet if one contemplates the true position which the lawyer fills in the Government.

A bad cause has had its votaries. are no longer but become positive vices. — — mistakes and excesses here. and blind attachment to the persons of individuals has ended in ruin and even criminality. and both being bound up with each other. there is in reality no choice of evils. that is good. I would not abate one jot of a noble enthusiasm sustained by one of the best principles of human nature that in those cases where it can in any wise of fidelity have a proper application. as in the case of the lawyer. of which I have heretofore spoken. are virtues highly to be extolled. as in everything else. mutually to illustrate each other. and the client. in the abstract.THE "DUTIES" OF A LAWYEB. 135 sacrifices qualities of fidelity to. for it then accompanies a grave function and is Who can encompassed by many-sided duties. and which are so often illustrated by lawyers in their employment. But surely there are virtues. doubt that it should then be safeguarded by an enlightened conscience? When it is so guarded. So those for. and which. and presumably of equally vital necessity. A de- . it claims exceptional privileges. no infidelity either to the client or the State. taking it at its best. for the duty to the State begins at the point where the duty to the client ceases. they serve. Let me not be misunderstood. Fatuous When fidelity has no merit. it should be more closely scrutinized. in the mind of the advo- cate.

a condition of things exists in which fidelity to the client and the duty to the court. and he owes and can justly give him nothing more. fects. are in opposition to each other. .136 THE AMERICAN LAWYER. then sign it is a sure things. It is. private and public. to the law and society. in the actual working of tration of justice. If his zeal. for money. rather. courts. skillful. subversive Its evil of ef- that principle. he immediately encroaches upon his duty to the court and the State. needs revising. to of his client at the ciple of fidelity. They and around us. and diligent. and perverts and corrupts the adminisIf. and. in plentiful measure. any system of jurisprudence. lawyers. can have no vindication from the assumption that it is required by the princate. termination. of one lawyer may not be enough to affect the foundations of justice. it may be. of truth. that the whole of that state of system. to be honest. therefore. or desire for success or pushes him farther. for. The lawyer's duty to society and the law must be constantly kept before him. faithful. cupidity notoriety. are with us. The lawyer's duty to his client is. rightly understood. or all of the acts. while a single act. and public opinion. on the part of the advo- devote himself at all hazards to the rescue expense of the Law. need no amplification.

the wheels of justice become deflected. will and magnificent surely ruins. and he can make fairly accurate calculations as to the longevity. than the responsibilities of the lawyer in this regard. of profession — es- . for the minimum of respect and obedience.THE "DUTIES" OF A LAWYER. One may not be single. 137 the combined acts of a body of lawyers oft repeated. methods lectual of practice. misapplying and perverting its principles. you may be sure that such acts have contributed largely to the result. of the system of government. Let anyone consider the effect of forty or practices of lawyers. able to trace the effect of a or of a thousand. which the public has for the law. as a class. him carefully examine the and the moral and intelthe legal condition. Atlas had not a greater burden on his shoulders. like an army of worms. are largely answerable. dishonest and illegal upon the judicial system. undermining the constitution and laws. or the law paralyzed. silently and secretly gnawing cause It is it at the foundation of a great structure. fifty in distorting If the philosopher or let critic is looking for evi- dence of decay. under which they exist and thrive. but if thousand legal agents spending their lives and prostituting the forms of justice. gradually but into to give way and tumble perhaps not going too far to assert that the lawyers.

and may. The general definition of duty. where the influence of the lawyer is so potent for good or for evil and where in fact. a vast area of debatable ground is opened.138 THE AMERICAN LAWYER. But a satisfactory conclusion may be reached. as thus laid down. to expose to the lawyers. every branch of government. is sufficient. which I have heretofore given. of the lawyer himself. is neither visionary nor impracticable. endeavored to portray . and judgment must be exercised in its treatment. the just and proper limits of their office. and conditions. by keeping. It is impossible to state any proposition concerning these duties. and adhere to a strict line of duty. men have. thought. In applying effort to cause The them to follow these general principles to particular cases. is dominated and ad- — ministered by him. pecially in this republican form of government. and the exact nature of which they fill. of members the office in constant view. and honest. the true functions of the Bar. as I have heretofore it. an intelligent and awakened conscience. wherein many distinguished. without con- ceding that in it is subject to numerous exceptions The whole question rests largely. But I have now reached a branch of the discussion where the utmost delicacy. generally. disagree.

to thwart and defeat just claims and demands. upon their admission. or the conditions of . The profes- As sion of the law holds out a perpetual temptation weaknesses. that the to human lawyers possessed opportunities. by the interposition of frivo- and unfounded defenses. These practices have varied. a different class of lawyers evils would soon appear. to wander away from a strict line of duty. if a system of education is introduced. shows. the cultivation of a high moral sense is made a . and use. fraudulent. I have intimated. distinctive feature of their education. If 139 the lawyers comprehend these things. The oaths administered to lawyers. and to either openly. according to the lous. illegally. and many would gradually disappear. show that it has always been recognized. a review of the history of lawyers from their origin. exigencies of their clients.THE "DUTIES" OP A LAWYER. the course of justice. many other deceitful and dishonest practices and schemes. or insidiously and secretly. commit many wrongs in behalf of their clients. which brings before them a clear conception of their position in the consciences if government under which they live if their are educated and thus quickened. and to resort to. that the legislators and the courts have not been unmindful of the constant temptation to this class. while far from being full and exact. to delay.

. payment a debt. Whether of the if with the title a lawyer knew. with great solemnity and earnestness. justified in concealing that fact and of investing another. or approved. but it has openly encouraged. as showing that the lawyers were in some respects no better in ancient days than they are at the present time. and about which it would seem that no two just persons could disagree. we find that arguments have frequently been put forth. Whether a lawyer. and public opinion has not only not closed its eyes to these things. who knew the right and this criticism is And legitimate heir of a property. not surprising. times. therefore. But they have grown so general and open. claim whatever to and. was it. not only applicable to contemporaneous history. of the payment just debts. who had no to the estate . that they have almost come to be recog- nized as a legitimate part of the lawyer's functions. of and had the evidence. it was gravely debated in the sixteenth century between the Doctor and Student: 1st. to sustain the lawyers in practices which were openly and flagrantly dishonest. Suitors of selves of the all kinds have freely availed themor avoid. that in the course of a research into these subjects. For instance. It is. 2d. them. their opportunities to delay.140 the THE AMERICAN LAWYER.

