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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
Cornell University Library
original of this
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. DOS PASSOS NEW YORK BAR OF THE Law of Stock Brokers & Stock Exchanges." "The Anglo-Saxon Century." &c. &c. NEW YORK 1907 ." " Commercial Trusts." Commerce Act.THE AMERICAN LAWYER AS HE WAS—AS HE IS—AS HE CAN BE BY JOHN Author of " The " Interstate R. THE BANKS LAW PUBLISHING CO.
by JOHN R.Jopyright. DOS PASSOS . 1907.
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 his under which he Oath is Authorized to 50 CHAPTER Nature of Lawyer's Vocation VI 68 iii . the Literature. and the Conditions Practice. the Stage. since the Civil War 35 CHAPTER V The Education of the Lawyer. and the Bar.
and in other Capacities.IV CONTENTS CHAPTER VII PAGE The Lawyer's Political Employment as a Legislator. 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 .
Still each is capable of separate. do to the head. terim of these official utterances. as creative forces. in shaping the course and destiny of the nation. and more or less created. —the by the Pulpit. In the inis expressed through the ballot box. A 1 . INTRODUCTORY. and the Stage. but it is impossible to discuss one without keeping them They are parts of a whole. They all in view. and the throat.THE AMERICAN LAWYER. public thought is reflected. bear the same close relationship to each other that the nose. I shall four great organs of public opinion. the ears. It is assumed that what the people of the United States really think or want. CHAPTER I. the eyes. as citizens. the Press. the Bar. not undertake to estimate the relative value of each of these organs.
is by the people. the crude sentiments of the people. that one can fully comprehend the combined influence which these four organs may have upon existing distinctive treatment. both the right and interest of the whole people to delators. perhaps. with a written Constitution. the Press. is most profound and penetrating. therefore. and the Stage. and while they never act in public questions as an organized body as a unit their influence. They framed the former instrument. In a confederation of States like the one which we have established. My subject is the Bar. honest. While this is said to be a government add. capable. It is. of the people. and for the people. it seems natural that the lawyers should predominate in the government. — — that lawyers should be intelligent. in all branches of public and private life. At least. first as politicians. must be filtered through the lawyers. but I must elucidate it. it subject to the lawyers. going too far to and afterwards as lawyers and Judges. by brief reference to the Pulpit. but it is only by acquiring a correct knowledge of them all. The lawyers swarm in all of the departments of the National and State Government. They both make and interpret the laws. here and there. and devoted to the administration of mand . affairs. then as legis- — not.2 THE AMERICAN LAWYER.
cover almost every inch in the extensive field of technical law. and control. pable truth. judicial and legislative. 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. when they swarm in. 6 When hundreds of lawyers are turned out upon the community each year. and . to graze upon all of the pastures of public office. It is a subject more literary and It carries one far beyond general. by the lawyers in respect At least. The reason is obvious. precedent. It has been overlooked. the important region of the lawyer's vocation seems Apparently no lawyer to have escaped them. no one has yet made to their office. it is to be classed among the most important of commands. public the results of an investigation of the profession. and depend upon ethics. the laity has paid no attention to the subject. justice. "Know thyself" was the Delphian invocation. real. than legal.— INTRODUCTORY. In every aspect of life. legal While the multitudinous treatises which writers have published. or neglected. Nor does the Bar make any full. has yet published the real nature of his calling going from the top to the bottom of it. every branch of the government. executive. introspection of itself. He who ventures therein must be prepared to quit the sacred precincts of precedent and stare decisis.
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? . the due relation of lawyers to other interests of the community. He must then say some ugly things about himself. Men do not like to confess. But beyond when a lawyer under- takes an honest introspection of his profession. accurately. natural conditions.. within to free itself. and then to inquire if they have lived up to it. which underlie human society. they are unable themselves from technical and professional restraints. he is very apt to run into a confession. Hence. have hitherto received but When little recognition as living forces in society. yet its more comprehensive relations have escaped them. except to themselves. and while their works have done something. 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. while doubtless felt in a dim way. which. to reduce the law to a science. lawyers become authors.4 the THE AMERICAN LAWYER. It is of the first importance to endeavor to ascertain. all of this. Hence the enormous importance of those aspects.
and that he must be fair and honorable with the Court. the broad title of which. yer in his full relations to society. distinctive. would have covered some of the ground gone over here. Social and Professional Duties of Attorneys and Solicitors. held to unexceptionable purity of quite well understood that to his clients is the lawyer conduct. We look in vain for any adeof this quate. And there are several books on the lawyer's technical duties and liabilities. and all phases of a lawyer's life and of his relations to his client.INTRODUCTORY. without stint. lectures. treatment subject. beyond It is this narrow view. and essays. of his calling. but no one has raised the curtain upon the lawhistorical review of the profession periods. In all of their writings. if it had been sustained in the text. These duties are imperishably i"The Moral. from remote and Sharswood has contributed a little work on Professional Ethics. Besides. Forsyth's "History of Lawyers" is a most interesting obligations 1 lawyers. 5 Some the technical books have been written about of Warren published his lectures. narratives. covering legal romance and history. have been written and published. seems to and to the courts." . one sees that the lawyer's vision have extended no further than to a contemplation of his duties to his clients.
written upon the lawyer's mind. that they start out in professional life. they believe of their calling. but from a failure to appreciate the real and full nature of their professional duties. and bottom of their professional they should serve their clients at all sacrifices. than to attempt to hold up to the lawyer. It then will be seen. that a large number of the lawyers are delinquents to society. or book. it that. is not surprising. with a very inadequate knowledge Fundamentally.6 THE AMERICAN LAWYER. not with malice prepense. Accordingly. I know of no occupation more interesting. a faithful picture of his real mission. They seem to be a part of the milk of his education. at the top career. The lawyers stop here in the survey of their and as there is no course of instruction. which he unconsciously imbibes before entering upon the duties of his office. . which opens to them their full duties. mission. sometimes even of truth and justice.
in connection with a government. trolled. they at least regarded them as effeminate and inharmonious with their lives. profession of the law has been at all times. between the State and litigants. and did not look with absolute contempt if they upon these arts. and honored callThis distinction. THE GENEALOGY OF THE LAWYER. in all countries. and law advisers.CHAPTER II. the man of superior mind and education conBut apart from direct historical data. The and ing. moralists. In England. a body of men whose business and training fit them as interpreters of law standing. literati. the nobles and warriors of ancient times were ignorant of reading and writing. it appears. as it were. a favored There must always exist. It was then. as it should be (but is not) now. All knowledge was locked up in the breasts of Ecclesiastics. to 7 — . who acted in the multiform relation of priests. originally grew out of the superior knowledge of the lawyers. lawyers are a necessary part of civilization.
2d ed. 4. and by their directions their names should be put in a roll. Reeves puts it in this wise: to make some ordering attorneys. is made to individual disputes. and if they appeared to be such. IV. Regulation of attorneys was 2 made in the reign of Henry IV. " His- 2 " History of English Law. and especially that they make no suit in a foreign country. Complaint had been made of the mischiefs arising from their ignorance and want of knowledge of the law. see that proper application of laws. 211 et seq. and therefore. they were to be good and virtuous and of good fame. 422. to make sure of their qualifications. tory of English I. and such as were passed in the above manner "The Parliament began for provision i See Pollock & Maitland's Law. Hen. In England the law began to be cultivated as 1 a separate study in the thirteenth century. who had now become a very considerable body of men.. they were to be received and sworn well and truly to serve in their offices. c. page p. The lawyers gradually segregated themselves from the ecclesiastical system. and an independent order of their own was the consequence. it was ordained by Stat." Vol. XVIII. . all other attorneys were to be put out." I. that all attorneys should be examined by the justices.8 THE AMERICAN LAWYER.
THE GENEALOGY OP THE LAWYEK. so to speak. that his advocacy of his client's interests should overcome his independence. consisted in representing litigants before the courts for money." The lawyer first appeared as a friend and adviser He worked with the latter to sift of the court. and so far as his individual cases were concerned it was simply hu- man nature. by their clients. the justices might appoint others in their room. Now the client can both read and write. " It that is. When the occupation of the lawyer. the intimacy. was enacted that when qualified attor- neys died. as a true friend of the court. being virtuous and learned. and never be received to make suit in any of the king's courts. the client did not understand it. Originally. this ordinance was also to be observed in the exchequer at the discretion of the treasurer and barons. or otherwise. between himself and the court began to weaken. 9 were to be put in their places by their masters (sic). and notwithstanding that the law was simple and contained in a few books. that if any attorney was found notoriously in default. or ceased to act. and sworn as above mentioned. the client could not read or write. and that his usefulness. out the truth and render justice. he should forswear the court. however. should diminish. " It was enacted. of record. but the law is complex .
statutes. for the paths through adjudications. cannot pursue in all of its labyrinths. then applied to the illegal practices of lawyers as they are now. stand in the path of success. are their predominating traits. client and multifarious. most prominent illustrations of this truth. and the it. as it The brakes were is in the twentieth. and that without a trained legal very frequently knows not the way out of the woods himself." or in advocates guilty of collusive or deceitful practices. century. and ambition to win. Fi. and often sweep away moral and legal barriers. Inordinate zeal for clients. the breach of it is the The lawyers are the .10 THE AMERICAN LAWYER. of affairs where individuals are compelled to repose confidence in others. zealousness. delity. are powerful stimulants to human energy. . untiring industry. Human nature was very much the same in the thirteenth.exception.rather than underIn all the varieties zealous in its performance. to excesses in advocacy This has led them exaggeration of facts —and — often to gross which sometimes to crime. not the rule. passed King Edward the First's day (1275). threatening with imprisonment the " serjeant countor. and a statute is cited. legal guide guide. and all kinds of personal sacrifices in the interest of the client. and law treatises. codes. It is a characteristic of the human mind to be faithful to a trust to be over. are mazy and tangled.
The abuse . of power and opportunities. 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. They all of also serve to apprise the present Bar that the evils are not characteristic of this era. and when and how the confidence is bestowed.THE GENEALOGY OF THE LAWYER. sometimes from greed or ambition. is the primary sin for which the lawyers are answerable. they chiefly arise out of their relation to the State. What this power is. But will be set forth in the subsequent chapters. to overstep the limits of true professional bounds. generally from excess of zeal. and not to their clients. and of unlimited confidence.
and I put the old generation of American lawyers on the farther side. and the new ones on this side of the line. I cannot speak with complete knowledge of the It was gradually I was not of it. from instruction and association. to speak with some authority The fundamental difference between of the past.CHAPTER III. however. the old and new regime of lawyers is this: the great aim of the old lawyers was to master the elements of law. and clearness to thought. It is said that comparison gives definiteness well. they depended upon an eloquent presentation of their causes. old generation. I and that we never can without comparing when I became an apprentice to the gathered enough. A PARALLEL BETWEEN THE PAST AND PRESENT LAWYERS OF THE UNITED STATES. they stood nearer to 12 . I thus institute a comparison which I think is happy. understand anything it with something else. disappearing law. I am drawing a line between the period before and after the Civil War.
PAST AND PRESENT LAWYERS.
than the lawyers
their pleasure, to listen
to the advocates; "commercialism" did not ex-
there were less
legerdemain to resort
because that dire plague
had not yet spread itself over and destroyed its science, as it
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
THE AMERICAN LAWYER.
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,
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.
It is a venerable
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
PAST AND PRESENT LAWYERS.
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
application of stare decisis
was easy and
flitters between the thousands of a phantom of the law not as a
I will give
a striking instance occurring in the
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
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.
THE AMERICAN LAWYER.
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.
consisting of a different personnel. after having waived his right to a strict performance of the contract. but the court. nor was its attention called to it in the points of counsel. and no new or independent consideration is required to support the waiver. on either side. which leads the pledgor to believe that a forfeiture will not be insisted upon without an opportunity given him to redeem. did not remember Now previous decision. in entire ignorance of its previous decision in the Williams case! A century ago such a precedent would hardly have passed unnoticed. and that if. conversion. without notice to the pledgor. public or private or otherwise. in the latter case of Toplitz. he is liable for damages occasioned thereby in an action of the note. and hence it proceeded to decide the Topits own litz case on a new line of reasoning. without notice. may the vicissitudes of the doctrine of stare decisis under present conditions were powerfully displayed in the above litigations. B . 17 under which property security for the pledged as collateral permits a sale. declaration. or course of conduct on his part.PAST AND PRESENT LAWYERS. upon default in payment of be waived by agreement. the right of the pledgee is payment of a note. The case of Williams was controlling upon the court. the pledgee proceeds on the note. to so dispose of it.
by virtue of a multiplicity of decisions which cannot be unearthed. Now which which is of these decisions is right. and an ignorance or contempt of the history and spirit of the Constitution of the United States. inasmuch as last decision. was made and as much saved by the fortunate plaintiff in the second. No doubt they are within the recollection and reach of the Bar. such a lack of knowledge of elementary law. unfortunately. . and the binding? Naturally. or logically. disregard of the rule of stare decisis. and. conclusions.18 THE AMEEICAN LAWYER. it But. and of the several States. and of the principles of jurisprudence. without any knowledge of the previous one. Yet thousands of dollars were lost by the unsuccessful litigant in the first case. the whole question apparently remains open. even by the most lynx eyed. or industrious precedent hunter. Alas! for the uncertainty and instability of stare decisis. and those States of the highest courts of the in- dividual years. hardly contradictory statements. in sufficient number to show how sensibly weakened the doctrines of stare decisis has become. This is only one illustration. —say for of the last twenty-five illogical Such a mass bad reasoning. I cannot afford space for others. These views are further illustrated in reading the decisions of the Supreme Court of the United States.
which anyone chooses to espouse. it is because he has no inThat simple enactment.. the Civil War. Courts are ashamed to confess that a precedent which they have made is wrong. The case of Fogg v. tellectual perception. as it were. aff'd 93 N.PAST AND PRESENT LAWYERS. that elementary principles. Fisk * is a good illustration. p. 19 can be imagined to exist. is fencing with the forms of the law. since he does not emerge with a mind scratched and bleeding from the thousand thorns there existing. Legislative. buried — thousands of feet deep under mountains of precedents. that it can be said of it. Let anyone. undertake to enter into the extensive field of decisions. rarely can be brought to the surface. . 713. as was repeated of the "Year Books" a precedent can be there found on any side. "jumped. 61. 652. It requires great courage to overrule a freshly made decision. created by the interpretation of the Commerce Clause if of the Constitution. for example. 113 U. to-day. of any subject. S„ p. have accumulated so fast and thick. By the Code of Procedure of 1 30 Hun's Rep. Legal practice. 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. Y. and most of the time the real issue is buried out of sight. and judge-made law." But I must return to my parallel. and hence it is.
sued out a habeas corpus from the . But his lawyers were equal to the emergency. The plaintiff applied for an order for the examination of the defendant.20 THE AMERICAN LAWYER. He must submit to the examination. The defendant was at his wits' end. It was granted. They transferred the cause to the Federal Court. however. for the motion to transfer. was not traversable under the then Act of Congress. in fact. which in turn affirmed the original order. because but few knew of the existence of the case. The defendant appealed to the General Term of Supreme Court. already begun in the State Court. The order was sustained. was to it. Then he carried the cause to the Court of Appeals. The object^ of the transfer. by a removal to the Federal Court. upon the statement that the defendant could not have a fair trial in the State Court. that the defendant could not cut off an examination. The affidavit that a fair trial could not be had. But the Circuit Court judge held. and those who did cared nothing about avail of a decision of the Circuit Court of the United States. There was not the slightest the ground. The defendant then refused to answer. put himself in contempt. under certain circumstances a party to an action may examine the other party before trial. that the practice of examining a defendant before trial did not prevail in the Federal Courts. New York.
and the lawyer is burdened by the incubus of form and statutes and codes. hot. which springs up as grass. under which he staggers like Christian in the "Pilgrim's Progress. in the choice of remedies. he must be a good business man. holding that he escaped examination by removal.PAST AND PRESENT LAWYERS. precedent at his tongue's end. 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. even audacious. What kind of a mental make-up must a lawyer States tice. and a knowledge of sound elementary law. and he must create. 21 of the United States. and that august tribunal set him free. have almost disappeared. clever. to attain prominence? He must be sharp. a fresh. it the defendant died. with the multifarious provisions of a Code constantly at his beck. and not one word had ever been heard of the merits! Every practicing lawyer can furnish one or more similar stories. so that his clients will not be entangled in the meshes of modern legislation. or make effective. understanding the necessities of commercial development. under these conditions. not. like . wakeful. the great schemes of present times. every year." under the weight of his sins. — When possess. he must be quick of speech. to entrap the unknowing. bold. Real eloquence.
