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

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the United States on the use of the


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

by JOHN R. DOS PASSOS .Jopyright. 1907.

and the Bar. the Literature. and his under which he Oath is Authorized to 50 CHAPTER Nature of Lawyer's Vocation VI 68 iii . the Stage. since the Civil War 35 CHAPTER V The Education of the Lawyer.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.

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

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

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

which underlie human society. 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? . Men do not like to confess. natural conditions. except to themselves. and while their works have done something. Hence the enormous importance of those aspects.. which. and then to inquire if they have lived up to it. 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. yet its more comprehensive relations have escaped them. he is very apt to run into a confession. accurately. they are unable themselves from technical and professional restraints. have hitherto received but When little recognition as living forces in society. the due relation of lawyers to other interests of the community. within to free itself. to reduce the law to a science. He must then say some ugly things about himself. while doubtless felt in a dim way. lawyers become authors. But beyond when a lawyer under- takes an honest introspection of his profession. all of this.4 the THE AMERICAN LAWYER. It is of the first importance to endeavor to ascertain. Hence.

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

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

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

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

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

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

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

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

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.38 THE AMERICAN LAWYER. courts of is justice. the left hand doeth. institution —the head sums prizes of A newspaper is which is a "busi- ness manager. and policeman. magistrate. and the plans and details are blazoned . and miscellaneous bureau! — in It must be admitted. A newspaper as thus con- ducted cal. and financial support. of philanthropic measures. politi- put motion by individuals to make money. They furnish the sick and fever-heated needy with ice. literary." 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. but the whole body is advised thereof. however. and the hungry with soup. and espouse the rights of the public in the civil — — money for these establishes na- detective bureau. and perform manifold deeds of genuine benevolence. and often to advance personal and political interests. sporting. self-supporting newspaper. a bureau. They hunt down criminals and boldly usurp every duty of the district attorney. longer a guide and a teacher. not a journal! —a self -estab- lished. they establish summer and winter homes for the poor. now an ties.

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

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

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

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

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

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

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

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

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

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

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

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

it naturally appears an assemblage of arbitrary and unconnected rules. as a system. A candidate. knows nothing of moral philosophy. or the mission a lawyer. Kant. 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. pervades and influences all legal education. But if he approached it with a well-grounded knowledge. in general.THE EDUCATION OF THE LAWYER. Domat. with comparative ease and rapidity. where remedies are dis- 2 Austin's Lectures. III 362. Montesquieu. incredible. and with a map of a body of law distinctly impressed upon his mind. I mean based upon codithe sentiment of codification. . or organic whole. without some previous knowledge of the rationale of law. he might obtain a clear conception of it. But it is true. Savigny. cussed. Austin. The fact is extraordinary. Neither Paley. One cannot blame the of legal study is professors. professional — — — — and rarely at all. nay." 2 i ter See in this connection ChapX. of the general principles of jurisprudence. The curriculum fication. of ethics. 1 "To the student who begins the study of English Law. Burlamaqui. 51 attention being paid to their duties to the State. through the ordinary course of preliminary legal study.

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

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

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

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

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

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

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

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

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

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

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

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

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




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.

writ. signed to a summons. if not totally destroyed. the lawyer's vocation has been enfeebled. in law. he can issue. the action unjustified. 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. The demand may be unfounded. or the most influenIf the tial citizen or corporation. apart from this fact. he is an officer of very great authority and power. is the beginning of legal proceedings. is the fountain head from whose source all of client. process which will bring into court the proudest millionaire. He is the sole officer authorized to cause a civil action to be begun. — commands the appearance in court of the highest or lowliest individual in the land. the he is the day after . date. yet the defendant must obey. — — lawyer approves the client's demand. 69 While. At the instance cial He he becomes the offiauthor and creator of all judicial proceedings. a legal processes flow. or cause to be issued. the most powerful magnate.NATURE OF LAWYER'S VOCATION. New York the lawyer issues the original man- His name. or in A lawyer. fact. the whole proceeding utterly without merit. veriest tyro in admitted. The lawyer's mandate the summons. or by whatever name the original process may be In called. as a supernumerary of the court.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