None more glaring can be cited than the sentiments laid down by Lord Brougham. others. which have done incalculable harm and damage to youthful. which was unnecessary. frequent among lawyers and tions of legal ethics. happily for the age. 141 he was justified in concealing his knowledge. but there are many who may be needful to remind. designing. he said: "I once before took occasion to remind your Lordships. Chap.! THE "DUTIES" OF A LAWYER. . Dialogue Chap. or resourceful lawyers. I. as those to which I have referred above. was an honest 1 man. difficulty in reaching a conscirighteous conclusion in the prem- But there have been. XV. discussions as plain since that time. and collecting the money a second time The Doctor. knows in the discharge of that office but one person in the world. upon queswhich seem to be equally and simple in their solution. by the appli- cation of the principles of common honesty. VI. is the i "Doctor and Student. XII. that Client and none other. in his defense of Queen Caroline. and among others to himself. and had no entious and ises. Chap. Dialogue II. To save that Client by all expedient means." Dialogue I. that an advocate by the sacred duty which he owes his Client. In that celebrated trial. to protect that Client at all hazards and costs to all others.

as far 1 i Forsyth's "History of Lawyers. 380. Nay. and he must not regard the alarm. the torment. and casting them. he must go on reckless of the consequences." p. the author of those destructive and unfounded views. . publicly repudiated them by saying that they were used as a sort of political that. 1875. to cover all kinds of dishonest practices and defenses. in a letter to Mr. perhaps never was language written.— 142 THE AMERICAN LAWYER. if his fate it should unhappily be to involve his country in confusion for his Client's protection. Ed. which contained worse doctrine than There that which I have just quoted. and the great name of Lord Brougham is still used. Tweed!" which perhaps he might properly have done. or spoken. and his I defense — love together. to sustain many ridiculous and false positions of advocates. Tweed and then. but he need not have used Brougham." he piteously added. and yet it has been relied on over and over again by lawyers. "I have learned to love William M. if need be. to make "Ossa like a wart. the destruction which he may bring upon any other. separating even the duties of a parent from those of an advocate. the suffering. to the wind. Fo^th. of Brougham." heard a lawyer use this quotation in the of William M. despite the fact back as 1859. highest and most unquestioned of his duties.

his He has a right. but it exactly suited the caliber of those who were to profit by it. by play of i "Table Talk. by solemn asseveration. as. for a gross exampie. and a band round his neck do for a guinea. in his Essay on Bacon.1831: "There is undoubtedly a limit to the exertions of an advocate for may it be able to produce. it is bounden duty. defending an innocent woman whose situation natures. nor his his client. that was the exaggeration of an impassioned advocate. 27. men like Coleridge. not merely believing. by gesture. In the discussion which ensued." Oct. utmost sympathy of chivalric any rational view it was wholly. he should do all that can be done by sophistry. to deed or put in evidence a forged will knowing it to be so forged. and called for the But in 1 has stuck like a burr to the profession ever since. whether it be right that. what without those appendages. and disastrously bad. talent or knowledge of his own duty to do that for his client which his client in foro conscientim has no right to do for himself. he would think it wicked and infamous to do for an empire. but knowing a statement to be true. had no difficulty in discerning the proper limitations. But is the advocate has no right. unmitigatedly. by indignant exclamation. it left it to his readers to say: "Whether it be right that a man should. by rhetoric.THE "DUTIES" OF A LAWYEB. to do everything which his client might honestly do. menace. with a wig on his head. 143 it A better defense might be. whose opinion I quote. and to do it with all the effect which any exercise of skill. And Macaulay." .

without the consent of his client or the approbation of the court. I deem to it. by terrifying one honest witness. of those acts. state it. 85. or courses of profesto be I be clear sional conduct. throws doubt upon the subject. ." features. to cause a jury to by think that statement false. some ceded duty. therefore. pp." and that "when he (the lawyer) has once embarked in a case. unintentionally. As an it act of this kind involves pure dishonesty." No sophistry can obscure such a position as being wholly against the common principles of i Legal Ethics. perplexing another. by asserting that the lawyer "is not morally responsible for the act of the party in maintaining an unjust cause. when they are discovered to be false and without foundation in fact. important to specify which I think must be conviolations of the lawyer's leaving other acts. would seem to be only necessary to it. principles state which governed by the general have endeavored heretofore to (a) To knowingly commence suits for the recovery of unjust and unfounded claims. he cannot retire from it. or to continue their prosecution. to prove And 1 yet even so pure a man as Judge Sharswood. 84. 83.: 144 THE AMERICAN LAWYER.

145 and the true nature of the lawyer's And Sharswood corrected whatever unfavorable inference might be drawn from the above part of his book remarks. can one of the principal sworn agents of the law be justified in knowingly aiding and abetting unfounded and dishonest suits? Upon what principle can he use the machinery of the law to accomplish results contrary to justice." offends his sense of what is just and justice. The object in creating courts was to administer How." which it is the object of all law to prevent or remedy. in a subsequent x that "Counsel has an undoubted right. 96. If anything can be more distinctly immoral. and aiding in the "injuria. office. truth. right? How can the law be efficacious. because he is willfully stabbing justice.THE "DUTIES" OF A LAWYER. ally responsible" for the act of a i Ibid. by clearly affirming. p. if it is slaughtered in the temple of justice. then. with knowledge of the "mor- party in maintaining an unjust cause. . is turns atheist? A lawyer. honesty. and are in duty bound to refuse to be concerned for a plaintiff in the legal pursuit of a de- mand which right. is by its to become of the own chosen guards? What sanctuary when the priest facts. I cannot conceive it.

And the lawyer. at once.146 THE AMERICAN LAWYER. to help of this from the Bar. is perfectly clear. existing rules of law. a layman combines with. him cheat justice. a lawyer is forbidden betray the secrets which come to him under to By guise of professional confidence. his friend. the world has never altered its views as to the nature of the If and unmitigated immorality. without violating the privilege above referred to. and he cannot. would have a quick and exhilarating effect. and frequent rebukes kind. and there is no real excuse for not promptly abandoning such a cause. upon the morals of the liti- gating community. upon the acquisition of the knowledge. should feel no disappointof escape an easy avenue ment in failing to secure legal assistance. but that he should desert it. and of its entire — . A man who is conducting a dishonest case. in aiding his client to do the same kind of an act. There may be some room for a question. as to the form and method which a lawyer should adopt in retiring from a ease which he discovers to be dishonest. or assists. perhaps. in defrauding another of his rights or property. is guilty of a deeper and more striking offense because. or business associate. but there is always — from such a situation. walk into court and loudly proclaim the dishonesty of his client. in addition to act.