— . to assist their clients in good or bad causes. not disadvantageous intellectually to the latter. the flint musket to the rifle of twelve cartridges. are not sought for. for recourse to them. In point of morals. to the breechloader which automatically pours out its murderous fire every second. than the lawyer of yore. he is withal. The lawyer now boldly enters into the business end of his client's transactions he sells him prudence. small figure in his professional merits. comparison between the past and present is . the lawyers always have been ready. justice. and experience. I can discover little or no difference between the past and present lawyers. or talent. life. armed with different weapons. Powder has given way to dynamite. They cut a In a word. he finds of him. It is a lamenlawyer. to avail themselves of all the weapons at hand.22 THE AMERICAN LAWYER. As a class. Simply. A judicial inquiry into the rights of parties for "points" A means a search and forms and precedents. to have a happy when he cannot have none even in any other kind mental equipment. and he is a better business man. deliverance from them. He has no less brains no less natural intelligence. sometimes even usurping the client's discretion and judgment. the cannon loaded at the muzzle and discharged every five or ten minutes. or in natural ability.
PAST AND PRESENT LAWYERS.
The honest and dishonest lawyers themselves under the same pleas, that
uncertain, because of
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.
common law supplied.
of the Civil
1861, were the recognized
aristocrats of the land.
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,
THE AMERICAN LAWYER.
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
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 expense, of course, of the true Federal system. Stretched to a point when the rubber gives way,
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.
PAST AND PRESENT LAWYERS.
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.
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
was the goal
was the social to which the
THE AMERICAN LAWYER.
of the nation
and ambitious youths strove to reach by heroic efforts
The reason was
Eloquence was one of
the principal attributes of the distinguished ad-
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
The study of eloquence most alluring, as it
unquestionably one one of the most enwhich the mind can
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
illustrating century. which establish the limit of legal oratory. It has always been one of the most absorbing passions of man. to 27 and train his mental to. of language. is languages. true and false. to two hours. faculties. when the legislatures are in session. all of its attendant glories and attractions. is now heard in the United States in a week.PAST AND PRESENT LAWYERS. More involved the character every conceivable kind of rhetoric. crisp. of history. brief. It is a psychological felicity that perhaps preponderTo-day it is the domiates all other ambitions. and poetry . to the actual bone of the The practical. The scenes have The age of forensic eloquence has gone. from twenty minutes. be always ready and physical resolutely and placed in his courageously.in necessarily an orator. of metaphysics and of logic. than Athens or Rome listened to in a oratory. The great book of human nature must ever lie open before him. to be able to stand up before his fellows and be listened to. shifted. with modExordiums and perern lawyer have succeeded. Every oral argument must be boiled down. utterances of the . The study literature. But the real orator has almost entirely disappeared from the legal stage. nating passion of all Americans to talk. orations are abolished by rules of court. defend the causes hands.
the placing of light circumstances the a tell dramatic —these upon the jury. what are called legal "briefs" have expanded. for juries often go astray. who dominate and capture their fellow jurors in the jury room. mainly — because the Bar their learning is afraid to trust everything to and industry. attained before the addresses are made. twist capacity to all and magnify in facts.— 28 contention. I say in general. THE AMERICAN LAWYER. In proportion as legal oratory has been curtailed. in such minds of a few of the more intelligent jurors. I do not mean that wrong is perpetrated. In general. professional success is In jury trials. The his skill of the the are lawyer in handling witnesses. too busy. Of course it counts to be able to "sum up" group quickly the facts together. of from one to five hundred pages leaving nothing to the imagination. to means which a way as to catch the am trying to make clear is. or to instruct an ignorant. The great raise en scene effects are what bring results. To supply that which cannot be spoken. and the graces of rhetoric are neces- sarily banished. The distinction I well. or indolent judiciary. of the judges who are to read them. but not in a greater proportion than long ago. briefs are made to an ab- surd length often reaching a good-sized duodecimo. or intelligence. that in times past the . the results of jury trials are just.
his With a gentle and graceful gesticulation. and sympathetic trousers. without any rage. also of the Philadelphia of Paul Brown. No modern lawyer is apparently satisfied with .PAST AND PRESENT LAWYERS. Wharton. and the copious accents of legal knowledge flowed from his lips and found lodgment in every listener. now and Place an ancient and a modern locomoand one cannot suppress an exclamation. he carefully placed his gold snuff box in front of him. and after many minutes of clever preliminary acting. took from his pocket a bandanna. whether addressing a court or bar. David wore a swallowtail coat and brass buttons. and yet so clear. and began his classic. and strong. ornate. glanced slowly and carefully around the court room. in — jury. he bowed gravely to the Court. silk handkerchief. Philadelphia. are as different as the steam engines of then. So gentle. and yet so keen so deep. 29 advocates and advocacy were different." George M. Before he addressed a jury. The great criminal lawyer. tive together. The lawyers before the war. blew his nose in the true spirit of a snuff fiend. and the lawyers of to-day. voice was pitched so that every word was heard without a loud or dissonant sound. another way exemplified the difference between past and present. In looks and size he was not unlike Napoleon. a buff vest. address to the "gentlemen of the jury.
half an hour. In all ages the habit to talk illimitably has ex- isted. for its master and to evoke clear busi- ness results from complicated conditions: crisp. and quick. It has always been necessary to check them." 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. to tolerate Of course I do not forget the neverfailing tendency of lawyers to talk in infinitum. and not brains. himself unless he can shout and use passionate or furious gestures. a mind practical pre-eminently ability to distinguishable details. conditions there are many cases on the calendar now. and yet having elements it) — of all of these. sharp. that he pect may have twenty but brusquely inform him minutes.30 THE AMERICAN LAWYER. he is often encouraged by an admiring client. or an hour. The judges now to clear his give an advocate hardly time throat. or audience. nor profound lawyer. classical scholar. as circumstances classic demand. who acclaim it "a great speech. of New York as one of the best illustrations of the modern lawyer neither an eloquent nor finished speaker. And after "a great physi- cal" effort (as some wit has justly pronounced of voice and body. X. Hardly a lawyer ever believes he has . what is greatest. and. too many impatient jurors. too rhetoric! much business.
That discussion. In criminal cases there is still room for real and order. . in tones of thunder. rhetoric. reached its zenith its Augustan Era —at — the commencement of the Civil War. all that he has to say. It is sometimes heard.PAST AND PRESENT LAWYERS. as a purely intellectual and classic. or in a calm and seductive voice. both in the courts and the legislatures. I may add. functions the very head and — — . It is not to be expected that lawyers should escape the influence of a war. He uses just those particular weapons which will catch the jurors. or of slick and measured entreaty. When that mode the noblest of his front were gone. had been kept alive by the friction between the States. cases. was superseded by arms. as a first consequence. The truth is that the profession of the law. closed the era of pure constitutional discussion. and how can you blame him for not imitating David Paul Brown? Circumstances truly alter Of course I am speaking of civil trials. or by violent denunciation or inflammatory appeals. and. or really oratorical effective oratory. and it was the most august function of the lawyer. 31 the the most of his time. modern jury lawyer makes He bangs away at the facts anything he simply hammers into his halfhour limit. scientific pursuit. to engage authoritatively in of controversy it. of logic. said enough. regardless Still. in its great aspects. which.
who were without a local center as in England. the creation of new sources of prosperity and power. 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. had been shorn of their highest centralizing motive. successful war. the lawyer has been deprived of most of those splendid qualities." Slowly and noiselessly as the falling tide. until.— 32 THE AMERICAN LAWYER. the change set in. the cultivation of . however deserving. mere fractions of many separate communities. gradually and imperceptibly. the growing sense of empire. intellectual and scholastic attainments no longer win because they are rarely found combined with a practical and adaptable mind. The sensitiveness as to the intellectual value of high legal attainment and effort was lost with the circumstances which had made them necessary. Wealth has stolen his social position. the Bar presented the spectacle of distinct bodies of men who. but were split up into parts often incongruous. Then came the influx of wealth. which once made his office so illustrious in the land. As opposed to these.
that his. I do not mean to broadly assert that the calling of a lawyer has lost all of its honorableness. agencies. rather than a deep and accurate knowledge of the principles of jurisprudence but always an exceptionally good — business man. much of his professional occupation and emoluments have been taken from him by combinations largely composed of laymen. however. influence. in the legal profession. but even there the old guard of lawyers is succumbing to the influences which have wrought the change elsewhere. and the lawyer stands before the community shorn of his prestige. clothed in the unattractive garb of a mere commercial agent a flexible and convenient gopanies. and is disappearing behind the hills of the past like a setting sun. — between. The change more vividly country. that his aristocratic sipated. in the char- acter. by "Title Searching" com- and collection and other mere business whose principal alleged merit towards the community is cheapness. and position of the lawyer. 33 eloquence has fallen into desuetude. and social prestige has disappeared. or that his general influence has been entirely disI affirm. . often cultivating every kind of equivocal quality as the means of success. are illustrated in the large cities of the In the rural districts some traces of old professional life still exist.PAST AND PRESENT LAWYERS.
and influence. learning. moral and intellectual standard has been lowered. a new legal epoch has been born. different in education.34 THE AMERICAN LAWYER. and profound gulf has been made between the past and the present. manners. and out of the prolific womb of national life. and that the natural and legitimate influence. no longer Since the war. which the old regime possessed. lacking the dignity. . a new race of lawyers. and thought from our legal ancestors. a deep exists in its proper vigor. which his office entitles him to wield. has sprung up.
THE STAGE. in national life. — commercial. AND THE BAR. are not ushered in and morals ners. inaugurated in this country by the Civil War. SINCE THE CIVIL WAR. but noiselessly and gradually grow out of prevailing conditions life. and habits of the people. and noticeably 35 . They like — cannot be traced to a certain time and place. manners. that we are deeply aroused to their existence. not only in the national characteristics. and businesses.CHAPTER IV. THE PRESS. was followed by changes of the most radical nature. in the habits. social. but in all proIt fessions. cannot be overlooked that the new historical era. and political No one can accurately fix the evolution. THE LITERATURE. or New epochs by written and the declarations or proclamations as polit- ical principles sometimes are. trades. like the parasite upon the tree. of birth of national habits. manof the people. and it is only when they are fastened upon us. Declaration of Magna Charta Independence. to the sound of trumpets and martial music.
The reader is furnished daily with not only a full statement of the doings of the whole world.36 THE AMERICAN LAWYER. the Stage. because the throbbings of the telegraph give out every minute the news from all quarters of the globe. illustrated. upon the breakfast table. now huge. and then sold for a mere song. and in general literature. in a metropolis. the organs of public opinion. by graphic pictures of the events. Contrasted with those of forty years ago. every morning. to advert to the Press. so in the professions of law. histrionic art. are generally sympathetic. journalism. but he has photographs of the prinaccompanied cipal actors in these occurrences. daily all chronicling the events of the world. pictorial magazines. and this huge journal is placed. quickly communicates itself to the others. before and after the war. As I have said. They are of the Bar. It may at least serve the purpose of an illus- tration of the changes which have come over us. the newspapers are almost unrecognizable. like those of the body. with of fiend- ish glee. The avidity for news — — . furnishes a proper analogy and prelude to a study of the condition of the legal profession. into the minutest details of social and domestic life. What affects the one. and Literature. because a brief comparison between these last-named occupations. with more or less accuracy human and divine affairs —running the whole gamut —entering.
THE PRESS. The editorial has given way to the news column. The central aim of the newspaper proprietor. is to make money. in sensational colors. in the daily and weekly press. The most paper is is striking feature of the modern newsIts function its diversified occupation. have by no means vanished. through the advertisement columns. humor or fancies. however. THE STAGE. and the real purpose of journalism. becomes subordinated to the greed of the age "put money in thy purse. alas. every event calculated to attract the notice. however. and the large circulation is gained by portraying. Wit and humor also abound in the press. His genius is reflected — in the advertising columns. which are strikingly brilliant and clever. or promptu productions frequently appear. if tickle the sions. THE LITERATURE." The personality of the newspaper owner never appears. or arouse the pas- of the masses. 37 our business to knowis going to do. no longer simply confined to printing news and animadverting upon public questions it is no — . Imis ravenous. The genius and talents of the newspaper writers. Advertisements are seduced from the shopkeepers and business community by a large circulation. inimitable and illimitable. It is part of whatever anybody has done. with the choicest morsels of the best classic writers. as mere writings. and which will not unfavorably compare. not always Attic.
They hunt down criminals and boldly usurp every duty of the district attorney." gives promotes all kinds of charieleemosynary and other public works it It — and collects vast it of it purposes awards tional landmarks it — is an intelligence office and The journals outvie with each other in their advocacy. and the hungry with soup. courts of is justice. and espouse the rights of the public in the civil — — money for these establishes na- detective bureau. A newspaper as thus con- ducted cal. and often to advance personal and political interests. and policeman. the left hand doeth. and perform manifold deeds of genuine benevolence. literary. and miscellaneous bureau! — in It must be admitted. a bureau. and financial support. now an ties. sporting. self-supporting newspaper. 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. longer a guide and a teacher. They furnish the sick and fever-heated needy with ice. institution —the head sums prizes of A newspaper is which is a "busi- ness manager. and the plans and details are blazoned . politi- put motion by individuals to make money.38 THE AMERICAN LAWYER. magistrate. not a journal! —a self -estab- lished. they establish summer and winter homes for the poor. but the whole body is advised thereof. of philanthropic measures.