the utility. que sera-ce d'un grand legislateur." Having satisfied himself of the necessity. the justness of the law. or State Legislatures. fulfill their real duties. .THE DUTIES OF A LEGISLATOR. how deficient the modern legislator is! How few there are of legislators in the Federal. How many- which now confuse and perplex the lawyers. good or bad. 25. who under- stand and laws. how many thousands of books and statutes which now encumber the shelves of the Law Libraries." And if this dictum be thought too broad. yet with every abatement that can be made." p. springs from the Bar. would have never existed if these fundamental. would have been avoided. the field of the lawyer's action is still enormous. 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. but simple. 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. fulfill 91 the duties of a legislator! And contrasted with this standard. popular demand. He would acknowledge that legislation. the legislator must — 1 — — » " Sharswood's Legal Ethics. and judges. exigencies of society or situation.

the principle. Why is it that the most profound lawyers shrink from drawing statutes? Because there is no task so delicate and difficult. he must know the in the light of the social 1 described. propres pp. est la humaine. This involves an accurate knowledge of these instruments.92 THE AMERICAN LAWYER. ed. "DeL'Esprit Des Lois. humaine. if a new law be proposed. Ill. then prepare Here he has need of the greatest skill. the facts." Livre I. perfect clearness. 1826. 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. en tant qu'elle gouverne tous les peuple de la i " La " Elles doivent 6tre tellement raison terre. Chap. 135. what words shall be selected to express accurately and the thought. experience. Another important feature of an American legislator is. brevity. it. To sum up: legislator ness. en general. compact above and of all the other considerations If an amendment to bearing upon the subject." Montesquieu. que c'est un tres grand hasard si celles d'une nation peuvent convenir a une autre. 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. . the its just- must determine its necessity. Loi. to be covered by the legislation? Simplicity. an existing law be proposed. with the Federal and State Constitutions. and knowledge. must here be observed. precision. that he must compare all proposed laws.

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

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

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

16. which by its terms discharges the city of Yonkers. 569. Sec. and an order made by the Superior Court for the purpose of making such a transfer was void. erty without process. Code Civ. Chap. 66 is unconstitutional and void. 20. In re Grout. Bennett. C. Pboc. Randall 19. Sec. 48. Providing that estate of 18. 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. 758. 1873. was a pastime. 60 N. does not affect contracts — made prior to ST. its passage. and judicial conflict! " Justinian's task in reforming the Roman Law. is unconstitutional. Otis. and so it impairs the obligation of after contracts. 59. Y. Alexander v. as the effect thereof is to destroy the negotiable quality of the bonds. 856. 711.— The provision of the act of 1880 (Sec. as depriving of lib- for refusal to answer controller's questions. one of the greatest undertakings of ancient history. 90 IS". . Y. upon delivery by it to said institution of duplicate bonds. L. 1876.— The provision of the act of 1873 authorizing the taking of lands for the purpose of such an association. Code Civ. L. L. Chap. S. — 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. L. 204. compared to the herculean labor which is devolved upon the lawyers of the twentieth century. Chap. Sackett. L. 77 Y. 545. 480. N. People ex rel. 4. v. — Committal for contempt void. 1874. 1879. a joint contractor shall not be discharged upon his death. by proceeding in invitum.. 1880. Y. and thereupon giving the latter exclusive jurisdiction thereof. Sec. Assn. Y.96 lation THE AMERICAN LAWYER. 4. In re D. 17. Pboc. Manhattan Savings Institution. v. 452. 93 N.