" b.THE 'DUTIES" OF A LAWYER. S. 147 the innate immorality of his conduct." etc. have increased to such enormous proportions that there is little doubt but that such a practice. "Eleof Morality. talked about. openly indulged in. strikingly confirmed by the oath of office administered to an Avocat in France.. he violates officer of the law. Legal controversies. II. p. and upon society in general. 303. the moral sense of the whole community is deadened. Vol. 2 fession "Usages et Regies de la ProdAvocat. but perhaps it is not more so in degree now than in the past. and encouraged. They are. however. or de- feat. apposite quotations could be cited from the writings of moralists to sustain these views. It has almost come to be a proverb in the This is 1 ments See especially Whewell. has a direct and deep influence upon the morals of the lawyers. Cresson. for I believe the subject perfectly clear. is when the true char- understood and considered. which requires him "de refuser les causes dont il connaitrait l'iniquite. c. I. 17." 2 acter of the lawyer (6) To knowingly postpone. XV. one of the besetting sins of modern legal practice. . When the laws can be easily thwarted. just demands. par M. and legal claims or delay. however. 1 his oath and duty as an Many I but deem them is superfluous.

of his career. it is just and due. I want all the time you can get for me. presents an every-day picture. is as great as the violation of any other plain duty. 116. it is the general open boast of lawyers that any just and legal claim.' no doubt. And in the tions yet. by a resort to — — technical There at is and dishonest defenses and excuses. in resorting to such some step practices. . family. and sometimes the deepest consequences to friends. often. law at all events. may be almost indefinitely postponed. i Legal Ethics. hardly a lawyer who has not felt justified.148 THE AMERICAN LAWYER. Sharswood dwells upon one aspect of this subject in the following language: just "A man comes to him (his lawyer) and says: 'I have no defense to this claim. in the life of a lawyer. in a form which is almost irreThis. when the subject is examined even most narrow light of the lawyer's funcand duties. but I have not the means to pay it. it becomes perfectly plain that these practices. The appeal comes to the lawyers. sistible. p. and future prospects. The demoralization which is produced. are involved in it. of defending or postponing and legal claims. must inevitably be to the detriment of the principles of the law and justice.

which I am here discussing. when Sharswood wrote his little book. from arguments or reasoning of this kind. Pennsylvania existed under a pure common-law practice.THE "DUTIES" OP A LAWYER. 116) con- . in the practice of inter- posing technical defenses. an application should of the question. appre- ciating the sults which generally refrom such application after suits have been refusal prompt he says: "If. except such as are required to be sustained by oath. The formal pleas put in are not sidered as false in this aspect. which is incident to the ordinary instituted. But that circumstance does not alter the principle. by the abandonment of the lawyer's plain field of duty. 149 Judge Sharswood evidently felt the delicacy and he meets it by ingenuously saying that. There is no doubt." (p. and it has made The the practice more is difficulty that. that many lawyers have received encouragement. to be falsehood in . and the declarations and pleas were not under oath. to just claims. consequences ensue which are disastrous to the proper ad- ministration of justice. however. in such a case." Of course. The counsel may take all means purpose which do not involve artifice or himself or the party. . that be impracticable. be made to the plaintiff for time! But. course of justice. for this ". it would seem that a suitor has a right to all the delay. common and extended.

or The cated. rather than embark upon the doubtful voyage of a litigation. and trouble as substantially amount to a loss of their frequently claims. He is an undisputed claim. not contempt. and involve such expense." "give it to the lawyers and be done with it." are expressions that are familiar to everyone. The one is equally as false as the other. is equally objectionable and truth. the consequences may be as disastrous to the claimant as to the debtor. these rights are postponed or defeated. "go to law and be involved in endless litigation and expense. or disregarded. and the courts are established If for that purpose. annoyance.150 THE AMERICAN LAWYER. if unsupported by merit. owner are has rights." to law "Go and lose it all. entitled to have them vindiof when they refused. fiable delays. . plaintiff. and in this aspect the form of the defense. than these unrighteous and unjustiprocured by attorneys. Where is the line to be drawn? Certainly not between the formal pleas not under oath. and those which are attested by an affidavit. for necessitous and dishonest suitors. 'Individuals abandon their legal rights. There is in conscience no act which has brought upon the if administration of the law more reproach. which may end in the far future.

was sufficient to attract that great poet's satire. and the respect paid to them by the lawyers and the courts. as well as other. These delays constitute to-day a crying. has now grown to such dimensions. and Jarndyce v. It may be conceded. A hardly appreciable evil. 151 in The "law's delay" has been English history. Its danger lies in the fact that it has permeated . open. and procured postponements under their cover. So far as I can discover. from time immemorial. Jarndyce. which threatens the very fabric of jurisprudence. business. and the adminis- tration of justice itself — it is applicable to a whole system. In Chancery proceedings the delays were cruelly long and unjust. which. has been the general towards greater rapidity. shameful reproach upon justice. is not an exaggerated illustration of them. in the transaction of legal. that tendency of modern times. wholesale. but the criticism of delays predicated upon false and dishonest defenses is not answered by a recourse to the past. as to involve all of the legal agents. these delays were to a considerable extent the result of the intricacies and forms of pleadings. in Shakespeare's age. but its origin and continuation. were based upon grounds.THE DUTIES OF A LAWYEE. and without doubt many dishonest suitors sought refuge for time. very different from those which are now invoked to support it. proverbial.

all that subverts the morale of the latter. in lending the influence of their office. and if to one such vital organism. It is an incentive to ambition. must likewise be dangerous. In the connection which exists between the Law. No more sacred or in- up with the growth of jurisimportance of rigidly guarding prudence. to all. it invites prudence and economy. it is a powerful weapon for the proper education and discipline of families. grows out of reasons which operate to sustain and make healthy the social organization. These practices. to thwart the right of individuals to dispose by will. must be dangerous to the former. and those who are charged with its administration. citizens and a most vicious practice of lawyers. classes everywhere unblushingly use the lawyers to procure unconscionable delays. Before I close under this head I must advert to of society. so evil in themselves. The rule of permitting an individual to bestow his property upon his death according to the dictates of his will. Whatever corrupts the community. or even caprice. both directly and reflectively. judgment. and to thwart and defeat the payments of their just debts and demands. legal ability of their property and experi- ence. it teresting right grew . as an instituted organism. also threatens institutions.152 all THE AMERICAN LAWYER. The this power is so apparent that I need not dwell upon it.

No will is safe from their brazen and shameful attacks. But the lawyers have rendered this plain principle of law nugatory. or believes. I however. it is necessary to clearly define. generally. the legal profession. him to be guilty. The sacred right and expressly desire not becomes nugatory. and. and when they are successful. they break wills. when fully understood. I believe. do not intend to avoid the last-named issue by seeking refuge behind this third (c) proposition. lawyer is not justified in using or (c) resorting to dishonest means or practices in the defense of persons accused of crime. which I have just laid down. property is wrested from devisees and legatees. and assumed grounds. and frustrate the testator's intention. Upon feigned.THE "DUTIES' teaches charity. In the outset. that the subject. until the doctrine of tes- tamentary disposition has come to be almost a mockery. A The question whether an advocate should defend a person for a crime of which he knows. . 153 generates a respect for law and order. and it OF A LAWYER. has less practical importance than is generally ascribed to it. and out of. given to persons deliberately. intentionally whom the testators to have it. has always been a favorite topic for discussion. in.