The readers. and death-like headlines. and parading the names of the donors in out. that they are fatiguing. make — conspicuous parts of the paper. and no matter how brilliant.THE PRESS. It is natural that when . its utterances are looked upon with amusement or suspicion. treat the recommendations of the journals with a feeling akin to contempt. The effect of the change in journalism. talented. coming gradually less effective. I need not speak of it. have become so frequent. impossible for it is practically him to establish and maintain a newspaper. 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. is still felt to be held by a kind of sufferance. THE STAGE. And the privacy and sacredness of domestic life! It is an open book. 39 and "trumpet tongued" to the world. and eloquent a writer may be. satiated with sensationalism. to weaken its influence with the people upon many public Its opinions and conclusions are bequestions. if not often directly invaded. An immense capital is now required to conduct one of these metropolitan bureaus. Individual security. of its departure from the real and noble purposes of the Press. gradually. its wails and shrieks. without great financial resources. They lavish and ostentatious gifts. THE LITERATURE. has been.
exist. of course.40 THE AMERICAN LAWYER. or wit. The "theatrical world" also discloses radical changes. literature and poetry. the newspapers are transformed into advertising bureaus. a community discovers that newspapers discuss public questions for the pure pecuniary benefit of their owners. And who goes to the theater to study pure Eng- — — In the main. There are many exceptions. they must lose all moral force as leaders or teachers of public thought. the best we can hope to see is some adlish? . through the terrible ons of ridicule. it holds up to approbation the lives and acts of virtue. In a word. satire. and directly or indirectly. The aim of the proprietor is to catch the advertisers is —that of the advertisers to catch the public. The stage. 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 as the rule. the chief glories of the drama. In its proper sphere. In going to a theater. in its pristine condition. actors. have been entirely divorced from it. but even they have not wholly escaped from the prevailing influence. The new drama is almost entirely realistic and sensational. condemns vice weapand maintains the supremacy of the law. genius. talent. The ability. should be one of the most powerful organs of public opinion.
are frequently consigned to the flames. 41 mirably 'arranged spectacular effect. Shakespeare cannot any longer stand on his own unaided merits. covering almost every and habits. The actor has hardly a distinctive chance to shine. he must be tricked out with the appliances of modern "art" before he can be Descending lower. Myriads turned out upon the world. or the waste-paper basket. closely following prevailing fashions of belles-lettres. majestic. THE STAGE. and a senseless display of tumbling." something in comparison with which the rudest Thespian buffoonery of the ancient time was respectable and interesting. Lastly. Need it be speciAcrobatic feats. we have to "draw. He must "hit" that And the beautitaste between wind and water. which is expected to compensate for any poverty of higher attributes in the actor or the author. books and periodicals are yearly . comedy. comes general literature. trivial puns. vulgar witticisms. with an ambition to do something real for his age. fied? made and shuffling upon the stage tragedy.THE PRESS. — — ful. tossing. The sensual and material tendencies of the age are nowhere more strikingly illustrated than on the stage. all hopelessly mingled together which tend to convert the actors into clowns. ennobling thoughts of a dramatic filled author. But the theatrical manager knows the public taste. and vaudeville. THE LITERATURE.
all of them in a morning all real authors! History. Dickens recounts with inimitable humor. is characteristics productions the effort to say something new. these The great. and science are ransacked to furnish material which. nearly all of the authors of the day. are now only incidental and very rare. judgment tempering into sobriety. To see one author in those days was a sight to be remembered. but does the merit of it rise higher? The solid basis of a classic taste. 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. or to say it in such a way that it may appear to be new. geography. insure may yield the requisite attraction to admire the ingenuity displayed in all this. expression. When Madame Leo Hunter gave her fete champetre. but Pickwick had the felicity to mingle with." to be an author. and We may species of writing which so largely influences the mental habitudes may be roughly summed up . and talk to. but one of "knack. conceivable theme of leading human of thought. and invention. tortured into a thousand — shapes. It is one of the wonders of the age to see how many men and women have devoted themselves to writing books.42 THE AMERICAN LAWYER. It is no longer a question of learning. The whole character of that notoriety profit. that there were congregated in an acre lot.
fearing a controversy in which they cannot convince. THE LITERATURE. one-half of the world of literature would disappear in the abyss of time. and." A practical thought.THE PRESS. as we have shown. but degrees and many and action. the Press. Much of paper. 43 it has many shades and is by no means confined to mere purely imaginative productions. If the price of paper were raised to ten cents a pound. is the extremely low price literature. 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 the improvement in the art of type- setting machinery. in view of the multiplicity of these productions. yet it is certain that without great poetry there can be no great poetry has undoubtedly been written in these days. It affects the Pulpit. fabulously low. THE STAGE. carry the tastes they form. it even invades the scientific. which enable newspapers and books to be published. at a price. and the standards they' impress. and. and much of it is good. while they toss the books aside. but it has ceased to be a thing which men take to their "business and bosoms. abroad with them by the word "sensational". modern litera- . The few who cherish models are so much at a discount that better ordinarily they shrink from obtruding them. and can only feel themselves degraded. The public yields to the fascination.
is THE AMERICAN LAWYER. are constantly saying: "Look at the Press —how low and degraded. social." "Behold the de- . and the owners of newspapers. so are the people. They are generally upon an even keel. — and Literature. They are usually reflective and not creative forces. There is very little see-sawing between the Press. the Pulpit. are their faithful representatives. Press. and Stage are likely to be healthy. if it is abnormal or diseased. with the habits and thoughts of the people. The barometers which reveal the moral. they are apt to be demoralized or sick. Stage. These organs They change As they are. are the great organs of which I have spoken. In these days they rarely lead and make public opinions. They feed the public with the food they relish and give them plenty for their money. The moral sense the conscience of a nation is exposed through public opinion. political. If public conscience is healthy. and — — intellectual condition of a people. would receive a deadly blow and shall I the people an untold blessing? And what — the responsibility of the publishers for this The classic publishers! who dote condition? upon the best models of English literature! The same remark applies to them as to the theatrical managers. they oftener follow it. Critics who assume to rise above the surface of things.— 44 ture say. and the People.
Returning to the law. intellectually and morally. It would seem quite if striking changes should not have crept into that profession. fashions. and habits. as the other organs of public opinion. are too clever only when the people require them to be so." simply inviting the people These great organs generally hold up a faithful mirror of prevailing culcritics are But such to look at themselves. One of the first changes. the Pulpit "Even not what it was demoralized. has passed from the hands of individual lawyers into lating to titles. More than thirty years ago. in the practice of the law." is is "The Bar. for a fee incomparably lower than that charged by a considerable body of the profession. who were "Conveyancers. ture. until the entire business re- known as and transfers of real estate. It was as quick." Later. other companies were formed. They give the people exactly what they demand. morals. unnatural. to search or investigate titles. Title companies were incor- . and facilitate the transfers of real estate. and unfaithful to their true missions. THE LITERATURE. these companies. They and skillful to be out of tune with public conscience and taste.THE PRESS. tastes." condition of the Stage. was created inside of the profession itself. 45 praved once. to adapt itself demands of new conditions. a few lawyers organto the ized a company. THE STAGE. They are low and coarse.
titles porated to examine the other companies to estates. with the change in their occupation. These corporations. to and trust all manage decedent and organized were collect kinds of mercantile accounts. agencies to real estate. and other combinations were formed to do general legal business. these "trusts. and law has colossal fees. or combinations. Nothing can betMost ter illustrate the change of the profession. or banking department. solicitors. formerly performed by have at length absorbed a very large share of the lawyer's former work.46 THE AMERICAN LAWYER. some of the law firms in a metropolitan city. and commercial operators. From "Attorneys and Counselors they became agents. and gradually driven him into other fields of employment. kinds of law business. at Law" and professional glamour of become a business. The "outdoor" or office business of the lawyer has become the most profitable. practical promoters. legal all by wholesale. The characteristics of the lawyers changed. They attached themselves to all kinds of corporations. one imagines that he is in a commercial countingroom. individual members of the Bar. Entering the offices of as officers and directors. as commissions." created to transact. and of the intellectual the Bar has flown. It is the boast of some legal firms that their mere office expenses run over fifty thousand dollars a year. are often paid to .
than a knowledge of jurisprudence. 47 them.THE PRESS. by the young lawyers. enter created fast enough for them to politics to advertise themselves. One lawyer received more than a million of dollars as a contingent reward. In many transactions the lawyers are half bankers and half lawyers. The people do not seem to comprehend the . Vehement protests are Political. A vast contingent business has been inaugurated. the inevitable effect of these employments. The fact constitutes. and business associations are often more cultivated. is to remove the lawyer far away from his technical and intellectual pursuits. It is known. social. upon the successful close of financial and business operations. THE LITERATURE. if not sanctioned. criticised and yet tolerated. Through the door of politics most American lawyers reach the Bench. and to cause him to forget. but in vain. by the voters. Of course. one of the most demoralizing influences of the age. from time to time made against it. talked of. perhaps. Thousands of lawyers seek livelihood life. or neglect. to change his habits. and a fee of one hundred thousand dollars is no longer regarded with astonishment. the true mission of his profession. THE STAGE. others because they cannot gain a livelihood in any other Some manner. and promcannot be inence in political and the offices fill. in which no litigation is involved.
is not strong enough. it shows that the comor less a chance. than he has to turn water into wine. It removes But all incentive to study and real ambition. by . Lawyers become schemers and office-seekers. and the race is nar- rowed down to those who are willing to proclaim most loudly. in character and learning. nor care for. without political influences. The people are the eventual sufferers. if they do they are In general the best equipped lawyer. or indifferent. The qualities of audacity and immodesty. their own merits. to correct an evil which destroys its own prestige and morale. They neither demand.48 THE AMERICAN LAWYER. evils supervene. bar is indescribable. and delays and other manifest which the people evenIts demoralizing influence upon the tually suffer. seriousness of the practice. supplant those of learning and fitness. beyond all of these things. It lowers the respect which lawyers should have for the judges. or a proper concepLaw then becomes more tion of their duties. The man with real accomplishments. the approbation of their brethren of the bar. the majority have not the necessary accomplishments. refuses to enter into a contest for the judgeship. If a lawyer can obtain judicial position. and spend their time in pulling the party ropes. for all of bined influence of the bar. has no more chance to become a judge. because while some good men are chosen.
receiverships. and path to professional glory by hard and laborious legal study and cultivation? If the lawyer can obtain clients by becoming a member of a social. What he should be. THE STAGE. why should he not become the inseparable companion of some friendly Judge? I am endeavoring to show what a lawyer is to-day. In the selection of judges. instead of tying himself to books. or political club. and the merits of judicial nominees are lost sight of under. trying. what he is the always existing actual. . more important D issues.THE PRESS. uncertain why — independently. I believe the evils could be largely reduced by holding separate elecThe question of the fittions for the Judiciary. and patronage by cultivating the Judges. Keeping them in open juxtaposition is the only real means to advancement and reform. or eleemosynary association. As it is now. is the never to be realized ideal. of a civic. 49 attaching himself to a political organization. and what he should be. ness and character of each candidate could then be. examined. why should he weary his brain and mental faculties with profound or steady intellectual occupation? If he can obtain references. the elections are general. THE LITERATURE. should he take the more rugged. We must study both. is as wide as the ocean. what are regarded as. The difference between what he is. or church.
the nature and duties of a legislator. AND THE CONDITIONS UNDER WHICH HE IS AUTHORIZED TO PRACTICE. To produce lawyers who can perso he grows. AND HIS OATH. they are made. judge of the quality of our lawyers. they should be taught to cultivate a moral sense. the nature and object of law. to use a commercial phrase. to know the course of studies they pursue before they are admitted to practice. the nature and duties of citizenship. the making of a These fundamental requisites to full lawyer are almost entirely all overlooked in of the courses of education offices. and how. it is necessary to know of what. law schools. without any 50 followed in law . form their duties.CHAPTER V. and academies or colleges. As the lawyer is trained. but above and beyond everything else. THE EDUCATION OF THE LAWYER. Lawyers are made up to be mere instruments for their clients. they should be taught the real mission of the lawyer which includes profes- To — sional ethics.
knows nothing of moral philosophy. or the mission a lawyer. Neither Paley. One cannot blame the of legal study is professors. Savigny. 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. it naturally appears an assemblage of arbitrary and unconnected rules. with comparative ease and rapidity. Burlamaqui. III 362. 1 "To the student who begins the study of English Law. Montesquieu.THE EDUCATION OF THE LAWYER. and with a map of a body of law distinctly impressed upon his mind. But if he approached it with a well-grounded knowledge. Domat. or organic whole. through the ordinary course of preliminary legal study. of the general principles of jurisprudence. But it is true. where remedies are dis- 2 Austin's Lectures. of ethics. cussed. 51 attention being paid to their duties to the State. as a system." 2 i ter See in this connection ChapX. he might obtain a clear conception of it. . Austin. Kant. in general. The fact is extraordinary. professional — — — — and rarely at all. The curriculum fication. nay. A candidate. pervades and influences all legal education. I mean based upon codithe sentiment of codification. incredible. without some previous knowledge of the rationale of law.
in his own vigorous and graphic language." Let one more quotation. In like manner. and which. usually attributed to legal study. and the inquiry how it has been done will become an easy one. Let him once thoroughly comprehend what is to be clone. Let him once clearly perceive how these questions have become necessary and how they are connected with each other. Phillips in his able and independent discussion of Jurisprudence says: 1 "I firmly believe that the intolerable aridity. must retain its importance while the human race survives. 26. 27. is entirely due to the infatuation with which the student usually persists in exploring the details of his science. . not of the law do.52 THE AMERICAN LAWYER. as it arises out of the conditions of human existence. embodying the authority of Prof. describe. the general perplexity and confusion of the young student of English law arising from the lack of clear scientific guidance: 1 Phillips' Jurisprudence. to itself. but of that great system of jural problems which forms the framework of all law. which may be pernicious and must be imperfect. Sheldon Amos. is make himself master. and he will have little difficulty in understanding and criticising the various solutions of which they are capable. Mr. before he comprehends What every jurist has first to its outlines.
more indestructible than anything he can find in Text Books of English Law. may in He draws near. I am Civil Law. and is not quite sure whether he where. and place of a science. and for want of time inadequately appreciated. or wanting to go. He knows not where he is going. "if the young English student approaches the Science of Jurisprudence with somewhat of a quivering heart and trembling gait. i before admission. going. he is often enough regaled with nothing more satisfactory than a story of incessant change." he says. anyfor something broader. or a systematic exhibition of what is universal and everlasting. the reckless verbiage of those who have studied just law enough to confuse the spontaneous workings of their conscience. is in search of." A candidate for the Bar must. Systematic View of the Science of Jurisprudence. . 53 "It cannot be surprising." and the "History of European Law " are given by a glad to say. that in the course of instruction of the Columbian University lectures upon the very competent person. that what he perchance be there. however. the dreary register of meaningless variety. deeper. " He hears of 'Jurisprudence' and he has a is He thirsts dim hope. Professor Munroe Smith. page 508.THE EDUCATION OF THE LAWYER. or in the successive modifications in the substance of law itself. and yet who affect just sensitiveness enough of conscience to interfere with their unflinching interpreta1 tion of a single law. the loose guesses of politicians and moralists. But it is subordi- "Elements of Law." "Modern nate and collateral.
an ability to show. of legal age. and possess certain moral and educational qualifications. and of the United States. X. the examination for admission to the Bar. The applicant is only required to have been an apprentice. by a certificate from third persons. is superficial.54 THE AMERICAN LAWYER. grammar. applicant must pass an examination before an examining board of lawyers. that the candidate A man is a fit person to be admitted to the Bar. A smattering of history. or. crams himself for a final "quiz" i See Post. It is Considering the to this unnecessary. at this time. Moral character means. The student attends a course of lectures. skims through a few legal works. the and Latin. for two or three years. in some States. Chap. The general educational qualifications are ordinary. and the American people. . and yet know nothing of the ethics and mission of the profession. to criticise in detail the curriculum. which are the sine qua non to admission everywhere. be a citizen of the State in which he applies to He must be practice. is subjected to desultory examinations. may have a good character. geography. as intimated. 1 Let it suffice that it is entirely inadequate to produce a lawyer. produce a certifi- cate from a law school or college. relation which lawyers bear Government. Besides these requisites.
without having been under the care or tutelage of an active prac- Modern methods of legal education are akin to the age. and wonder why they are life so feebly equipped. Lawyers are machine made. therefore. They are intelligent enough many of them savants and remarkably bright men. they look astonishment. They are theorists and They have no clinical experience. The aim of law schools and colleges is to manuHardly any of the facture the lawyers quickly. they . one can put a log of wood in a machine.THE EDUCATION OF THE LAWYER. and lawyers are manufactured en titioner. and he is a lawyer. and mission of the lawyer. and when they embark into actual professional work. like around in brought into professional new-born babes. 55 before the Examiners of the Court. withal. students. but each of them has a large class of students on his hands. When they first see the light of the pro- fessional world. By a patented process. moreover. and it comes out a box of matches. start Young lawyers. They know almost nothing of the real office. instructors or professors have any practical knowledge of the profession. and the sole aim is to carry it safely through the final examination. The preliminary education which they have received does not carry them beyond the point of their examination. out in their professional journey with a keen sense of their own incompetency. — — bloc. and generally.