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

from a period without limitation to a few months after the passage of the act. and not fraudulently conducted. Pboc. article of food. 7. Y. and so is unconstitutional. so far as it prohibits its In re Jacobs. 4. the provision of the act of 1885 (Sec. 102 N. absolutely prohibits an important branch of industry. by the Act tional. 672). Y. Chap. Sec. L. and may reduce the price of an v. 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. Popflnger In order to sustain an indictment under 31. and so is unconstitu(Sec. 1884. 1884. is — unconstitutional." etc. 154. 98. Foster v.— Code Civ. In this respect. 99 N. 27. prohibiting the manufacture or sale of any article " not produced from unadulterated milk. L. The act entitled " An act to improve the 29. Scott. 272. A statute cutting down the right to commence an action upon a cause of action then existing. by prohibiting the manufacture of cigars and preparation of tobacco in any form in tenement houses. Chap. or cream — . 1884. 458.. 90. The State of N. Pleas from appointing Yutte. does not give such reasonable time. Y. Chap. 98 N. in certain cases. 60. L. public health. Chap. Laws of 1885). 1885. 1885. it is. Parmenter v. Y. Sec. in some aspects. a higher term than even Suppose the Bar would seriously statesman. Court of Common v. 136 N. solely for the it competes with another.. not injurious to the — reason that community. 183. 577. ment as enables him to comprehend the wants and necessities of his fellow men. 202. L. 38. a clerk as a referee is un- constitutional. amended by chap. Y. 30. — A legislative enactment which 28. 377. 135 N. L. is unconstitutional. People Marx. 183. Laws of 1885.98 THE AMERICAN LAWYER. Chap. Y.

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

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

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


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.

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

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

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

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

— McMillan v. rel. His trained habits of thought. 90 N. 793. He becomes a breakwater between the passions of excited citizens. People L.110 THE AMERICAN LAWYER. organizing the Equitable Life Assurance Co.— As L. 173. 176 N. void. Chap. void. Y. Chap. requiring courts in certain districts to arbi- trarily regulate preference of causes. 108. Star Co. void.. 1904. Riglanders. 95 N. 657. Chap. amended by L. L. void. 1905. L. all combine to make him a power of great impor104.. v. Y. 463. People I v. 531. as depriving judiciary of right to regulate the hearing by the circumstances of each case. 697. changing method of electing directorate. 1904. to print There are some thirty-five additional acts declared unconstitutional in the State of New me them. 1904. v. or passion is ment aroused.) special deputy commissioner to revoke liquor tax license issued prior to passage. 173. 1853. Municipal ordinance allowing projections beyond building line. S. 96 N. — People ex 105. 106. pause here. besides. aff'd. Code Civ. Chap. and the forms and rules of the law. 1905. Chap. 1904. O'Brien. Sec. Y. — Lord 109. Equitable. 772 . 253. 92 N. 181 N. 655. void. S. as outside police power. as taking without process. S. 365. Proposed amendment of charter of a corporation. 497. About 1904. Proc.— Authorizing taking without process. 107. Lewisohn v. Y. Privilege of witness provided for by Section 342 of the Penal Code not coextensive with that afforded by constitutional provision. — Regulating trading stamps. his devotion to existing rules and forms. the lawyer's influence ought to be great. as L. Y. Y. (May 26. Klaw. S. S. Zimmerman. Space will not permit already nauseatingly long. Flynn. as taking without process. 65. his respect for the law. . the list is York. 94 N. T.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

but the latter go unpunished because. lawyers. 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. and in cases of doubt he is free to act as his conscience dictates. 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. sheltered in the breast of the lawyer. influence. he should not prejudge. or resorting to acts. Of course. honest doubt as to the law. there is no adequate legal evidence. knowingly and deliberately. Yet how are these offenses worse than the conduct of lawyers who.— ! 128 THE AMERICAN LAWYER. stituting the State —who of are interested in main- taining the integrity the judicial system. and all agree that a proper punishment should be meted out therefor. and knowledge. sell their office. are parts of the judicial system. each and all. His oath to maintain the laws. or honest doubt as to the facts. . cannot be performed by giving advice. magistrates. which cause their violation. Is the one class of acts any less dishonest and lawless than the other? Policemen. constables.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

by clearly affirming. with knowledge of the "mor- party in maintaining an unjust cause." offends his sense of what is just and justice. and aiding in the "injuria. ally responsible" for the act of a i Ibid. office. The object in creating courts was to administer How. truth. 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. and are in duty bound to refuse to be concerned for a plaintiff in the legal pursuit of a de- mand which right.THE "DUTIES" OF A LAWYER. 96. in a subsequent x that "Counsel has an undoubted right. if it is slaughtered in the temple of justice. I cannot conceive it." which it is the object of all law to prevent or remedy. 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. then. If anything can be more distinctly immoral. right? How can the law be efficacious. is turns atheist? A lawyer. . p. because he is willfully stabbing justice. honesty. is by its to become of the own chosen guards? What sanctuary when the priest facts.