" of the guilt of the accused person.154 THE AMERICAN LAWYER. Should he continue to act as the advocate in such a case? Nothing can be gained by an endeavor to answer such hypothetical or supposThey depend. its commission. made to him by his client. he is a witness. for obvious reasons. without his confession —which fact might influence the lawyer as to one course of conduct. the peculiar circumstances of each case. because the law prevents him from is In such a dilemma. be practically disqualified from acting as an advocate. It may be. what his disclosing information. upon ititious questions. largely. is what If meant by a "knowledge or belief. the lawyer has personal knowledge of the crime. that there is a full. and consequently would. if he is present at. Should the lawyer advise his client to plead guilty? Suppose he gave . He may also derive his knowledge of a crime. there might be a defect in the technical proof against the defendant. or sees. the same as any layman. and must be conscientiously determined by the lawyer when they arise. from a voluntary confession. On the other hand. case against the accused. even if he should wish to speak. technical. which the confession would supply. duty? His mouth is closed by the law. communicated to him in his professional capacity.

No important criminal act is committed. or is belief. form an opinion. would compel them to obey such orders. and from current and public report and rumor. in which prisoners have none. The court certainly can assign counsel. keeping in sight the general principles which I shall hereafter. refer to. based upon such sources of knowledge and belief. to defend all cases. in view of its peculiar circumstances. is. What question is. generally. has he the right to espouse such a cause? I think there can be no grave doubt as to his complete right to do so. and their duty.— THE "DUTIES" OF A LAWYER. when the asked if a lawyer should defend a person accused of crime whom he "knows or believes" to be guilty. . and lawyers in common. meant. and upon which men generally form and base their opinions viz. which is not quickly communicated to the public. as officers of the court. is a lawyer justified in defending the culprit? With this moral conviction of guilt upon his mind. is derived from sources of information which are open to everybody. therefore. 155 such advice and the client refused to follow it? I repeat that each case must be determined as it arises. promptly.. through the Press. briefly. With an opinion of guilt. that his knowledge. and about which the community. do not.

as well as certain forms and rules for the trial of offenders. criminal A person accused of crime. No system exist. ance and stability. . is entitled to demand be that each. administration prudence. There must necessarily exist in every community.156 THE AMERICAN LAWYER. to defend persons upon broad and wellgrounded principles. upon their continudepend the very existence of For instance. rests are indispensable conditions. a cold and atrocious murder may be committed. governed by law. prevent the conviction and punish- ment of guilty persons. and justice would be thwarted. criminal jurisprudence could without such general rules. social organization. the application and enforcement of these forms of criminal procedure. the guilty man would go unpunished. The requirements of the law could not be met. yet. at times. the person who committed the bloody deed discovered and arrested. exact and clear definitions of crimes. These accused of crime. juris- and humane. right of The the lawyer. should is he of convicted. yet all of the witnesses who had knowledge of it should die. before of these conditions. and satisfied. to of an intelligent. and the mind of the community morally convinced if of his absolute guilt. all. While there is no doubt that.

the most valuable part of the English Constitution. If the advocate refuses to defend. to client. and the other to his client. — said: "I will for ever. at all hazards. are lacking. he assumes it before the hour of judgment.THE "DUTIES" OF A LAWYER. if the forms of the law are not complied with. he performs a double duty one to the community. from that moment the liberties of England are at an end. from what he may think of the charge or of the defense. and in proportion to his rank . without which. As Erskine eloquently. can be imagined. should be proceeded against in a legal and orderly manner. than the position of the lawyer. nay. can have no existence. impartial justice. are. and integrity of the English Bar. almost passionately. In doing this. 157 that A his lawyer's right and duty. he assumes the character of the judge. notwithstanding his own moral conviction of If the elements constituting the crime guilt. in preserving and upholding the forms of the law. assert the dignity. independence. No finer or nobler exhibition of his real duty to the State. charged. it is his duty to urge and demand the acquittal of his client. demand charged with crime. From the moment any advocate can be permitted to say that he will or will not stand between the crown and the subject arraigned in the court where he daily sits to practice. under such circumstances.

A lawyer can always demand that the forms of the law should be complied with of the lawyer. as is known. in whose favor the benevolent principle of English law makes all presumptions. to defend he believes to be guilty. quite irrespective of individual knowledge. which he has derived. in the sense that he has a moral conviction of the guilt of his client. and reputation. The argument that the lawyer cannot know of the guilt of his client until he has been officially adjudged so. until his guilt has been officially and finally declared. and that his duty to forms of the law are carried out." This utterance. Why could see that the . might be used with equal force by an accessory after the fact. because he often does know. was made in a great public case. puts the heavy influence of perhaps a mistaken opinion into the scale against the accused. I do not place the right a client.158 THE AMERICAN LAWYER. by a court and jury. I place the right of the lawyer upon the ground it is that he is an officer of the law. whom formation. through the ordinary channels of in- and upheld. yet the principle applies to every case where law can be invoked in behalf of a party. upon the ground that he cannot know that his client is guilty. and which commands the veryjudge to be his counsel.

An accessory after the fact is a person who knows a felony to have been committed. is An accessory before. 159 not every accessory after the fact declare. or assists the felon. If the parent assists his the — . There- make an accessory ex post facto. or abet. or who. to punish. and who relieves. given to a felon to hinder his apprehension. or abet. to rescue or protect him. And so strict is the law. money or victuals to support him. where a felony is actually complete. had not been adjudged judicially guilty? In every civilized government. with the same reason as the lawyer. severely. as. trial or punishment makes the assistor an accessory. aid. or open force and violence. furnishing him with a horse to escape his pursuers. after its commission. or punall persons who aid. commission of crime. in the ishment. a criminal to escape detection. or after the fact. in order to do effectual justice. And generally any assistance whatever. it is in first place requisite that he knows of the felony committed. fore. that the nearest relations are not suffered to aid or relieve one another. because the person whom he had assisted. a house or other shelter to conceal him. rules are adopted in the body of the criminal jurisprudence.THE DUTIES " OF A LAWYER. that he could not know that a crime had been committed. capture. recognized as almost as bad as the principal criminal. to comforts.