Except he shall have been brought uppe therein Seaven Yeares at occupie "And the be it further enacted aforesaid. in any place. tailor. where a certificate. to set uppe use or exercise anye Crafte Misterye or Occupacon. 1 This was not always the law. and duties of the office. for obvious reasons. nowe used or occupied within the Realm of Englande or Wales. baker. being not a tice as coming. This at once gives the lawyer an official position. powers. The student must first obtain a license from the court. or broker. is XXIV. for anciently. Eliz. 5. other than such as doo now lawfully use or exercise any Arte Misterye or except he shall have been Appren- ys aforesaid. as evidenced first by rules of the court. any occupation were required to serve an persons practicing apprenticeship. hereafter referred to. orels having served as an Apprentice as ys .. is necessary). authoritie that maner and fourme aforesaid. as will be seen by all the Statute which I quote. or pursue any other legal occupation (except that of medicine. Chap. as follows: Stat. Sec.56 THE AMERICAN LAWYER. and on whatever 1 scale. which they have been licensed to hold. in after the first daye of Maie next not bee lawful Misterye Arte or Occupacon. 4 (1562-63). for it shall worchman at this daye any pson or psons. banker. While any person may set himself up as a car- penter. he desires. No duly certified applicant can practice the profession of law without such a license. the policy of the law. has at all times been to place limited restrictions upon admissions to the Bar. agent. by Manuell Oocupacon. little have —certainly no adequate —idea of the functions. based upon an oath. in his relation to the court and the community. and afterwards by statute. nor to set anye person or woorck in suche the least as Apprentice.
viz: the lawyer was regarded as the origin of this of the court. as styled (but for different purposes than those for which the distinction was first applied to him). and this term is rarely. In these days. stands out distinctly and separately distinguished from other trades and occupations. clear. the adviser. upon payne that willingly shall forfeit and lose for every for default fourtye Shillinges every monethe." it is generally in connection with some effort to punish him for a dereliction of duty. he is now and he became. He starts on his professional officer of career marked is as an official —an the court. used in its original and just sense. The courts accordingly mark out of the qualifications these officials —their own officers. "an officer of the friend." acting under the supervision and control of the latter. and justly — they rarely avail themselves. suitors.THE EDUCATION OF THE LAWYER. The profession of the lawyer. The court." offending or dooing the contrary . if ever. and the reason for it is as strong to-day as when the office was first created. therefore. Litigants 57 who might otherwise complain. the associate. or bee hired by the Yere. viz: to signify that he aforesaid. when a lawyer is styled "an officer of the court. and to advocate their own causes a privilege of which. shall or will become a Journeyman. are authorized to represent themselves. with marked good sense.
to furnish him with 30. can be readily imagined. and assist the court in the administration of justice. Addison is authority for a story that when Innocent the Eleventh desired the Marquis of Carpio. the public seems to be indifferent whether there hundred thousand lawyers. upon the manners. the effect of which. if not actually seeking. rights to which he is not entitled. Still. the lawyers are officers of the court. the ten- dency of the courts -everywhere is not to regard the lawyer as an arm of the court. in every community. in existence. Indeed. Still.000 head of swine. They may be said to always rest under the command of the court. but if his . bountifully The lawyers have increased to such proportion. is So far as any demonstrated policy are five. culture. This liberality has been appreciated. or five hundred. they that the profession is full to repletion. Undoubtedly they can always be called upon to assist and aid the court. so much as to hold him at arm's length —to treat him as one ready and willing to accept. the Marquis answered him that for his swine he could not spare them. an officer to advise. are not any more numerous than they were at one time in Naples. aid. that no restrictions are placed upon the number of lawyers who may practice the profession. and esprit de corps of the profession.58 is THE AMERICAN LAWYER. or five concerned. Another feature of the subject is.
still others. educational. I believe. furnished a delightful haven to many a lawyer. The fact that social or political influence. have ever been made. 429. or suppositions drawn. 59 Holiness had occasion for 30. . turn their professional labors and merchandise system. in a corporate position. or practical ability. the effect legal incompetents. otherwise unequipped. with more fortunate brethren." Vol. could secure him a snug been the berth. 2. through the influence of nepotism. The enormous increase in the number of corporations has been an into a regular business or partnerships. These corporations have. as to the i number of law- " Remarks on Italy. many of them eke out a meager and starving existence by filling clerk- and other subordinate positions. They both suffer. finding nothing to do. has frequently sole incentive to his adoption of the legal profession. with natural. 1 The Marquis must have of turning out hordes of had a large estate! Of course.THE EDUCATION OF THE LAWYEK. in a few years seek other employments. and various by associations other kinds of occupations. lacking the ability. he had them at his service.000 lawyers. unlimited blessing to a certain class of lawyers. to perform the work ships. No statistics. is as bad for the latter. as for society. their intrusted to them. Hundreds of lawyers. p. or knowledge.
the pride and vanity of parents and friends. or perhaps could. mistaken notions of the true nature of the profession. but it is generally agreed that vastly too many for such service. prentices were fully convinced that to become a lawyer meant serious study and application. and access made easy. all go to swell the ranks. As long as a course of study exists. when they have passed through to admission. My purpose at present is only to draw attention to the effect of all this on the lives community. in the supply very largely exceeds the demand. No limit should. another book . so that the gates are thrown wide open. to encounter the steep and stony paths that lead to genuine success. language of political economy. there would be fewer candidates. with a mere smattering of intellectual training. ever be placed upon the number of lawyers entitled to practice. of course. the profession will be filled to repletion.60 THE AMERICAN LAWYER. to the very class who are least qualified. Young ambition. which offers inducements there are now for individuals to become members of the Bar. yers necessarily required to transact the business of the country. There are other concurring causes. except by ordaining such rigid preliminary studies and qualifications as would act as a If candidates enrolling as legal apdeterrent. the that. As to its personal effect upon the and fortunes of the aspirants.
THE EDUCATION OF THE LAWYER. and the table compiled from the same source shows the following result in ensuing decades: Year . It is 61 enough to say that no miseries are greater than those which follow the mistaken choice of a profession. The census shows that in 1850 there were 23. might be written.939 practicing lawyers in the United States.
cannot be presumed to comprehend any of the principal branches of the law. that any lawyer who has simply passed through the formal system of study prescribed. as I shall show. But. as a rule. and to turn upon the community hordes of incompetent practitioners lowers the standard of the profession. because litigants do not. employ young lawyers. undertaking either separately. own In the present inflated and complicated conit goes by the mere saying. and who has been licensed to practice.62 THE AMERICAN LAWYER. if not of greater. he only acquires a smattering dition of the law. or in conjunca privilege very fretion with his law practice quently availed of. he frequently appears in courts outside of his State. the lawyer's duties to the government are of equal. who fight and struggle along many years before they attain the full confidence of clients. that nobody is injured by this ignorance. of the lawyer's operations is limited. It may be said on the other side. importance than those which he owes his clients. as therein. a if he be admitted matter of comity. but I think to the discredit — — of the profession. them. the Federal Courts. is The sphere and to or confined. At best. deprives of of some the Bar of the learning and respect which are so . to the State in which he admitted. although.
and nullifies the influence which naturally possesses in private and public affairs. This oath throws some light upon the lawyer's real functions and duties. and of England and France. but these. with such an initiative. is quickly ascertained and understood. 63 necessary to enable it to defend and exercise its proper position. in the individual may overcome all diffiit culties. Great talent and strong bias. but where the tendency of the whole system is to produce a class of in- competents. it is vain to say that the evil corrects itself. can be in equally shown to by the work accomplished previous examination. meeting with the same quality in those who are delegated to examine. applicants and examining boards standing on exactly the same level. with their results. A professional morale the student. towards the profession.THE EDUCATION OF THE LAWYEE. that the student's real education begins after admission. The forms which are given below practically illustrate those of all of the States. . in this respect they may be considered one and the same interest) are entitled to some better guarantee. The oath which the lawyer takes before entering upon his official career is slightly different in each of the States. The profession and the community alike (indeed. the results become obvious.
64 the american lawyer. . uprightly and according to law. that you will use no falsehood. do solemnly swear be) that I will (or affirm. as the case may demean myself. (or affirm. 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. I. Pennsylvania. and that I will support the Constitution of the United States. 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. York. United States Supreme Court. as well to the for lucre or malice. do swear that I will truly and honestly demean myself in the practice of a So- . and that I will faithof fully discharge the duties of the office of attorney and counselor-at-law. England. . You do swear Constitution of (or affirm) that you will support the Constitution of the United States and the this Commonwealth. New I. according to the best my ability. as an attorney and counselor of this Court. nor delay any person's cause learning and ability. Court as to the client .
THE EDUCATION OF THE LAWYER.
according to the best of help me God!
In France, the Advocate's oath of refuser les causes dont
the ancient laws of Scotland,
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
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
of Spain," cited in O'Brien's
I, p. 17.
Statutes of the Lords, 13th
the best of
THE AMERICAN LAWYER.
equally vague, because
well to the Court as to
the duties are not defined; that of Pennsylvania,
the Client; that
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
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.
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
THE EDUCATION OF THE LAWYER.
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
NATUEE OF LAWYER'S VOCATION.
but, as I have said, before, that
wish, summarily, to reprimand, degrade, or pun-
The lawyer must be an
him by the
would be necessary to proregular course of judicial
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
adviser and judicial adjunct.
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.
the most powerful magnate. the lawyer's vocation has been enfeebled. veriest tyro in admitted. 69 While. New York the lawyer issues the original man- His name. or by whatever name the original process may be In called. the he is the day after . He is the sole officer authorized to cause a civil action to be begun. if not totally destroyed. apart from this fact. as a supernumerary of the court. — — lawyer approves the client's demand. yet the defendant must obey. At the instance cial He he becomes the offiauthor and creator of all judicial proceedings. fact. The demand may be unfounded. the whole proceeding utterly without merit. is the beginning of legal proceedings. is the fountain head from whose source all of client. — commands the appearance in court of the highest or lowliest individual in the land. he can issue. the action unjustified. signed to a summons. writ. or the most influenIf the tial citizen or corporation. date. he is an officer of very great authority and power. 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. in law.NATURE OF LAWYER'S VOCATION. or in A lawyer. or cause to be issued. process which will bring into court the proudest millionaire. The lawyer's mandate the summons. a legal processes flow.
may in which character. or rests dormant until some one sets self-acting. yet the lawyer dismissed sits. is forsooth. His ordinary mistakes of law. the as unfounded. and although after years. ment of the lawyer. we find that it arises from the necessities of politi- cal organization. in his office. The law is not automatic. How many of such mistakes are made. the Courts computed by consulting the records of which show the number of suits — finally dismissed. demands of a professional it blackmailer. or judgof government. how many causeless actions are instituted. of litigation. without a right. easily. serenely. have caused untold mischief and damage. it its machinery . cannot be made the basis of a legal demand against him. tittle of justice or the profession may. all suits are begun or defended. or judgment.70 THE AMERICAN LAWYER. through his negligence or design. An individual who possesses powers like those which I have described. Inquiring into the origin of the lawyer's power. known to any system Upon the ipse dixit. secure from liability. can be. an "officer. suit is and expense are involved." and one whose authority is hardly exceeded by that of any other official. exempted from acts which often. summon the worthiest and purest indi- vidual to answer the be. property.
a law is a mere brutum fulmen. Now. or rules. the official and authorized agents. Blackstone puts it). as applied to political existence. of certain principles. . stract. enunciated by the supreme It says to its subjects power for (as of the State. regarded as an act aimed at the entire community. but until somebody complains. in motion. we begin to appreciate the full scope of the lawyer's powers. is 71 A good definition of Law. the same we term a Law the very. ab— "thatthe which in doth moderate the force and power. violated both by individuals and communities. it is When a crime committed.NATURE OF LAWYER'S VOCATION. —the criminal and the is civil." lawyers. and manifold civil rights are invaded where the party injured seeks no redress from the courts. and so . that which doth appoint the form and measure of working. "thou shalt or thou These rules may be." In the concrete. Murder goes unpunished if it is concealed. . that given by Hooker. a Law to his working. it con- being of God is sists of declarations. When we ascertain the reason and philosophy of the subject. and often are. The law is naturally separated into two great systems. are the shalt not do this or that thing. human government. theft escapes notice if no prosecutor appears. who put in motion the machinery of the law.
before a final judicial settlement of their rights is reached. start the wheels of justice which bring the offender to punishment. and district attorneys. of the State. by the service upon the delinquent. this — — . a judgment and execution. sheriffs. and all laration. coroners. the trial. the appeal. sworn officials. 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. a hearing and a decision. these orderly machinery of the law must exist. which litigants pass through. constables. the complaint. which are met with in ordinary legal and equitable actions. parts of a suit. Wherever justice is administered. a complaint and an answer. There always must be a complainant and a defendant. soon as its existence is known.72 THE AMERICAN LAWYER. A crime inflicts a blow upon the whole autonomy people. It strikes at the But when a civil injury is inflicted or property. viz: the summons which brings the parties before the court. the execution. the lawyers intervene upon person and set the machinery of the law in motion. such as policemen. the judgment. magistrates." does not only mean commencement of a suit. the issue. or dec- answer or plea. The "machinery of the law. the of the multiplicity of interlocutory and inter- vening orders and proceedings.
of Now. In a civilized community these forms nicely are and delicately adjusted to each other. and without them. Hence these orderly steps in a suit. declaring rules for human and directing their observance. are necessary and substantial parts of practical jurisprudence. exact justice between litigants. these forms are lowed. the law simply would be a bundle of abstract principles. though in a primitive and summary way. is reguThey study lated and watched by the lawyers. . so they operate harmoniously together. and although they are called the "forms" of the law. The orderly parts of a suit. they are absolutely essential to the correct determination of legal controversies. if the that machinery is properly and regularly run. after a fair would be nothing but a series insipid declarations. but without the necessary appendages for enforcing them. hearing. unless by a relapse to methods purely Without the ability to give an adearbitrary. every motion the wheels of form. the law of quate remedy to the parties injured.NATURE OF LAWYER'S VOCATION. all of the intricate they arrange the movements. 73 fol- Even in a barbaric state. and. and delicate mechanism. which run after they are set in motion. conduct. are coeval with the administration of justice. and they are designed and intended to produce as a whole. fast or slow. therefore.
is may be the work of Upon law the lawyer's advice and judgment. in a cloud of technical sparring and conflicts. however much own creation. workmen. The moral responsibility of the lawyer becomes. and the lawyers come to the front. until the real concontrol. The clients disappear. Directly the machinery is set in motion by the lawyer. with their motions and counter motions. the put in motion. He is a kind of judge preliminarily He is — inquiring into his client's rights and duties. the fencing. the his use the word "Subject" advisedly. and his office assumes an importance which superficial inquiry would not ascribe to it. . between the institution of a suit and a Judgment. and whole course of the law.74 like skillful THE AMERICAN LAWYER. is amazing. the suit becomes one of public concern. as it exactly describing the citizen. therefore. they learn to direct. whether his client has a just claim or defense. The foregoing suggestions introduce the lawyer in his first great official relation to the community standing between the Subject and the — I Law. very great. in his relation to Law. primarily charged to determine. troversy is lost sight of. when one remembers that Courts exist to render speedy and exact justice. no matter how small or great the amount. in advance. The legal which is had under a Code.
and the evil effects are felt all through the body of the law. involved. is the law and lawyers that suffer most.a NATURE OF LAWYER'S VOCATION. fulfill to the former. ally appears. he prostitutes and brings its administration into disrepute. with him to preserve the purity of the legal system. to the less latter it brings a shallow reputation for clever- ness. of dishonesty. in the settlement. suits. a sense of its in adequacy to its ordained purposes. from the wheat action. if from ignorance. The importance of the whole subject to the lay community is apparent from this purely material aspect of it. all the 75 A judge. or indifference. of fact and truth. or the evasion or denial of a legal claim. largely and sincerely blended with contempt. Client and counsel become involved in a common atmosphere of suspicion. and patriotism. or principle. It rests prudence. eventu- forms of the law are involved and the public are taxed for the general expenses of the courts. learning. it actions. or jury. In the commencement of need. He poisons the founand contempt tain of justice at its source. to separate the chaff of fraud. degree of moral reprobation attaches to their In the ordinary judgments of men. he defeats the objects of the law. the lawyer has of honesty. therefore. and a greater or its forms. to the effects of his he advises the commencement an un- just suit. exaggeration and doubt. Law is "humbug" — . For.
The lawyer's opportunities for good and for evil. insidiously and secretly. in all of their duties and functions. Sheltered in the garb of his The client. chicane. true objects. should be fully instructed. pleas. the pretenses of the the lawyer's are frequently own work. not of paramount importance that individuals who are clothed with such extensive powers. the lawyer can always. he is representing another's interest. and express statute. his training. are powerfully illustrated. And both public policy. of lawyer a cunning scamp.76 THE AMEEICAN LAWYER. in each and every step. all his knowledge of the scope and influence of his profession. except that he is better protected. client. are brought into play. the defenses. before they are permitted to Is it exercise them? Picture the baleful influence upon the law and . and the lawyer's tracks and identity are swaUowed up in the personality of the former. deflect the course of justice. mere game the office. prohibit him from uttering one word. not essentially different from other scamps. but they are made in the name of the His education. and is not responsible for his client's morals or frauds. and more to be feared. in a litigation. and defraud the law. It is hard to detect him. passed in professional counsel.