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

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

in the life of a lawyer. sistible. must inevitably be to the detriment of the principles of the law and justice.' no doubt. hardly a lawyer who has not felt justified. i Legal Ethics. but I have not the means to pay it. law at all events. by a resort to — — technical There at is and dishonest defenses and excuses. it is just and due. The demoralization which is produced. is as great as the violation of any other plain duty. in resorting to such some step practices. may be almost indefinitely postponed. family. And in the tions yet. of defending or postponing and legal claims. 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. The appeal comes to the lawyers. often. 116.148 THE AMERICAN LAWYER. . in a form which is almost irreThis. are involved in it. it becomes perfectly plain that these practices. and sometimes the deepest consequences to friends. p. when the subject is examined even most narrow light of the lawyer's funcand duties. I want all the time you can get for me. presents an every-day picture. it is the general open boast of lawyers that any just and legal claim. of his career. and future prospects.

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

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

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

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

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

made to him by his client. Should the lawyer advise his client to plead guilty? Suppose he gave . that there is a full. because the law prevents him from is In such a dilemma. what his disclosing information. without his confession —which fact might influence the lawyer as to one course of conduct. duty? His mouth is closed by the law. which the confession would supply. upon ititious questions. On the other hand. the same as any layman. or sees. communicated to him in his professional capacity. It may be. is what If meant by a "knowledge or belief. from a voluntary confession. 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.154 THE AMERICAN LAWYER. technical. even if he should wish to speak. there might be a defect in the technical proof against the defendant. and consequently would. and must be conscientiously determined by the lawyer when they arise. its commission. largely. he is a witness." of the guilt of the accused person. the peculiar circumstances of each case. the lawyer has personal knowledge of the crime. be practically disqualified from acting as an advocate. case against the accused. He may also derive his knowledge of a crime. if he is present at. for obvious reasons.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

in favor of his friends. judgment of the highest importance the judge can throw his discretion. or legal learning. or opinion. concealing his judicial discretion in a mist of meta- — . but one exercising a supposed moral. This is the worst species of corruption because the judge. the bar upon the and the com- munity.— 180 THE AMERICAN LAWYER. It makes it appear to the litigants that it is necessary to select not an advocate of a higher order of intellectual endowments. legal in cases of intricacy or doubt. independent. free from actual bribery. or is the question "close" is —when where strict. upon the mind of the judge political —one to whom. and without regard to the harmony of the judicial system. or influence. equally as bad in judges. this imputation. But this sentiment of our larger cities. Not undoubtedly exists in many necessarily based upon its the physical corruption of the judges (a rare vice). 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. —there results is a moral corruption.

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

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

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

184 THE AMERICAN LAWYER. It will interest of social . Trained in the knowledge of human nature. The distinction between a federation of States and a Nationality. while system of government. permeatall its ing and vitalizing it branches. when he enters the field of jurisprudence and politics. His mind and training incline him to free and pure thought and independent judgment. I vigor. his acts and mestic opinions should be of the greatest value to the would build up a race of pure lawyers. employment. That judgment is constantly called into exercise in every description of do- and personal concern. The Bar. and have at heart members. and securing sometimes restrains it. The country needs such a class more than ever. it seems to me. where his mind is naturally affected by the bias of an advocate. 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. I hope it is unnecessary to say that I love the profession. The freedom of some of my remarks will doubtless create antagonism in some minds. in its pristine people. as far removed from commercialism as possible. and necessarily the people are less interested in public questions. I shall Here end. in the and political happiness. is growing dim. is the saving ingredient in the composition of a democratic liberty.

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

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