real service do not believe that any can be . If these views be correct. with what strictness and severity.160 child. the master his servant. But the lawyer's duty is not to aid or assist the guilty to escape although that may be the result of his efforts but it is to see that the forms of the law are maintained. of the guilt of his client. or the servant his master. however. or even receives his wife. criminals to escape their just and necessary punishment. for the maintenance of society. or shelter. does not come within this rule. A married woman. and all advocacy in his attempts to acquit clients. THE AMERICAN LAWYER. if the brother the husband receives the brother. if who have any of them com- mitted a felony. that the lawyer's duty. We see. the receivers become accessories ex post facto. is quite clear. without a resort to dishonest and covert means and practices. or assist. because she is presumed to act under the coercion of her husband. the hand of the law is uplifted against those who aid. if he simply demanding that the forms law be carried out. To do this he can — — knowledge and experience. or the child the parent. therefore. it would seem to follow. And and I the confines his efforts to rules of the community cannot suffer. or a moral employ his of the arts of conviction. to defend a person in those cases where he has a belief.

acting in aid of the Judge before ministered. whether he will aid. or in considering any more conception with the himself to determine. whom they practice" —the lawyer — cannot go far astray. Lord Langdale. that a court is a place where justice 1 is judicially ad- and the remarks of an eminent Equity Judge. With a of the general nature of his duties. would give us a race of ideal lawyers at once 1 l Keen. it is court in the real meaning of the term. that "lawyers are ministers of justice. if it could be followed. the lawyer becomes the most useful and important member of the community a true patriot of his country. 659. justice. a faithful and intelligent representative of his client. lawyer No special rules can be laid or defeat. and a useful officer of the court." p. nearly four 2 centuries ago. all for kinds of conditions constantly condown. K . Court. And Christopher St.: THE DUTIES OF A LAWYER. in the discharge of his duty. front him." p. laid down in beautiful but strong language. In the complete performance of the latter. a rule which. Keeping in view that he is an officer of the specific full propositions. Germain. of the Laws of England. 15. " Reports in the Rolls * "Doctor and Student. 161 rendered to the profession by pursuing this line of thought further. the author of the immortal Dialogues between a Doctor and a Student.

I trust the lantern that is in thy conscience shall never be extincted. comes of training and education." "And I counsel thee. self-denial." But this conscience. and fly that which is evil. part of his legal education.162 THE AMERICAN LAWYER. is set in a lantern. not wholly innate. so Almighty God hath set Conscience in the midst of every reasonable soul as a light whereby he may divine and know what he ought to Wheredo. and genuine hard work. and most important. that thou love that which is good. it is the result of an exact and perfect study and comprehension of and duties of a lawyer. it doth not spring up spontaneously or by intuition. which should guide the It is lawyer. it is necessary that thou ever hold a pure and clean conscience. forasmuch as it behoveth thee to be occu- "As a light is in the pied in such things as pertain to the law. And if thou do thus. It should be first. the office made the . Along with. that all that house may be seen thereby. that thou do to another. and then. that thou do justice to every man as much as in thee is. at some time to master the history and science of the Law itself. the lawyer is bound by study. and what he ought not to do. thou do observe and keep equity. that thou do nothing against Truth. and also that in every general rule of the law. and as part of it. fore. as thou wouldest should be done to thee.

keeping in view. he should enlarge his sympathies. and creed. or the self-asserting. otherwise. and prepared. All his powers. mind all and seek to eliminate from his narrow prejudices of nationality. on the other. in the clearest and fullest sense. on the one hand. even when accompanied by mere honesty of purpose. but humane and generous. by nature and circumstances. or flippant. . To a man of his so equipped is whole duty. always. race. that his standards of men should not be the abuse of the ideal. and run into the impractical and visionary. may become the limits fixed the cause of great evils.THE by a course " DUTIES " OF A LAWYER. 163 of liberal reading. the vision soon opened to him.

An old and pernicious system. and its evil results. and build a new one in its place. Attorneys. now. They bear fruit. and to suggest remedies. for they are. as one would raze a house. They very rarely produce a full crop in the season in which they are sown. in if my opinion. and it can be hoped. the present generation of lawyers. to attempt to reform. evils. scatteringly. CAUSES AND REMEDIES. cannot be extirpated. Therefore it would be useless. divided into two classes. The seeds of reform are of slow growth. or Solicitors. The ground can be prepared. inextricably. will take effect upon the next generation. I proceed now to classify the existing con- ditions and their causes. as a whole. — or Barristers. that eventually a new race of lawyers will appear. which. and new ideas of reform promulgated. until by degrees the whole edifice is sound. not exterminate. involved in the meshes of codification. and Counselors. which.CHAPTER X. will essentially mitigate. existing 164 . A conspicuously rotten plank may be replaced by a new one.

(a) and instruc- In length of time of legal apprentice- ship. IMPERFECTIONS. It must begin at It must be contemporaneous with the bottom. A person a to who possess real. under the direction of properly appointed. qualified.CAUSES AND REMEDIES. Insufficient educational requirements and examinations preliminary to matriculation as a legal apprentice. the Latin language and general should know literature. AND LEGAL EDUCATION OF LAW STUDENTS. No certificates from should be accepted. preferably Spanish. wishes to study law should elementary education. legal apprenticeship. II. Reform of the law cannot be superficial. be able to pass an examination. . ELEMENTARY. Deficiencies in education tion of law students. but each candidate should pass through the ordeal. and. also. AND LOOSENESS IN THE PRELIMINARY. in its addition the other necessary qualifications. examiners. or schools. and colleges. I. It must go to the root of the evil. He should. of an actual examination. in one other modern language. 165 FIRST: THE FIRST CRITICISM IS THAT THERE ARE GENERAL DEFICIENCIES. from our expected future relations with that race. as proof of these requirements.

it be confidently asserted.166 THE AMERICAN LAWYER. connected therewith. in its origin and purpose. evidence. (d) No instruction in the functions and duties of legislators. instruction in the primary principles and elements of jurisprudence foundation. advocate. in a law office. or inadequate. — may Notwithstanding this ignorant criticism. nature. instruction in American historical. and practice. (c) No. It should be not less which three. or insufficient. and professional ethics. than seven years. it is ercise. To say of one "he is a purely criminal lawyer" involves. and in the pleadings. In fine. of be actually spent. object. (/) No. as a (b) Absolute want of instruction. it is assumed. but i and practice the time struction is too short. of legal apprentices. should clerk. and has an able man to perform the function. . It is avoided and shunned as rather disreputable. instruction in criminal jurisprudence. and the in- to fulfill this requirement in and attention neces- sarily superficial. that the study of criminal law. or insufficient. It is fashionable to taboo this branch of jurisprudence. Columbia College undertakes one of her courses. and citizen. and Federal and State. that he does not occupy a first rank in the profession. law. a certain obloquy. and 1 spirit of laws. awaken and exthe best mental and moral qualities of lawyer. (e) No. constitutional. in the functions and duties of lawyers.