77 society. minds not elevated. In the first rank. without penalty or to the client damage. who pays most for the service. badly educated. A great upon the financial moral responsibility promoters of that Company. of lawyers. selling their knowledge. The formation of the Northern Securities Company under the laws of New Jersey. only to defeat and evade the legislative will and public policy. can be found many lawyers whose services are sought only to enable guilty men to escape punishment. experience. yes. only to show their clients how to cheat. trickery. clothed with so much power. and defame. resorting to to gain their end! Do such lawyers exist? Do such practices prevail? Unfortunately. prostituting the forms of justice for gain. and such talent as they may possess. in the lowest rank of the profession. by liberal of the scope and study or association! Picture the lawyers training themselves in a school of dishonesty. only to open a door for others to avoid the consequence of the civil law. with not ennobled. I do not undertake rests . diverting and stopping the machinery of the law.NATURE OF LAWYER'S VOCATION. in the middle rank. and chicanery. and every device of cunning and deceit. ignorant of the principles of law. vilify. is a good illustration of one phase of the subject. defraud. and objects of their profession. ability. and of their contracts.
S. embraced in that scheme.trust law of the United States stared them in the face in earnest protest against their acts. & Steel Co. Assn. ter.. was a clear attempt to evade the laws of the States through which the roads ran. v.. hoping. there were several clear decisions of the Supreme Court of the United States. Company was and sentiment of the country. Joint Traffic 211. S. 171 U. 175 U. under the shallow pretense that the Northern Securities a mere holding Company. Freight v. . not a dollar of actual business was to be transacted there. which showed them that their work was illegal. The Anti. Addyston to quote. U. Yet they perseoverthrown by the vered. primarily. TJ. blamable in this matfor they took their chances. A consolidation of the railroads. 290. S. S. and State and Federal 1 i U. to evade Statutes.78 to THE AMERICAN LAWYER. and organizing there. or the slothfulness.. S. 166 Pipe S. by going to the State of New Jersey. and against the general public policy. until their acts were Supreme Court of the United States. measure or partition it. or ignorance of public officials. The promoters were. U. not a penny's worth of property involved was located there. The promoters sought to thwart the laws those States. 505. and others not necessary Assn. through the ingenuity of their lawyers. moreover. v. Not an individual of really interested in the affair resided in New Jersey. neglect.
and each year new features to added to its corporation laws. 79 The decision of the four Judges in the lower court was unanimous against the Northern Securities Company. as would have enslaved the finances and commerce of the country. protect promoters. speculators. if the case had been thoroughly presented. policy. and although this judgment was only ratified in the Supreme Court of the United States by four votes against three thus giving some pretense. themselves. say far — Examine its charter for confirmation of this result.— NATURE OF LAWYER'S VOCATION. has been craftily de- signed and built up. on the part of the Government I do not — — it was inadequately presented by design from it but. through majority shareher corporation . to cheat the general public policy of the country. it meant the placing of such untold power. If the Northern Securities Company had been upheld as a legal corporation. corporations. The State coffers have been enriched by are it. vital aspects of the question. to the original scheme yet this dissension would have been avoided. not involved in a mere technical discussion. The statutes of New Jersey. in the hands of the promoters of the company. stand as a shameful monument. were overlooked. holders. or color. in favor of resist National and State Almost every law of that State. to the cunning of the lawyers in an effort to public policy. and New Jersey.
in the advice which he gives his client. where rich and influential men. law. has THE AMERICAN LAWYER. unjustly. it . by skill. The business of the former is carried on in his office. In the case of the counselor. in the court. Shrouded in unlimited discretion. of all kinds — of practices. he. is a perpetual asylum.80 law. away from the public gaze his machinations are in the dark. to which the lawyers can resort. to those cases where. he acts in the under the public gaze. and general sentiment of the community. experience. have sought refuge from the public policy of the law. no one need know. and judge-made. against unjust and illegal methods or results. it is the attorney. but himself. herself made Finally. overcomes the judgment and minds of the courts or juries. and accumulation of statute. open — persuasion. It lies in his power always to say. as distinguished from the counselor. and by exposing and protesting. art. for justification. Public opinion is always on the alert. and are insidious and secret." The confused and contradictory condition. however. "1 was mistaken in the law or practice. how wantonly he is violating his duty. an asylum. who can and does work the greater harm to the community. are accordingly limited. His opportunities for accomplishing evil. or sophistry.
where there are solicitors and barristers. that all abuses inhering in any body of men. they bury themselves within themselves. his own cases in court. or illegal claims. pass through the hands of an independent counselor. with which they may be practiced. and thus blindly invite a sometimes very rude form of resurrection. "Attorney and F . they are presented to the court. A litigant would be thus compelled to cross two The barriers before he could reach the court. many dishonest. It is to be remembered. who. The work of the attorney must. sits in judgment upon the facts and law before so to speak. attorney would no longer be allowed to or defend. Insensible or scornful of extraneous opinion.NATURE OF LAWYER'S VOCATION. necessarily. from the feeling of immunity from danger. grow and strengthen. prosecute. One of the profoundest and most powerful reasons for divorcing the two branches of the profession arises from the above considerations. and necessarily would become abortive by the refusal of an independent coun- selor to present Counselor" are although they still preserved in this country. The names them. He acts as a breakwater between the attorney and the court. as a corrective. and when the time comes. represent practically one office. 81 acts as a counterpoise to the meretricious influ- ences of the dishonest advocate.
at every step. directly under the influence the In both relations. in becoming generally understood. lawyer is both an attorney and counselor. whose excited passions. the lawyer draws to himself a multitude of other employments. wisdom. not strictly of a technical nature that is. as a higher capacity. free scope to his best is given endowments. therefore. in First. As it is counsel. in the best interest of parties. the mouthpiece of his client in court. as attorney in fact. the attorney's practice comprehends all the business of the lawthe precincts of the yer. —where of he acts judges. and. to be settled in court. As popularly understood. . have to be considered. his learning. the THE AMERICAN LAWYER. genius. By virtue of his official character as attorney and counselor. experience. in the negotiations attending the settlement of difficult questions. but. and eloquence. transacted outside of court. or contests. the word implies.82 Here. he acts in a more limited. as a purely advisory relation to his client. He is employed as agent. which do not grow — out of misunderstandings. He is also constantly called upon to exercise the best qualities of trained diplomacy. second.
and stages of business transactions. trustee. It constitutes the most sacred part of the lawyer's functions. He is family. are constantly drawn upon by in his clients. control.NATURE OF LAWYER'S VOCATION. ters. and is often consulted when the thoughts of the latter are in a chrysalis state. and he becomes an important factor in moulding his client's final judgment. not only by the moral etiquette of the profession. which the ramifications and necessities of business create. 46. experience. His knowledge. The confidence thus reposed is guarded. but by positive statutory rules. and there is all hardly an event of any magnitude in commercial affairs. 1 tensive field of employment. . and other private and the trusted adviser and friend delicate mat- of his client. judgment. who generally repose their lawyers in busi- the utmost faith and confidence. ness. and skill. 83 and in a thou- sand and one other fiduciary relations. removed from in his The lawyer appears everywhere. That it shall continue in its integrity i is an im- Ante. A large share of this part of the lawyer's has been gradually usurped by corporations. an exbusiness. as I have shown. administrator. in which his co-operation and counsel are not solicited. p. and. executor. cleverness. however.
interest of society. and it society. by vulgar and indiscriminate abuse of the character and functions of the lawyer as such. that it behooves should not assist breaking it down.84 portant in THE AMEEICAN LAWYER. for its own sake. .
— CHAPTER VII. From the commencement of the government. Easily. In the analysis. it becomes of parainterpreters of mount importance functions of to consider the duty and a legislator. which a lawyer holds to the community. useless and incoherent Statutes. most of is them engaged 85 and the Congress of the United States . is that of a legislator. outside of his technical occupation. of the lawyer's relation to the community. THE LAWYER'S POLITICAL EMPLOYMENT AS A LEGISLATOR. The forty-five State legislative mills (another has been since added to the list) are constantly grinding out Statutes. AND IN OTHER CAPACITIES. they were the chief authors of the Constitution of the United States. As I have said. the natural and necessary the guardians of it. They are it. THE DUTIES OF A LEGISLATOR. the most interesting relation. and of all the State Consti- tutions. the lawyers have absolutely dominated in the Federal and State Legislatures. therefore.
and criminal. is applicable to constitutional. enormous expense amounting to many. practically. the laws. many. the same occupation. —the legislators. commerother. He must understand the origin and purpose . in the second place. The related. that the responsibility for all of this unnecessary accumulation of Statutes rests somewhere. millions each year. it entails upon liti- gants and the Federal and State Governments. it is necessary that we should have legislators who understand their functions. are the duties of a legislator? What are the qualifications which he should necessarily possess? Primarily. This state of affairs produces two principal results: first. it must be charged to the individuals who make . it creates such uncertainty in the law as. then. as well as all of the branches of the law. and. Laws have accumu- with such rapidity. he should know the relation which a citizen bears to the State of which he is a — member. To remedy these anomalous conditions. that the jurisprudence of the United States is in a condition approaching inextricable confusion and doubt.— 86 in THE AMERICAN LAWYER. the lawyers. in this connection. mark cial. to make justice a thing of doubt and chance. The subject requires separate treatment. Primarily. What. I can only say.
So deeply has this view been rooted. was and own protection. relinquished his natural condition and liberty. he more or but voluntarily. in fact. to conceive a condition of natural unrestrained liberty. is the supposed origin of human government. wherever he is born. when a person is born into the world. one is remitted to an age of poetry and myths. and transfer his allegiance to another State. never did exist. in organized association with This. of society ical 87 of the principles which underlie politgovernments Federal State Municipal Looking back into a period before society was organized. he can never divest himself entirely of civic homfor. and happiness. consciously. in the effort of the mind. in the human mind and experience. without any choice or consent of his own He may afterwards expatriate himself. and. but he can never enjoy natural or absolute liberty age. it.. 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. that. or wherever he . practically. comfort. For. — THE DUTIES OF A LEGISLATOE. his fellow and sought refuge men. natural liberty has ceased to exist — perhaps. becomes a subject of some government. briefly. he eo instanti. at all.
This original social compact is very important. . But. The citizen says. "I will give up my natural liberty I will bind my- writers all. Apart from the impossibility of tracing the origin of Society. by which the former grants protection. as Burke says. is an between the sovereignty and the individual. In a word." Or. withal. may roam. notwithstanding this fact. because this forms the proper and only true basis of legislative operations. he is always amenable to some government. substantially." Hence. very simple. by Lieber: "The natural liberty of mankind so far restrained by human laws as is necessary for the good of society. The State rights are his advantages. every babe is born into the world with a political halter around its neck. and I will only restrain so much of your natural liberty. "In return for the abdication of your natural rights and freedom. we can appreciate that most admirable definition of civil or political liberty. in substance.88 THE AMERICAN LAWYER. agree that there implied contract self to become a part all of the State — — I will support the State in emergencies. I will protect you and your family and your property. and your fellow citizens. as is necessary to protect you. and. his says. the legislator must go back to the supposed origin of the social compact. and the latter gives allegiance." in reply.
THE DUTIES OF A. not partial) benesary for fit No or advantage. The fundamental idea is> to leave the citizen with as as is much natural liberty. that country The is best governed which is least governed. Here is the secret —the corner stone — of all legislation. except so to enjoy all of his natural as restraint is far necessary. protection. but. compatible with the interests and protecIn fine. unequivocal (not speculati-ve. or distinct. laws are to be passed except those necesthe subject's protection. tion of the other members of society. LEGISLATOR. not the people . the citizen liberty. to make as few laws as possible for. Hence a legislator must keep constantly before him the origin and purpose of the social compact. on the contrary. for the Government. It introduces confusion and uncertainty. and wherever these elements exist. He must ask himself. A multiplicity of laws does not produce good government. 89 as is "Only necessary so far restrained for by human law of the good is society!" Conse- quently. annuls and destroys its efficacy. for his own. individuals evade and escape from the operation of laws. Government exists for the people. "Is this proposed law necessary? Is it just? Is it for the true interests of . and his fellow men's. in all normal and sound conditions of society.
elles en ont avec leur origine. elles ont des rapports entre elles. a leurs manieres. chasseurs ou pasteurs." Vol. c'est dans toutes ces vues qu'il faut les considerer. these questions. elles doi- vent se rapporter au degre de liberte que la constitution peut souffrir. brulant. . By shall I take away. a leurs richesses. a study of each great leading industry and interest. it — is not always involves a knowledge of the existing institutions and laws. the people. Enfin. What learning what experience—what industry. Ill. and whether the constitutes new or proposed law remedy. L'Esprit Des Lois. p. 1. A. avec 1' object du legislates. a leur commerce. any : portion of the natural liberty of the subject?" As Montesquieu says "Elles doivent etre relative au physique du pays." To answer. au genre de vie des peuples. an easy task or decide. a sa situation.* 90 THE AMERICAN LAWYER. the mischief involved. 1799. a leurs inclinations. laboureurs. avec l'ordre des choses sur lesquelles elles sont establies. a la qualite du terrain. Livre I. ou tempore. a la religion des habitants. a leur nombre. 106. au climat glace. and its relation to the others and the whole. or the greater portion of them? passing it. Chap. Basle. 1799. a lawyer requires who would faithfully adequate an — i"De ed. a sa grandeur. unnecessarily. a leurs moeurs.
the utility. que sera-ce d'un grand legislateur. Nothing instructive and interesting in this conis more nection than the seventh chapter of the second book of Rousseau's "Du Contrat Social" "Du Legislateur" in which he exclaims: "Mais s'il est vrai qu'un grand prince est un homme rare." And if this dictum be thought too broad. the justness of the law. How many- which now confuse and perplex the lawyers. yet with every abatement that can be made. springs from the Bar. would have never existed if these fundamental. who under- stand and laws. fulfill 91 the duties of a legislator! And contrasted with this standard." p. the field of the lawyer's action is still enormous. how deficient the modern legislator is! How few there are of legislators in the Federal. good or bad." Having satisfied himself of the necessity. and judges.THE DUTIES OF A LEGISLATOR. or State Legislatures. but simple. 25. . would have been avoided. fulfill their real duties. the legislator must — 1 — — » " Sharswood's Legal Ethics. popular demand. 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. exigencies of society or situation. He would acknowledge that legislation. how many thousands of books and statutes which now encumber the shelves of the Law Libraries.
brevity. the facts. "DeL'Esprit Des Lois. 135. he must know the in the light of the social 1 described. humaine. que c'est un tres grand hasard si celles d'une nation peuvent convenir a une autre. must here be observed. then prepare Here he has need of the greatest skill. perfect clearness. This involves an accurate knowledge of these instruments. it. 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. ed. 1826. To sum up: legislator ness. to be covered by the legislation? Simplicity. compact above and of all the other considerations If an amendment to bearing upon the subject. . en general. precision. an existing law be proposed. with the Federal and State Constitutions. if a new law be proposed. Chap. Why is it that the most profound lawyers shrink from drawing statutes? Because there is no task so delicate and difficult. what words shall be selected to express accurately and the thought. experience. propres pp. that he must compare all proposed laws." Livre I. en tant qu'elle gouverne tous les peuple de la i " La " Elles doivent 6tre tellement raison terre.92 THE AMERICAN LAWYER. Another important feature of an American legislator is. the principle. est la humaine. 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. Ill. the its just- must determine its necessity." Montesquieu. and knowledge. Loi.