not a word. which should be dropped from a legal course. clinical training. The abolition of "case" law as a fundamental means of instruction. 167 impossible to conceive of a great civil lawyer. Most of . the greatest institutional is writer. 3. has not considerable knowledge of criminal law. instead of elementary Blackstone. substantially as follows 2. or insufficient. who III. in the office of a practicing lawyer. but a judicious selection can be made by competent lawyers. in his commentaries. Deficient and non-systematic education in all of the branches of law. and Walker's American Law.: : CAUSES AND REMEDIES. from Law are superficial. Evidence. Case law is taught. and Kent's Commentaries. Requirements of law examining boards is Academies and practically abolished. and Practice the — 1 Except in a few instances I do not mention the text-books which should be adopted. The study of institutional law. There Colleges. (g) No. and the introduction of the study of law from text-books. law. In addition to prolonging the apprentice1 ship to seven years I advocate the following 1. by a complete mastery of Blackstone's. them are good and bad ones. There are too hastily put together. Pleadings.

foundation. and d'Aguesseau. 13." Judicious Selections from Savigny. embracing Federal and State practice. Constitutional Law. 6. The law of corporations. or education. Domat. Macintosh's " Discourses on the Study of the Law of Nature and Nations. 8. and spirit of law. study. 14. The law of personal property. The law student should know the history of the re- . and the principles." Montesquieu's " Spirit of Laws. Equity Jurisprudence. and Equity and Common-Law practice. 11. 10. Criminal Jurisprudence. upon the history and chronology of the law reports.168 latter THE AMERICAN LAWYER. 12. Pothier. 7. The law of real property. 15. 5. Natural and civil law. including Federal and State. 9. The law of Executors and Adminis- trators. A course of lectures." Puffendorf. The law of principal and agent." Burlamaqui's " Natural Law. with such books as the following : < Paley's "Moral and Political Philosophy. The domestic relations. together with the principles of legislation and the duties of legislators. The law of contracts. Grotius. 4.

it can be converted into a delightful occupation.. RATHER THAN SUBSTANCE. the study should be begun in a natural way. under proper tuition. TO SAY NOTHING OF ITS BALEFUL INFLUENCE UPON THE LAWYERS. the development of the law. (1) DELAYS. are necessarily encountered topics by the student in his general reading. (2) COSTLINESS. 1 they were published or promulgated. and all of the other subjects omit1 1 ted. 169 and where. : logical and historical SECOND the existing state LAWYERS ARISES. AND (3) UNCERTAINTY. such as Admiralty and Patent Law. BY WHICH THE PRACTICE OF THE LAW IS CONCENTRATED UPON FORM. FROM CODIFICATION. ports. primarily. But. and. ALL PRODUCING THREE OF THE WORST ENEMIES OF JUSTICE AND JURISPRUDENCE. SO CALLED. and when and how it is commenced and pursued. trary. This order of legal study is of course arbiThe study of the law. INVITING AND CREATING WHOLESALE TRICKERY AND SHARP PRACTICES. It de- pends upon the tuition. 16. The study of selected cases. They can be specially pursued if desired. E. . but these. and under what circumstances. have not embraced all of the involved in a complete legal education. instead of being a burden. and an effort. of the law and PRINCIPALLY. commencing with the organization of society. can be made interesting and fresh. and opening up to the student.CAUSES AND REMEDIES. I.

and proceedings of the courts of this State. and the practitioner under the Code. has written own epitaph. Reformers indulged in the futile. Among other vain pretensions. or standard. The Code has earned its perhaps. and to change wholly the so-called grade." The effect of the introduction into American illogical. and proceedings courts of this state!" How own the irony of legal history frowns on this or. 3339: " There is only one distinc- suits in equity.170 THE AMERICAN LAWYER. and the forms of form tion of civil action. 1 1 Sec. attempt to amalgamate law and equity. multiply. The those actions and suits. is the difference between a surgeon and a butcher. fect codification. It should be called: "An Act to complicate. title it ." between actions at law and . of all its its intellectual been to deprive the practice science. have been abolished. Jurisprudence of ignorant. render uncertain the practice. befog. to simplify and abridge of the the pleadings. and ignorant. it would be more truthful its to say. assumptious sentence. and pleadings. has and imper- of law. Behold the title to the New York Code of Civil Procedure! "An Act practice. The difference between a common-law lawyer.

Since the adoption of the Code in 1848. statement. and its forms and . And. from a study of the elements and principles of jurisprudence. has been to divert the student. forbetween law and equity is abolished in New York! The effect of modern American codification.. general. the distinction — index! I only indulge in this single. relief. CAUSES AND REMEDIES. that one cannot cast his eye upon any part a daily bath. and to convert him into a disputer of the meaning of statutory language. they carefully preserved. 171 At the same time. which is not receiving courts new interpretation from the or without stumbling The effort to upon some gross blunder! make the law. in what were known as Special Terms —where trials were had without a jury. It would require books as large as the three immense volumes of the New York Annotated Code of Civil Procedure and these contain only 4704 pages of closely printed matter including the arate existence of these sooth. without the sep- two systems. thousands of litigants have received purely equitable is Jurisprudence impracticable. of of the Code. are engaged in the pursuit of technicality and form. the Courts of Equity. sweeping. I cannot undertake a full criticism of codification. (as witness the banishment of Blackstone as a whole) upon which the maxims and rules of the law are founded. the Courts and the Bar. Instead of seeking the truth.

ignorantly. Never. was the system. We have had in New York 1848) of nearly sixty years codification. more completely and handsomely. THE AMERICAN LAWYER. and right. to cause delay and expense in the administration of the law. an open book to all. in practice. has cost millions of dollars to suitors. in the old system. upon which public sentiment was created. justice. it has ruined at least two generations of lawyers and it will probably ruin two more. called "law reform. of experience (since and the experiment has been a lamentable failure. of the it — common law. complained of." has now been thoroughly exposed and exof common-law ploded. containing records of disputes upon questions of form and practice and to substitute these latter and minor considerations for those of substance. We have now every one of the evils. to the whole of the law.172 practice. of the violent criticism of the practice and pleading. In money. fallacy. and technique. and principally. of silent wit- vindicated. without the certainty which had been evolved from it. — — — — The forms. Invoke the thousands . has been to lower and cheapen the profession of the lawyer to throw the law into inextricable confusion and doubt to entail vast expense upon suitors to create law libraries filled with worthless books. to influence what was. or its harmonious relations. as a science.

the manifold delays and intricacies of legal procedure. York. nesses. arose out of mere questions of form and practice. to extirpate a whole system to correct a few evils inseparable in some shape from any system. It . and supplied all deficiencies. the attempt to simplify has been to bemuddle.CAUSES AND REMEDIES. or the ability. struck a blow at the most prominent feature of the law. never arbitrarily imposed. and its practice. simply the work came from the impatience of those who. but. most of the cases. in the shape of legal precedents. or who had an ambition to reform. not understanding what they destroyed. calling for amendment. when a few simple amendments would have remedied which testify that in the all to dig redundancies up whole. without the time. itching for the title of law reformers. confound. To say nothing of the extra costs and expenses. than to understand or who. and destroy to produce a — . collected in 173 New on the shelves of law libraries. found it more easy to destroy barbarians. enshrined law reports. to accomplish it. The forms of the common law. but the wellconsidered growth of ages of experience. all that was needed of —was. when the pruning knife was to my mind. may have been the subject of some just criticism. to cut down and cast out as worthless a whole body of judicial procedure.

in the Code. Out of the confusion. He has become a mere "case lawyer." he stops at mere form.174 race of THE AMERICAN LAWYER. sophistical. and chaos of codification. from the study of the elements and principles of jurisprudence. but when their sparkle. qualities are put in a proper crucible. I am of course speaking as a whole. have diverted the legal student. They shine. that it is almost impossible to detect their spurious quality. and encyclopedias of law. there will gradually be formed. and made to shine by false and artificial lights and colors. and emeralds has attained such a state of perfection. to a search after cases. and foren- lawyers. in the hands of an expert. illogical. rubies. a . or first water. practice. doubt. without the magnifying glass. The modern Codes produce artificial or paste lawyers. and unjust distinctions and arguments. The multiplication of precedents. The manufacture of artificial diamonds. and forms. they are found not to be of the real quality. and blaze at a distance. in efforts to defeat real justice. analyses. pigmy lawyers. chattering and quarreling over the meaning of words. has invited and encourages technical. They are put together quickly. narrow. Legal digests. and perfect moral. Codification has prevented the full development of the sic qualities of intellectual.

CAUSES AND REMEDIES. For example. practically. much unnecessary and unfounded litigation is inaugu- and many disgraceful practices engendered. which. AND THE MORALE. be not the evil to some otherwise more Facilis descensus Averni. to procure an attorney to make a defense to a suit. like the ravages of a prairie fire. still perseveres. because necessarily many of the law- yers depend. if the legal lost mind. leaving everything black and ruined. in his devastating work. upon professional knowledge and accomplishments. in a jungles. way-worn and come traveler. fate. but upon sharpness and cunIn the effort to sustain themselves. and litigation. pracand procedure. logical tice. and continues illegal. demands. in its course. YERS. And the codifying fiend. spreads over the whole system of jurisprudence. THIRD: THE EXCESSIVE NUMBER OF LAWBOTH TO THE COMMUNITY OF THE PROFESSION. where there exists no rated. IS DETRIMENTAL. and after years of experiment we will land exactly at the spot from which we started. Already there have been. that like is. three codifications since 1848. how many lawyers' offices does an individual need to visit. of legal forms. encourages. 175 and compact system. un- founded. . which will closely resemble that of the common law. and fraudulent practices. not ning. It creates.

The lack of respect for the Judges. It An number would follow. If one sensitively honest lawyer be found. naturally. He will. or an entire de- women spend days Cunning and trickery often displace real knowledge and ethics. curtail the number FOURTH: the general lack of manners. a whole cause of action. or a present. have briefly outlined would immediately operate to of lawyers. lawyers makes the profession cheap and common—pleexcessive beian. But when an individual wishes a lawyer to interpose a dishonest defense. if he wishes to institute an unfounded. AMONG THE MEMBERS OF THE BAR. how much of the obloquy should upon the of. fall Besides. And he will encounter the same experience.176 meritorious THE AMERICAN LAWYER. But do not place all of the blame upon the shoulders of the lawyers. possibly. or a brooch. action. not go beyond the first office. he will probably not be fatigued in the effort to find him. or unjustifiable. ens of others who will act. as by not . The lawyers will weave from a mere thread of truth. AND THE ALMOST TOTAL LOSS OF AN espHt de COrpS. or substantial answer? Men and in searching for a peculiar kind of precious stone. such as I here. there are dozfense. clients? badly trained. that the introduc- tion of a system.

habitually saluting 177 want them with uplifted hat. THE ADVENT OF WEALTH. the respect for of the age and experience of lawyers. Lack of manners. of it is and moral influence. OF ARISTOCRATIC. and of the long and studious vigil? . POSITION AND DISTINCTION. It FIFTH: has enabled its possessors to buy. its members. any profession selves." "The degree is of estimation in which held becomes the standard of the estimation in which the. of what use. AND LITERARY. positions. professors hold them- A good-sized book could be written upon this aspect of the subject. is the formation of character. and. is When such a criterion adopted.CAUSES AND REMEDIES. REFINEMENT. which should be refinement and This has. produces a contempt for each other. TO THE EXCLUSION OF INTELLECTUALITY. As Burke says. OR SOCIAL. undoubtedly. affected the prestige of the legal profession. then. for the possession of plunder. CULTURE. like a fight between ruffians. AS THE SOLE CRITERION. by real merit. evident that the ambition to excel by right methods must be crushed. making the practice of the law. which we follow. for the profession. and deprived true ambition. discourtesies brother among lawyers. or secure. political and only social attained learning.

and where their compensation. fields of practice. The THE RADICAL CHANGES WHICH HAVE OCCURRED IN ALL PROFESSIONS AND BUSINESS AND COMMERCIAL OCCUPATIONS AND RELATIONS. (very soon it will be through politics alone). which has been to deprive the lawyers of a large part of their old business. technical. then. where they become associates in business adventures. not law. become the aim and end of the lawyer's aspirations. good business judgment and acumen. fact that the profession of politics can secure judicial positions. instead of pure counselors.178 THE AMERICAN LAWYER. where hard common sense. such influence as the profession gives. IN THE FOLLOWING: Changing law into a business. can be obtained through politics. If fame and power. is based upon the ultimate outcome. and profits. effect of The . and professional honors and emoluments. tends in the same direction. and to drive them into new. will be enlisted on the side of politics. supplant profound. and adds a positively corrupting element in the lawyer's ambition. RESULTING. and perhaps more important. SIXTH: The institution of incorporated companies and agencies to transact conveyancing and legal business with cheapness and guaranties. legal knowledge and ability. of the business. INTER ALIA. and politics.