459. 1 1. 554." "An act to authorize the construc9. and a bond given pursuant to the act to release a vessel detained by virtue of an attachment issued there- of under. v. L. 4. of article 6. tion of a railway risania. old law. 1863. all ute books and piles up our law books mountain high. of the Constitution of 1846. 57. — Eockwell 2. 1862. language. Y. I cite. Bohmer Haffen. L.THE DUTIES OF A LEGISLATOR. L. 390. voluminous. 1 work of declaring Statutes unconstitutional. so far as it gives a lien for supplies furnished to. and he be able to put the proposed legislation into clear. alone. and is void. unnecessary. 1866. v. Chap. unmistakable. v. Y. Y. Poole 3. 1862. Kermit. in the State of in the New York. the mischief. Chap. and tracks in the towns of West Farms and Morin part. Chap. of animals found trespassing within a private inclosure. Nearing. L. The People ex rel. and unequivocal must. finally. is unconstitutional. since 1862. 35 N. a large number of cases which show how constantly the courts have been occupied.— Section 1. Unconstitutional so far as it authorizes the seizure and sale. 482. . 48 N.— The act of 1862 providing for the collection demands against vessels. 361. and unconstitutional legislation. of chapter 217 of laws of 1866. 302. which now fills our stat- The failure to observe these rules. below. Sec. 59 N. Bull. 217. Y. 93 and the remedy. is void. without judicial process. 161 N. 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. — Act unconstitutional v. is in conflict with section 18. or repairs made upon a vessel engaged in foreign commerce. Chap. is the cause of the unwise.
A law tional. People Allen. Middletown. and Chautauqua should assess upon their respective counties a moiety of such further sum. is violative of the constitutional provision (Art. — People ex rel. Y. L. Co. Chap. Palmer. 2. The provision of the act 10. 42 jST. to a like effect. Chas. has the effect to deprive him of his property without due process of law and is unconstituL. 1866. statute attempting to validate L.. Y. 84. 217. & O. 77. on the part of the owner of the property to be assessed. R. Sec. Chap. v. 10. Provided that the supervisors of the counties of Erie 6. L. appeal from the award of commissioners. 1869. H. L. — An act of the legislature appropriating moneys from common is the capital of the astronomical observatory. The Board of Supervisors of the County of Chautauqua. as the said commissioners should certify to be necessary for the completion of the bridge. of 1870 in relation to the city of Albany prescribing that. v. 1869. not exceeding $10. 183. 619. Y. L. 4.000. 9). Y. 4) providing that on 5. 9. Laws of imposing an assessment for a local improvement without notice to. 404. Sec. 7. Y. v. M. 57 N. 1868. for the pur- — . and a hearing. school fund. Sec. 43 N. Tit. Opening up further The provision of said act (See. is unconstitutional and void. sioners. of the Courts of all the States of the Union. 74 N. Lee. 473. etc. 1870. When one adds to this record. 1. Stuart v. 7. 7) declaring that the compensation for property taken for public use shall be ascertained by a jury or by commis- — In re Vil. the court may increase or diminish the compensation. —A — N. 1. Yan Horn. a void subscription to capital stock of railroad unconstitutional. 196. the list becomes appalling. Amended by Chap. Chap.94 THE AMERICAN LAWYER. 1868. and in the Federal Courts. 8. 1870. the aggregate adjudications. to the establishment of an in violation of the Constitution (article and void. Sec. 82 N\ Y. or an opportunity to be heard. R.
Chap. by L. 1870. 694. into the history of the enactment and repeal of unnecessary statutes. p. City of Watertown v. Board. Y. . L. Chap. 75. Chap. 513. V. one is tempted legis- to exclaim: "How much longer can this nation bear the staggering burden of such ignorant pose of ascertaining the compensation to be paid by said city to the owners of lands taken for streets. Chap. L. 95 investigation. void. as amended by L. so far as it relates to the confirmation of assessments. 1894. p. 1878. 56 N. 809. Town of 15. as Crime for People city contractor to amended by L. 1893. 622. etc. who shall be appointed commissioners. 291. the common council shall nominate twelve freeholders whose names. Jason Fairbanks. —Legislature has no power to impose debt Thompson. Menges 11. 34 N. 59. Chap. T. Y. Y. v. 374. void as infringing perS. 1871. Title 7. 1870. City of Albany. as amended from award of jury of dam- ages for street opening on giving bond for costs) invalid— as taking witbout process. 14. sonal rights and due process of law. L. Chap. People 12. 151 1ST. Sec. 291. etc. Chap. prescribing qualifications for a jury to assess damages for as such a jury is not that required by Constreet opening invalid — stitution. as the section itself. and proceedings taken thereunder void.. 1869. Chap. 694.— Amendment to L. Titlb7. on town without consent. p. v. 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. 365. 151 N. 942. v. 1871. Chap. L. People 13. 810. 71 N.— employ alien. was unconstitutional and 588. 714. L. on separate ballots. 1870. See Horton v. are to be placed in a box.— — THE DUTIES OF A LEGISLATOR. Board. from whence are to be drawn three. 75. v. 65 N. 2. is unconstitutional. T. 66 (right of appeal 694 (Village Act).. Warren.
a joint contractor shall not be discharged upon his death. and an order made by the Superior Court for the purpose of making such a transfer was void. L. 1874. 856. Otis. and thereupon giving the latter exclusive jurisdiction thereof. Randall 19. Sackett. 77 Y. Pboc. 452. Y. 90 IS". — Committal for contempt void. L. N. 1880. and so it impairs the obligation of after contracts. People ex rel. Sec. Chap. v. 1879. Providing that estate of 18. erty without process. and judicial conflict! " Justinian's task in reforming the Roman Law. 758. 48. 66 is unconstitutional and void. 20. 16. 4. Pboc. 545. — 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. as the effect thereof is to destroy the negotiable quality of the bonds. which by its terms discharges the city of Yonkers.. Y. does not affect contracts — made prior to ST.— The provision of the act of 1873 authorizing the taking of lands for the purpose of such an association. 204. Chap. Code Civ. is unconstitutional. one of the greatest undertakings of ancient history. In re Grout. upon delivery by it to said institution of duplicate bonds. L. 4. Chap.96 lation THE AMERICAN LAWYER. Sec. Code Civ. 711. Assn. 60 N. as depriving of lib- for refusal to answer controller's questions. 1876. 480. by proceeding in invitum. compared to the herculean labor which is devolved upon the lawyers of the twentieth century. Sec. S. In re D. its passage. Bennett. Y. Y. from liability upon certain negotiable bonds issued by it "to all persons purchasing the same Laws of 1880) for the relief of the due publication of the notice specified in the first section of this act " is unconstitutional. Manhattan Savings Institution. 1873.— The provision of the act of 1880 (Sec. 59. C. was a pastime. v. Alexander v. L. 93 N. L. 569. 17. .
22. 681. 107 N. Act prohibiting Turnpike Co. Co. 25. L. therefore. 42. the provision of the act of 1880 in reference to underground street railways. K. declaring that the determination of commissioners. 42. as amended in 1881 (Chap. Y. Turnpike Eoad Co.— The provision of the New York Consolidation Act which declares that no compensation shall be al- G . from charging toll for bicycles held unconstitutional as taking of property without due process of law. Tucker. W. for any cause.. — Rochester & C. Petrea. 346. 1882. As applicable to such a road. B. L. Y. the said act is. In re Eureka Basin. to acquire title to lands by proceedings in invitum. Assuming the said act not to have been reported by the commissioners appointed by law to revise the statutes. Pkoc. 1881. Joel. Dist. — Purporting to amend the provision of the Code of Civil Procedure (Sec. L. confirmed by the court. Laws of 1881). 26. 190. as to grand jurors. was unconstitutional and void. 1881. Code Civ. sold on execution. 532. & M. Y. 410. and so not within the exception (Art. Gilman v. 1880." is unconstitutional — and invalid. In re N. (Sec. 25) exempting from the operation of said provisions bills so reported. Co. L. Sec. 96 N. Y. Chap. S. access to the constitutional courts of the State for relief. unconstitutional and void. 3. Y. 677. ing to authorize the E. 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. K.— THE DUTIES OF A LEGISLATOR. to a party who has been illegally deprived of his property. 1041) in regard to the selection and drawing of jurors in the city and county of Albany. 1440). 92 N. relating to title to real property 24. 1882. Chap. — 21. The legislature has no power to deny. v. etc. People v. 128 N. Y. 92. Chap. L.. 58 N. Sec.— The provision of the act of 1881 purport23. 637. therefore. 128. Chap. " may be taken in lieu of the consent of said authorities. 582. Chap.
1885. 272. Parmenter v. from a period without limitation to a few months after the passage of the act. and so is unconstitutional. Laws of 1885). 183. 1884. In this respect. The act entitled " An act to improve the 29. 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. Sec. L. is — unconstitutional. in some aspects. 202. Sec. Chap. 377. Pboc. Y. Popflnger In order to sustain an indictment under 31. 1885. so far as it prohibits its In re Jacobs. Court of Common v. 38. 7. 98. in certain cases. 458. and may reduce the price of an v." etc. by prohibiting the manufacture of cigars and preparation of tobacco in any form in tenement houses. L. absolutely prohibits an important branch of industry. — A legislative enactment which 28. 98 N. solely for the it competes with another. ment as enables him to comprehend the wants and necessities of his fellow men. not injurious to the — reason that community. 154. 27. The State of N. the provision of the act of 1885 (Sec. Chap. by the Act tional. or cream — . a clerk as a referee is un- constitutional.. A statute cutting down the right to commence an action upon a cause of action then existing. 135 N. and not fraudulently conducted. article of food. and so is unconstitu(Sec. amended by chap. 90. 1884. is unconstitutional. prohibiting the manufacture or sale of any article " not produced from unadulterated milk. 102 N. it is. 30. Laws of 1885. 183. L. Pleas from appointing Yutte. Y. public health. does not give such reasonable time. 577. a higher term than even Suppose the Bar would seriously statesman. Foster v. 60. 136 N. Chap. Chap. People Marx. L.98 THE AMERICAN LAWYER.— Code Civ. 99 N. Y. Scott.. Chap. 1884. 672). Y. Y. Y. 4. L.
Y. Chap.— The provision of the act of 1887 confirming sales of land for the nonpayment of taxes theretofore made under the act of 1874. and for the winding up of its affairs by suit brought by the attorney general. People v. not necessary or essential to the article itself. 1887. Code of Civil Pbocedtjbe. Chap. from the same. 335a. Laws — The provision of the Penal Code of 1887) prohibiting the sale or disposal of . 688. Arensburg. 160 N. ployee not to join labor organizations. added by Chap. void. 257. are unconstitutional and void. L. 504. 271 and Chap. 123 N. 33. L. (Sec. T. Dunn. who did not sub- stantially fulfill these requirements." it must be made to appear that the article manufactured was. 34." which is " People v. void because constitutional. a void assessment. made under 474. authorizing sales of lands for unpaid taxes in the county of Westchester (Chap. Unconstitutionality of Mandatory Provision. L. 1886. L. amended in 1887. as deprivation of equal protection of laws. compelling em35. 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. by the use of ingredients. T. 111 N. Section 1421. 691. Levy v. Chap. O'Brien. 388. 185 N. Laws of 1874). Y. 36. 97 N. a misdemeanor.THE DUTIES OF A LEGISLATOR. 1887. throw its 99 whole influence to prevent the election of individuals to the Legislature. Chap. 610. 1. 1887. MacLean. Penal Code Sec. as so much of the provision is unconstitutional. 310. 627. Y. — People v. T. Marcus. 171a. Substitution of indemnitor in action against sheriff. made in imitation or semblance of butter. 322. and the appointment of a receiver therein. 32. in case of such a dissolution for the taking away from the company of its street franchises. 691. 103 N. so far as it seeks to validate a sale. is un- Cromwell v. the manufacture of an article simply "designed to take the place of butter " is not an offense. S.— The acts of 1886 providing.
as in v. 258. 56). Conde v. L. 59. 124 N. Chap. 57 N".my offer or attempt to do so upon any representation or inducement that anything else will be delivered as a gift. requiring assessment for street paving to be apportioned according to foot frontage. 109 N. Ap. Chap. The Provision op the Code of Civil Procedure 39. (Sec. Sec. Withany article of food. L. 3. amended by Chap.— Prohibiting work by convict for sale is invalid as to contracts made prior to Constitution. as to policy holder act. Charter of Schenectady. Bronk v. who became such power to Greel v. 40. People 37. is void as taking without process. . 43 N. sale has been paid into court or deposited People ex rel i>. 39. Sec. Equitable. 871. Constitution. Y. 400. "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. 294. S.100 THE AMERICAN LAWYER. 29. Y. Barckley. Gillson. Laws of 1889) authorizing the Special Term. T. premium or reward to the purchaser.— Providing that no one but Attorney General shall proceed against insurance company. 190. 389. Chap. movement? How are they to be But where would they find them? known? When found and known. is unconstitutional and void. Y. Chap. 164 N. an action for partition. 38. 1889. 1890. Y. 382. L. 1890. 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. 500.t.— Amended by L. how are they to be made available in a system like ours? These are the real questions. City. void. S. 400 (Insurance Law 1892. prize. 1582. 1893. Kyder. Sec. or .
159 Bush v. Co. Y. People 43.— THE DUTIES OP A LEGISLATOR. is void under Const. Chap. 41. Chap. Mass. — Misdemeanor to possess during certain seasons and inflicting penalty. S. S. 62 N. 212.— Prohibiting suits by foreign corporations without a certificate. U. and to be performed in the latter. S. 687. void. People 48. 50. it is nevertheless true. 996. v. Harden. etc. 141 N. — Conferring upon women the right to vote unconstitutional. 1015. 110. Y. 1892. Sec. do not always appear.. 1143. 14. 431. and that cider vinegar made by State farms shall not be deemed such. S. 1892. Buffalo. L. 2. Amend. fish v. 1892. 467. L. 56 N. Chap. 488.. L. for school commissioners is In re Gage. v. Windholz. 1892.— As to committal of female in- ebriates without judicial trial. People 44. into v. L. Chap. 543. L. in the recognized legislative assemblies. 42. L. 56 N. Chap. St. Chap. Sec. 112. Y. as taking without due process. — A statute making void a contract entered made the by a citizen of one State with a corporation of another. Y. that prototypes of the best class of legislators. 101 out an intentional impeachment of the form of democratic government. to drafted men by taxation. Board of Supervisors. 1893. Saviours San. — Unconstitutionality of act for payments N". 58 N. 47. 376. West. 664. unconstitutional as not providing . Hilton. 338. as taking without process. Fire Ins. 86 N. Y. v. Chap. 090. Mat. as denying equal protection of laws. 214. 1892. Chap. S. 45. L. 1893. — Authorizing construction of a cremator for destruction of garbage.. Y. void. 8. 15. Y. void as discriminating. Secs. void as to imported fish. Sec. insuring property within former State. 937. 1892. Hargreaves 46. L. defining adulterated vinegar. Agricultural Law. S. 112.
THE AMERICAN LAWYER.
There are epochs
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
Village, 45 N. T. S. 777.
— Authorized occupants
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.
—Permitting water corporations
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
compensation to owners for land taken in improving
Thompson, 44 N. T.
— Trial court will not
declare act unconsubject.
stitutional unless there can be
no reasonable doubt on the
Y. S. 519.
City of Ithaca
— Authorizing a pardoned convict
for damages, although
judgment against him unreversed,
being an exercise of judicial functions.
State, 51 N.
transportation in street railroads
for policemen, void, as
beyond police power.
Traction Co., 76
Chap. 559, Sec. 47. Authorizing a cemetery associaand to collect penalties for non-observance, unlaw-
THE DUTIES OF A LEGISLATOR.
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.
60 N. Y.
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.
Co., 68 N.
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.
Howland, 155 N. Y.
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.
Cheamer, 53 X. Y.
Protection of Oysters L. 1896, Chap. 383. 62. disturbing vessel. Unconstitutional.
Lish, 153 N. Y. 188.
give us a
THE AMERICAN LAWYER.
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
427. Unconstitutional restriction upon apInvalidation of entire act by inseparable consti-
Wirth, 150 N. Y/459.
— License fees are public moneys. Appropriation to — Chapter 446, unconstitutional.