TO A GREATER OR LESS DEGREE. FRIENDLY. tending more and more to degrade the law into a mechanical occupation.CAUSES AND REMEDIES. EIGHTH: the existence Whatever tends. also tends to lay open to . OR OTHER SOCIAL. and finished legal arguments. 179 Rendering the study and practice of forensic eloquence. unnecessary and superfluous nay almost ridiculous. one of pure commercial business. — SEVENTH: the increase of litigation HAS CAUSED (PERHAPS. otherwise. IN JUSTICE TO THE BENCH. I SHOULD SAY " FORCED"). SUSCEPTIBLE TO POLITICAL. classic. These rules. of ornate. OR EVEN CORRUPT. INFLUENCES IN THE PERFORMANCE OF THEIR DUTIES. to lower the proit fessional standard. with all of their elevating and refining influences. THE ADOPTION BY THE COURTS. They do not so much produce brevity of speech. and render useless the cultivation. WHICH FURTHER LIMIT THE TRUE SCOPE OF THE LAWYER'S FUNCTIONS. as they destroy the taste. and eral all those habits of mind which connect the profession with literature and genknowledge. OF RULES. make the occupation of a lawyer. of an undefined FEELING AND SENTIMENT THAT JUDGES IN CERTAIN LOCALITIES ARE.

It makes it appear to the litigants that it is necessary to select not an advocate of a higher order of intellectual endowments. and without regard to the harmony of the judicial system. or opinion. upon the mind of the judge political —one to whom. This is the worst species of corruption because the judge. free from actual bribery. legal in cases of intricacy or doubt. judgment of the highest importance the judge can throw his discretion.— 180 THE AMERICAN LAWYER. the bar upon the and the com- munity. concealing his judicial discretion in a mist of meta- — . But this sentiment of our larger cities. this imputation. or is the question "close" is —when where strict. in favor of his friends. How select often we hear these re- marks: "What Judge shall shall we bring this before?" from the Bar to argue "We cannot argue this case before Judge X?" because he is the intithis case before Judge mate associate of the plaintiff's or defendant's counsel/' as the case may be? In most instances this is a cruel and unfounded reflection upon the "Whom we X judges. independent. or legal learning. but one exercising a supposed moral. Not undoubtedly exists in many necessarily based upon its the physical corruption of the judges (a rare vice). —there results is a moral corruption. or influence. equally as bad in judges.

awards the judgment. and on the administration of the law. IT IS NOT BAR. and resort to means which more certain of success. it is sure great hardship and wrong would occur. The natural demoralization. without client. readily. stifle own ability. and to the real equities of the case. TO SOME EXTENT. It is one of profound importance. that in instances. without a possibility of redress. sacrifice their own convictions. appreciated and the clients and courts do not escape their are — the contagion. The power and wealth I refrain of our corporations are so tremendous. NINTH: THE ENORMOUS EXTENSION OP THE PRACTICE OF CONTINGENT COMPENSATION. as bearing on the morale of the profession. POSSIBLE. In litigation involving large and important results. The power . contrary to his inner conscience. which such conditions have upon the bar. 181 physical doubt and false reasoning. the lawyers who breathe in such an atmosphere. It is also one of great delicacy. many some arrangement beof a contingent char- tween lawyer and acter.CAUSES AND REMEDIES. TO SAY. from expressing any final opinion upon this subject. EXACTLY. can be. HAS UNDOUBTEDLY AFFECTED THE CONDITION OF THE HOW GREAT.

making the lawyer a . conin party to the suit. litigation. often of a doubtful character. or divisions of profits. of these bodies. In those instances. the ordinary difficulties which surround the subject. with lawyers. the question of fees is changed into commissions. with the increase of litigation. without litigation. do not prevail. When the interests of justice. client. and concentrated methods. and when the fee itself in no wise takes advantage of his necessities.182 THE AMERICAN LAWYER. besides. has increased. on behalf of a poor. necessarily. are almost overwhelming. The uncertainty. Without contingent arrangements. or helpless. can be subserved. a formulator of It is. and therefore. and with professional honor. such practice generally can be reconciled. of the results of an appeal to the law. and is not the direct cause of much unfounded litigation and blackmail. where pure commercial business results are sought for. But the point is whether the practice of contingent fees has not outgrown all just proportions. with the interests of the community. and the lawyer being transferred to a mere agent. The sists ethical objection. to contingent fees. their power would become oppressive and tyrannical. and this adds another powerful motive to contingent arrangements. and a perversion and confusion of the mind of the advocate. a kind of fraud upon the court.

pro the outward shows be least themselves is yet deceived with ornament. and. in England. " So may The world subject. distinguishing them from suitors and spectators. 183 the non-existence of a division of the bar into two classes: 1st. and making their calling a marked one. p. many cause- ELEVENTH: the lawyers should wear a IN COURT. in Court. alone. 1 I alluded to this subject. profession. the vast changes in.CAUSES AND REMEDIES. in awakening and holding the respect of the community. require the profession to be divided into two classes. he effectually controls the vast audience before him. for the In the administration of justice. and no matter how pusillanimous in figure or mind. counselors or barristers. of. I think have already I have said that this division would. the factitious influences are very great. : TENTH decided No matter how this question might have been many years ago. which tends to decrease the respect of the community. 2d. is another element. or badge. GOWN OR APPROPRIATE BADGE The fact that lawyers do not wear a distinctive gown. . The single judge sitting in his judicial robes creates a certain feeling of awe. 81. 'Much has been written upon this and con. attorneys or solicitors. and increase business." but I have felt it unnecessary to open it fully here. See ante. stop less suits which are now begun.

and securing sometimes restrains it. is the saving ingredient in the composition of a democratic liberty. employment. I hope it is unnecessary to say that I love the profession. I shall Here end. as far removed from commercialism as possible. Trained in the knowledge of human nature. it seems to me. The freedom of some of my remarks will doubtless create antagonism in some minds. is growing dim. the lawyer is a character which the the best interests of its Apart from his individual community should be interested in maintaining and not depreciating. permeatall its ing and vitalizing it branches. The Bar. and have at heart members.184 THE AMERICAN LAWYER. and necessarily the people are less interested in public questions. The distinction between a federation of States and a Nationality. His mind and training incline him to free and pure thought and independent judgment. when he enters the field of jurisprudence and politics. his acts and mestic opinions should be of the greatest value to the would build up a race of pure lawyers. while system of government. The country needs such a class more than ever. where his mind is naturally affected by the bias of an advocate. in its pristine people. That judgment is constantly called into exercise in every description of do- and personal concern. I vigor. in the and political happiness. It will interest of social .

however.CAUSES AND REMEDIES." . an entire sympathy. it should not have written. have called attention. as the life of which has formed so large a part. to us all. The welfare of our is as dear to me. and has had the least opportunity of actual contact with certain kinds of practice. and for all those great purposes. With such I have Long and many-sided ex- perience and observation. 185 probably be the strongest where the lawyer himself is the purest. I can pity the temptations with which it abounds even while I urge its reform. "Of this I put myself upon the counto which I try. convince me of the truth of what I have written. on a large scale. He will think that he advocates the interest of the profession by denying the existence of its evils. I must freely and in the venerable language familiar maintain. Otherwise I noble calling. in all those respects. That reform is needed.

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