Society, 165 N. T. 517.
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.
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.
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.
Kings County District Attorney, proL. 1896, Chap. 772. 69. viding that district attorneys of Kings County shall be elected every
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,
City as master plumbers unless
THE DUTIES OF A LEGISLATOR.
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.
goods, label act Interstate Commerce. People v. Hawkins, 157 N. Y. 1.
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
People, 76 N. Y. S. 396.
41o.,Secs. 180, 184.
—Requiring horseshoers to
be examined and to obtain a without due process.
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.
— Unconstitutionality of Act limiting sale
157 K. Y. 116.
tax upon remainders or reversions vesting prior to June unconstitutional. In re Fallon. 171 N. S. — Rochester 79. Chap. Y. 1899. 210). 52 App. 54 N. 1898. 48. 1847. 51 N. Y. is — unconstitutional. 1899. Balcom v. 920. Chap. People v. Chap. 1897. L. 32. Providing that municipal corporations L. Sec. Mosher. L. list. — — McCann 84. void. 567. 1899. In re Straus (Sup. 358. L.. 700. as takiug away liberty of free contract. as impairing obligation of a contract. 567. 415. 1899. Chap. etc. 192. Chap. The eye cannot be opened upon any department 78. S. 1ST. 162 N. 869. Chaps. 502. pay the expenses of a person who has been indicted within its boundaries for a criminal offense in connection with his official dushall ties. invalid. of the official world. — Statute requiring appointment of person — Chap. Repealing all prior statutes as to secur83. L. Y. 58 N. 1885. S. Y.— That laborers on public works be paid prevailing rate of wages. v. . Y. 346. 1. Coler. 59 3ST. 735.106 THE AMERICAN LAWYER. 61 Y. City. L. void. Y. unconstitutional. S. 166 N. Joel. An amendatory act passed in 1898 to the Turnpike Act (L. Turning from we find that the lawyers occupy almost the entire horizon. legislative to other fields. 76. v. Y. v.). 37. providing for committal of witness before commissioner of foreign court. 849. 13. Tax. L. Chap. Laws op 1899. 1899. People 81. 1899. S. L. ing prevailing rate of wages to municipal employees void as to claim of workman employed prior to repealing statute.—Imposing transfer 30.— Code. as against due process. rel. by which a company's earnings are reduced 25%. Matter of Pell. 370. highest on People ex 82. 80. Leubischer.
1900. 70 N. v. 899. void as to sales prior to its passage. Chap. T. Chap. Y. Div. 1212. Livingston sell v. 485. v. Contra. People 87. They. Amending Chabteb N.. Y. Sec. Jacob. 476. T. L. v. L. 77 N. Chap. —Amending viding that in cities of the first Cody v. Judgment for alimony constitutes property of wife L. Y. prohibiting sale of butter or cheese containing a preservative. in default. Y. 1901. 1900. void. Caminez. 377. 27. 85. 1900. as not proper exercise of police power. . Chap. Livingston. 89. without encountering them. State. 1897. 510.— Providing for sale by auction by vendor. T. guilty of misdemeanor. 15. —Agricultural Law. L. 83 N. Niagara. 78 N. T. 86. Greene 88. 418. naturally. — Providing that a county should pay a bank its defaulting treasurer's overdraft. unconstituof — — tional. Sec. as taking without process. 107 of the Federal. or Municipal governments. T. engross all of the judicial offices. and they swarm everywhere. as L. 68 N. 1067. Grossman App. 466. 128. 79 911. — Prohibiting amended by New York v. Sup. Chap. T. 614. 90. 81 N. Good- Ooodsell. L. Whiteley v. 166 N. although a judgment had been given in favor of county in action by bank. 534. S. recovery of moneys paid by vendee. 173 N. as amended by L. S. proand second class persons offering real property for sale without written authority from vendor or vendee. Dempsey. void. which she cannot be deprived without due process of law Ohap. void. S. v. S. Terry. 1900. etc. as depriving county of a vested right. 1900. 762. 742 in so far as it affects prior judgments for. and.— THE DUTIES OF A LEGISLATOR. boiling of garbage. Penal Code Sec. S. 1900. Department. in the legislative and executive branches of the government. 640d. Biesecker. void. L. as taking without process. 806. Haefelein v. 94 N.
618. L. Seo. as taking without — v. amended by L. S. 224. 1901. 1897. 98 N. 97. 378. 112. process. Y. as amended by L. 22. S. 90 N. Sec. 1899. as impairing a vested right. Chap.108 THE AMERICAN LAWYER. as taking without due process. as 1.— Providing that Act April 25. criminal procedure in Pennsylvania. Chap. 1901. 1894. 1). Y. 77 N. S. JF. 1902.— Citizen of N. 640. and the motives for Individuals imbibe alterations of old. Y. Chap. 469. S. L. Chap. S. but for no part of 1901. void. void. Y. compelled to attend. they hear from him the reasons for new. sec. Y. void so far as retroactive. In re Commonwealth. Pboc. laws. void. 94. 1367. 92 ST. 808. 1896. banks Chap. 96. 76 N. L. In re Cook. 1901. City. Art. 94. S. L. from the lawyer notions of the principles of government. T. 241. as depriving of liberty without process. Code Civ. In re Cullman. Caldwell.— 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. p. 100. — Forbidding v. as taking away right of action altogether. void. 83 93. S. 503. 639. void. 1560. Chap. as amended by L. of Woodbury. 671. 145. 451. Act Jan. 410. 168 N. Young v. from engaging People in ticket Preventing any than common carriers brokerage business. 95. City. Chap. 1901.— For canceling of license certificate unless holder files an answer denying violation. 1901. . Y. they readily accept his 91. 1902. against abridgment of citizens' privileges (Const. MacMullen v.— Relief as to lost certificates of deposit. People 92. 1902. city pensioners to bold city Chap. employment. Y. void. 567. L. Y. on subpoena. 81 N. giving salary to Alderman. L.
141. 102. special execution against income or its Proc. Y. 461. 137. Tiffany. and that he shall not be made defendant in action unless he claims interest. rel. . 1903. Sec. " 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. Y. King Irving. acter.. as to offenses committed prior to its passage. v. 88 N. 1903. as taking without process.— As amended profits of judgment passage. Civ. L. 272. Chap.'' p. 97 N. 178 N. — 99. Prohibiting possession in close season of trout taken outside the State. Green. 591. 1 when not of a purely partisan char- In times of excitement. 1902. Sec. Vol. 1902.THE DUTIES OF A LEGISLATOR. 134. amended by L. S. 1897. 539. 86 N. Sec. Warehouseman may refuse to deliver goods to holder of receipt when another claims them. 92 N. as taking without process.— Amending Penal Code. Chap. debtor. 1391. as to trusts created before Sloane 1094. void. 101. 16. void. T. Chap. 194. Y. L. and as beyond police power. Chap. void. S. Chap. L. S. Y. S. by L. 90 N. 149. when public resent98. People ex 103.— Commutation for good behavior only allowed to convict committed on definite sentence. void. Y. Chap. 348. S. Johnson. Providing that buildings within 500 feet of hydrant may be assessed although water not used. the people fit of incalculable bene- De Tocqueville. Subd. void. Chap. in preserving order. 109 technical explanations of the causes and effects of legislation. prohibiting use of United States and State Flags for advertisement. 230. 1903. Van De Code Carr. 93 N. S. 425. 414. Village of Canaseraga v. 1902. 608. Y. unconstitutional in part. 1 v. — Booth Co. L. L. 640. 272. 227. — People v. I. L. McPike v. People u. as infringing liberty and property rights. 1903. 100. property.
Municipal ordinance allowing projections beyond building line.. Y. Chap. — Lord 109. requiring courts in certain districts to arbi- trarily regulate preference of causes. void. 92 N. S. as depriving judiciary of right to regulate the hearing by the circumstances of each case. Chap. (May 26. 1904. changing method of electing directorate. Equitable. void. besides. He becomes a breakwater between the passions of excited citizens. S. 463. 107. Y.— Authorizing taking without process. Zimmerman. 1904. 173. his devotion to existing rules and forms. 173. void. to print There are some thirty-five additional acts declared unconstitutional in the State of New me them. . 106. Sec. His trained habits of thought.110 THE AMERICAN LAWYER. Y. 772 . or passion is ment aroused. S.. 697. pause here. 655. 657. the list is York. as taking without process. 90 N. Lewisohn v. 96 N. T. 1905. S. — McMillan v. People I v. organizing the Equitable Life Assurance Co. 95 N. v. L. Y. Chap.) special deputy commissioner to revoke liquor tax license issued prior to passage. About 1904. 365. his respect for the law. Flynn. 176 N. 65. 1905. Privilege of witness provided for by Section 342 of the Penal Code not coextensive with that afforded by constitutional provision. 531. amended by L. 1904. Klaw. and the forms and rules of the law. — People ex 105. as taking without process. v. 94 N. void. Y. void. Proc. Code Civ. 497. all combine to make him a power of great impor104. Star Co.— As L. rel. — Regulating trading stamps. S. as L. 181 N. aff'd. Riglanders. 253. 1904. 108. People L. Chap. the lawyer's influence ought to be great. Chap. L. 793. O'Brien. Y. Proposed amendment of charter of a corporation. 1853. as outside police power. Space will not permit already nauseatingly long.
p. community. they religion. and They have the same training. Judge Sharswood * says "It is its office (the Bar) to diffuse sound principles among the people. upon the most important changes in the Constitution.: THE DUTIES OP A LEGISLATOR. is always in proportion to the respect with which they are held by the of the law. As a voluntary instructor. in the which may The characteristics of the lawyers are identical everywhere. . mingling The influence. in his social sphere." all. as they are often caUed upon to do. intelligent. to be ultimate sovereign. As the sumed maxim still prevails that every man is to know the law. pre- law- yer. and above formation of that public opinion be said in these times almost without a figure. in the choice of their representatives in the legislature. they instinctively act together in defense fundamental principles of liberty. 54. and of judgment in deciding. of and trained oracles body of calm. in Ill these dangerous emergencies. that they may intelligently exercise the controlling power placed in their hands. becomes one this of great impor- without reserve among all classes. 1 Legal Ethics. justice. the occupation of a it. of Without premeditated or concerted action. his advice and judgment are received without suspicion or reserve. as a free and voluntary promulgator of tance. tance.
shifts — champions of makeYet they rarely in a truly political sense. so far as the gov* De Tocqueville asserts ernment of the United States is concerned. and the general similarity of their habits of thought instinctively institutions. of whatsoever form they may be. But in England. in the broadest sense. is like Sir but in that different. converts them into fixed principles. based upon the fundamental maxims of social and political right. to de- are taught to observe form termine questions by certain fixed principles. in all "free" governments. which is certainly "free. and order.112 THE AMERICAN LAWYER. as opposed to temporary and frothy declamation. ." p. I cannot recall an instance. This is undoubtedly true. Perhaps Brougham comes nearest to it. Mansfield was noted in his time. he was not a "pure" lawyer. act as an organized body never. that. The " Democracy America. but then. or even very great in Parliamentary debate. 1 special mission. of which he was writing. where a pure lawyer has been a great leader in the House of Commons. the members of the legal profession will be found at the head of all political parties. 350. Some have been great there when charged with a Samuel Romilly. to respect and preserve prec- edents and existing to guard sacredly the rights of persons and property." no such exclusive privilege exists.
as the sine qua non. and American politicians must study it. and training of the lawyers fit and adapt them for political life. has been of the subtle kind advocates and chamyers in England. by that instrument. H . In the United States. the instincts. brings into public tech- a large body of lawyers nical. and ideas. The Constitution of the United States becomes the guide for most of our internal politics. and from the beginning of the government they have almost exclusively occupied the leadership of political parties. on the other hand. it seems that their political inspirations. The interpretation of a written Constitution. Except in rare cases. education. when best administered. are limited and circumEven the tariff scribed. the substantial ex- clusion of the lay element of the community. to political education and advancement.THE DUTIES OF A LEGISLATOE. constructionists —to —professional. furnishes a most striking picture of the difference between the two governments. in the aspect in which I am here considering them. means the highest state of civilization. 113 truth seems to be that the influence of the law- when not strictly official. from which most of our political history takes its life A origin. — pions of justice. which. ex necessitate rei. comparison between the English and American Statesmen and orators.
been challenged. Chatham. and efforts of eloquence. therefore. whereas in England. Canning. and in life he has been a factor of the greatest importance. when Sir John Eliot delivered his speech in the House of Commons. as early as 1628. down to the present time. in the administration of all branches of the governments. lawyer's influence public and private .114 THE AMERICAN LAWYER. the sphere of the has been unlimited. Chesterfield. on the petition of rights. Burke. the great speeches have been almost universally made by trained statesmen. and the orations of Walpole. most of the greatest political acts. Sheridan. legislation has Constitution. however. Fox. wisdom and In both countries. Pitt. and political students. and Gladstone and others are carefully studied. as contrary to the In the United States. have been inaugurated and inspired by pure and technical constitutional lawyers. as models of British eloquence.
" Logically. because when a "duty" exists. At the same time. it is necessary that all of the obligations should be defined and understood. liabilities. it gen- 115 . for a faithless. it is their "duties. briefly. political and which prepares me to advance a step further in the inquiry. or of a class. the "duties" of an infirst dividual. I have heretofore. the nature of and his professional. or negligent technical liabilities of a lawyer to his client. THE OBLIGATIONS OF A LAWYER.CHAPTER VIII. ascertained. social relations. I use the word "obligations" in a general and somewhat arbitrary sense. by considering the "obligations" of lawyers before discharge of his duty. the limi- upon his right to practice. ascertain the nature of his obligations. in damages. sketched the system is under which the lawyer tations educated. I also reverse the natural and logical order of the subject. and to endeavor to his vocation. perhaps. As this is not an essay upon the ignorant. should be. and duties. unnecessary to dilate at any length upon this aspect of the subject.
" and the violation of an "obligation" involves or I creates a "liability. These being ascertained and disposed of. nevertheless.116 erally carries THE AMERICAN LAWYER. or perhaps never can be. There are three classes of these obligations: those arising out of acts of professional misconduct. deof the Courts have. defined the relations of the lawyers to their clients. acting without the aid of juries. expressly or impliedly. which never have been. those acts for which he cannot be proceeded against criminally. cisions. constitute the most important attribute of the law- am yer's office. enforced in civil or criminal tribunals. or liabilities. or orders "obligations" in which the statutes. with it a corresponding "obligation. for which he may be disciplined by the courts. By clude those "obligations" of a lawyer. and punished . all I mean to inall those of an enforceable character. judged their violation to create criminal. I then in a position to deal with the "duties" of a lawyer to the community. and have adcivil. largely in foro conscientice. for which he is liable to criminal punishment. as they do. They are his technical legal "obligations" to his client. but which. second. existing." The obligations which am now to speak of are well understood by the lawyers. but first. and the courts.
for deceit or misconduct. and. The which fixed first class of obligations. etc. bond. but only in damages to his clients. and for the purpose of bringing an action thereon. 2 Code. and to the revocation of his license. a lawyer in may be criminally punished. Or. 117 or the cancellation or sus- pension of his license to practice. That is to say. 1 guilty So an attorney buying a a misdemeanor. Some of these acts fall under all three heads. with the intent. by imprisonment. or thing in action. New York. he be may yet. in the State of an attorney or counselor who is guilty of any deceit or collusion.. Sec. and he may damages to his offended client for his acts in one transaction. Or. For instance. others under two. he may not be liable to criminal punishment. the court or a treble of -party. . liable have his license revoked. there may be no damages accrue from his acts. In these two enactments. third. his license may be revoked. in addition to forfeiting is damages to the party deceived. the neglect of are generally entails a criminal liability. or consents to any deceit or collusion. with intent to deceive by statute. those for which he fine. and still others under one. is 2 guilty of a misdemeanor. 70. Sec. 73.THE OBLIGATIONS OF A LAWYER. may be held liable to the party injured in pecuniary damages. the policy of the law i Code.
fine. however. and plainly revealed by acts. A lawyer who deliberately sits down to concoct or commit a fraud. and the lawyers. deceit or collusion. in the boundless region of professional discretion. with intent is to deceive the Court. They are spread upon the Penal and Civil Codes. so effectually. in . for the violation of which he may be disciplined by the courts. unnecessary to cite know them. Such acts comprehend. and punished by imprisonment. sions of attorneys. The second class of the lawyer's obligations. or the cancellation or suspension of his license to practice. or a party. These are difficult offenses to prove. or license. yet to the credit of the Bar. and collusion always is very subtly arranged. any more statutes of a penal nature. and against the practice buying claims. of any kind. it is diffi- But the is first of the Statutes to which It is I have alluded a very important law. with the purpose bringing suits thereon. Deceit lurks in the heart. an inactive one.118 is THE AMERICAN LAWYER. deserves more than a passing notice. duty. a question of depending upon the peculiar circumstances of each case. can hide his tracks. young and old. against deceits or colluof of plainly pronounced. What constitutes fact. that the law can be applied. that cult to detect them. and it is only when the fraudulent intent is brought to the surface.
119 general. must observe the strictest rules of honor. The Bar seems to comprehend these offenses by a species of intuition. but they exist almost wholly in judicial discretion in the conscience — of the courts. are held. that many acts which would not subject any other class. that lawyers in their dealings with their clients. above and not below the average. or in fraud or deceit of. a principle of universal jurisprudence. or of in any contumelious conduct contempt of the latter. fidelity. disobedience or These obligations are not generally defined by statutes. and obedience. have been held It is sufficient to justify the infliction of severe penalties. or be- tween themselves. their in the case of lawyers. or rules of court. in violation of his duty towards. and with the court. his client.THE OBLIGATIONS OF A LAWYER. of fiduciary agents. of the lawyers. with their presumed attaintime. to a standard of morals. a proof that They their morale at some was fixed at a level and in some way. . for they embrace all acts of bad faith. and moral misconduct. and corresponding to their opportunities. or omits to do. to summary punishment. in their dealings with their clients. respect. or of the court. therefore. It is important to note. ments. in dealings with their clients. everything which a lawyer does.
fine. this always lost sight of. one has ever successfully attempted. summarily. he is under a positive . to question the plenary power of the courts. that when a lawyer's conduct comes to be questioned. This extraordinary power of the courts. power over these legal agents.120 THE AMERICAN LAWYER. deceitful. disingenuous. Although the original ground upon which it is placed. is put by judges on the ground that lawyers are officers of the court. when a member of the profession incurs censure. the power law. However. to punish or discipline the lawyers. summary. is Popularly. to punish lawyers. and will soon disappear from sight. they must exercise a plenary. The is spectacle of a lawyer acting amicus curice now altogether novel. now exists more in theory than in practice. clinging to the old theory. or contemptuous. for any act which they adjudge fraudulent. by imprisonment. and that to inspire and maintain a respect for the law. the discipline is so severe. and almost arbitrary. or to deprive No them of their licenses to practice and conviction by jury. that he is an officer. the courts. without a trial to discipline is unquestionable. as I have more than once intimated. when his professional conduct becomes the subject of judicial review. Indeed. judge him without mercy or stint.
It is not the exception. is not large. Fidelity is the saving salt of human nature. But the number this of cases second class of obligations.THE OBLIGATIONS OF A LAWYER. There are no sacrifices which he will not make. for the lawyer to surrender his whole mental. and no dangers that he will not incur. 121 disadvantage. for the fidelity of a lawyer and his interests. is fidelity to the client. p. to advance the success of his employment. (especially one of any character or prominence) arraigned in court. to witness the spectacle of a lawyer. and ad- vantages are incalculable. Subject to the hereafter. The one saving attribute for the lawyer. and to his client ennobles whatever limitations it touches. It speaks volumes. 124. which I recur 1 to when its discussing his "duties. and it is not a common sight. but the rule. when compared with breaches of trust by other fiduciary agents. and through him of society. . which arise under it must be said to the honor and credit of the profession everywhere. i Post. intellec- and physical power to his client's cause." no risk is incurred to the lawyer's morale by its exercise. tual. from the sensitiveness which the judges display to maintain a high standard of professional conduct. at the instance of a client.
prudence. and the clients are silent. and when such cases arise. and care. they are generally accusations of withholding moneys. at the instance of his client. which throws of a lawyer to the State. The third class of the lawyer's obligations. can be found. the violation of an obligation creates a liability. of importance in this discussion. The lawyer is bound to exercise honesty. not often publicly complain of the overzealousness of their servants. in pecuniary damages. they do not arraign them for extra fidelity to their interests. or disputes as to strict compensation. in the history of these infrequent controversies. even when the lawyers overstep all decent. The illustrations of this general principle are . for the violation of which he can be little made liable to is the party injured. in rules all of which instances. in light upon the duties Men do their efforts for success. skill. and his failure to do so subjects him to the ordinary action for damages. in the management of all business committed to his hands. and the lawyer is under a common-law duty in respect to his employment. and legal limits. the same as other agents and trustees. Hence the lawyer is not often cited to answer the complaints or grievances of his client. moral. therefore. Little. the above referred to are enforced.122 THE AMERICAN LAWYER. As I have said.
to cases. and they have been sufficiently numerous. which I shall proceed to discuss. now so undefined. some of the difficult and delicate questions involved in the subject. in many justify the publication of treatises.THE OBLIGATIONS OF A LAWYER. and misunderstood. . to be found in 123 which their common-law duties have been defined by the courts. devoted esof the pecially to that subject. is above three classes a necessary prologue to the im- portant theme. in the hope that I shall at least open to the profession. obscure. The consideration of obligations. of the lawyer's real relations and duties to the State.
Between these lines lay the whole power 124 . to perform and exercise the functions of his office. The general duty of a lawyer is. in accordance with its nature. of a constable. To we must know and I the character of their functions to encounter the of their powers. in those matters where to act for his client is a conscious wrong to the com- come now — munity. between the duty of the lawyer to his client and the State. THE "DUTIES" OF A LAWYER. one office. the obliga- tion to perform or exercise the functions of accordance with the nature thereof. execuascertain their several duties. or agent. and another between his conscience and his client. To of ascertain this duty. policeman. to draw a line. or to the rights of those to whom he is opposed. which I am now an considering the subject office in generally.— CHAPTER IX. most difficult. and delicate part of my task. tor. true nature of the We must understand the speak of the duty a sheriff. A "duty" in the sense in is.
It lies with him to suggest and to direct. so that they can realize how It near. or tendency. but his conscience. and that these acts have frequently called for very stringent measures against them. While no one can hope. must be remembered that the profession of the law is necessarily one where an almost boundless discretion is vested in its members. on the part of the lawyers. reputation. they are from ideal conditions. will live up to the exact and best models of duty. In its general exercise. and gives us the text. 125 and influence of the lawyer for good or for evil. in the extensive pronunciamento which he issued. the ordinary conditions of society. extensive search into the subject. I have found that there has always been a recognized temptation. to overleap the bounds of conscience. that the lawyers. in 1237. the lawyer has the supreme power of direction. There is no In a very arbiter over him. always opening to the Bar enormous returns in money.THE "DUTIES OF A LAWYER. or far. in the commencement and conduct of litigated or other legal matters. and influence. it is well to have the lines constantly before the profession. Living up to the most exact standards of professional conduct and ethics. as Matthew Paris informs us. the affairs of business and commerce. as a class. still remain. the Papal Legate in the Great Council held at London in that year. and which was . For example.
suborn witnesses. and candor or honesty in his statements and . Let all advocates beware that they do not themselves. both as a citizen and as a sworn officer of justice. that in cases in which he may plead. he owes respect and dignity in his deportment. and if they are convicted for so doing. offi- as an officer and citizen. . . to the courts. all other matters notwithstanding. ' The duty cer of a lawyer is threefold : —to the State. or to suppress the truth. . and to his client. . . in the following language: "We have heard the cry of Justice. or to deprive the other party of it. as a fiduciary. ipso facto. complaining that it is greatly impeded by the quibbles and cunning of advocates.' 126 THE AMERICAN LAWYER. or by means of others. decree. but to defend his client both according to law and reason. those who do so shall be. suspended from office and benefice until they have made proper atonement for the same. or instruct the parties to give false evidence. they shall be duly punished. included a separate decree against lawyers. he will plead faithfully not to delay Justice. intended to cover all of the evils of the age. rising to the assistance of Justice. We . as an and adviser. with the approbation of the council. that whoever wishes to obtain the office of advocate shall make oath to the diocesan in whose jurisdiction he lives. He owes loyalty to the State. to the court. therefore. do.
to his client he owes his talents. in which the Government the to position of the State in its whole corporate capacity is clear (not a mere question of law. it is impossible to separate this threefold like the Trinity. any more than he can be dishonest to the State and court. It is one complete. his primary duty is to the State. The lawyer cannot perform his duty to one of It these parties. which State itself). plicable to both. and neglect the third. ap- ceedings. is a part of the judicial system of the Government. He cannot be honest to the State. he Why? Because he strikes a blow at society. performing this duty. He is appointed to conduct judicial proIf a conflict arise between his duty and his Client.THE "DUTIES" OF A LAWYER. In every employment which the lawyer reIn ceives. and dishonest to the court and his client. congruous. and neglect the other two. he can fulfill all of his obligations to clients and courts with fidelity and honor. his time. is in fact the interest of the he must decide in favor of the former. and honest to his client. whole. any more than he can serve two. 127 dealings with them. cannot be divided into parts. If he attempts to go beyond this. But duty. his knowledge. for the interest of that client is subordinate to the interests of all the other citizens con- — . and his fidelity. or a question of the rights of the citizens.
His oath to maintain the laws. which cause their violation.— ! 128 THE AMERICAN LAWYER. Salus populi suprema lex. Of course. magistrates. constables. stituting the State —who of are interested in main- taining the integrity the judicial system. sheltered in the breast of the lawyer. cannot be performed by giving advice. . and knowledge. but the latter go unpunished because. each and all. he should not prejudge. to aid or abet clients to take undue advantage of the law? The former can be punished because the acts are capable of proof. Yet how are these offenses worse than the conduct of lawyers who. 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. and in cases of doubt he is free to act as his conscience dictates. or resorting to acts. Is the one class of acts any less dishonest and lawless than the other? Policemen. influence. lawyers. are parts of the judicial system. sell their office. honest doubt as to the law. knowingly and deliberately. and all agree that a proper punishment should be meted out therefor. there is no adequate legal evidence. or honest doubt as to the facts.
s THE " DUTIES " OF A LAWYER. that his dealings with his client are confidential. represent his client. Therefore he works with perfect impunity. carefully and delicately the game which his client and when the job is to play. own benefit. the act is so insidious that it is almost undiscoverable. He works under the guise of his employment. He is alone with his conscience. When a lawyer cheats the law. somebody is wronged. to corrupt a magistrate to permit a criminal to escape. which is protected all over by the sacred armor of the legal principle. and the occupation of the lawyer degraded. to pay a lawyer to use his knowledge to defeat the law. The difference is not in the degree of the act. to defeat the law is "put up" he can go into court. but in the difficulty of detection. so confidential that he not only cannot be made to disclose what takes place between them. therefore. place the whole business upon the latter' shoulders. or plot. The client is not apt to disclose a secret. 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. can arrange difficulty. 129 To bribe a policeman to shut his eyes while crime is being committed. and the disresult in getting him into would closure of which The lawyer. but he is absolutely prohibited from doing so. and wrest from justice and the law. which is made for his — .
whereas. 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. he is equally culpable. and he appears merely as the representative. Is not this pure and simple dishonesty. duct affects the administration of and is the general salutary condition of the State. also be safely said that the prevailing popular idea of the lawyer. to the law and society. The modern . or knowingly aids the client in carryIn the one ing his own plans into execution. He insidiously fills the latter with false pleas and defenses. is rarely regarded by them. in modern times.130 THE AMERICAN LAWYER. case. is to look to. and think of. I am bound to say. the performance of this work. is — They are satisfied if the client and the general damage which such success may have worked. and in fact. In results to which the client is not entitled. successful. It may is. almost lost sight of indeed. or the other. the that his profession consists in thwarting law instead of enforcing it. few lawyers have ever taken time to analyze their true relations in this respect. too often justified by facts. the question as to how far his professional conjustice. that the tendency of the lawyer. nothing else but the client's interests. the lawyer artfully puts forward the client. he is often the principal actor.
inside common justice. or profound student. relying upon his past record." Availability is sought for not great legal talent ing about — or learning. When he is at the zenith of his professional fame. he can accept the flimsiest case with impunity. and. but a successful practitioner. or thwart this law?" "Go to Smith. If a citizen gets into criminal trouble. is OF one A. or unconscious of. lawyer goes with the current the more desperate the causes he wins. The them "great. that the most brilliant and learned of the lawyers are employed to defeat or strangle belief. LAWYER. and outside of the profession. ! are never thought much less considered." "Lawyer Jones is your man. he is very clever and cunning and will get you out of any difficulty." but "suc- Not a great jurist. the interests of — They The law and of It is the justice. he can hoodwink the court and fool the jury. of course. wholly indifferent to." "Do you want time and delay I know the man for you. .THE "DUTIES idea of a great lawyer public no longer calls cessful" lawyers. and wrangle and wrestle it through the courts. defeat." "Brown has great influence with the court. one constantly hears such phrases as these: "Whom shall we pick out to break. In castfor legal aid. employ him. And the rights of the public of. 131 suc- who can most cessfully manipulate the law and the facts. the greater his reputation.
good. and influence can be hired. and occupied. bad. he magnitude and delicacy of the questions involved. A successful lawyer. who falsely brags of his intimacy with judges. his necessities call for a pettifogger. — .132 if THE AMERICAN LAWYER. as thus understood. he wishes to postpone paying his debts. or indifferent. or. if he wishes to defeat a statute. and his ability to postpone and delay. that the lawyers of all classes can be hired by the first comer. whose time. but who sometimes has not even a fair power of presentation. knowledge.is as well leaders of the bar everywhere. of the lowest "shyster" or the most skillful counsel. or the policy of the law. in any kind of a case. In this view. if he desires to enforce an illegal demand. who desires to comply with his terms. every lawyer might be regarded as an intellectual prostitute. must necessarily be guilty in the course of his practice. known as any other public fact. the dishonest liti- makes choice (according to the . well socially gant needs the services of a counselor who stands and politically. whose mind. In some instances. 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. whose capital stock consists of cunning and impudence. as to fees. . whose experience. It is believed that big fees will command the It . and of his means). by any stranger.
to . It is his highest glory to be able to "I won that case. are intercase. in any The flimsiest defenses. of little — with feelings of real triumph. his knowledge.THE "DUTIES" OF A LAWYER. and in time he begins to regard. the victories which he wrests from the law. assailed the right of a lawyer to accept a and employment from any man. moral sense. successfully. about this part of the lawyer's business." and his air is more tri- umphant if it is a very bad one. his devices become more numerous. he be a man of fair natural. It has the approval of the people everywhere. or intuition. posed by the leading lawyers not by those in the middle rank of the profession. to the most retainer — corrupt or infamous individual in the land. No one has ever. his time and influence. 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. or underhand. of 133 many dishonorable and disloyal acts to the often will- State. he must suffer some qualms of conscience. His acumen is sharpened. In fact. the community looks with perfect complacency and composure upon a transaction in which the leading lawyer sells his talent. but fully. There is nothing secret. or pleas. at the sacrifice of justice and say. unconsciously sometimes.
condemning in the most unmeasured terms the client and his performances. the right of everyone to insist upon the exact forms and principles of the law being applied. — I allude to those instances in which there is no doubt. Yet if one contemplates the true position which the lawyer fills in the Government. To such cases I do not refer. is among the first purposes. the evil that must result to society. or the law bear in mind. while. is most extraordi- nary and anomalous. All these anomalies in law practice. are constantly witnessed. the exact dispensation of which. 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. for which society is organized. condemning the author and his acts. promote or sustain illegal acts. becomes apparent. civil or criminal. in any case. when he transforms himself into an agent. at the same time.— 134 THE AMERICAN LAWYER. . can take his pick of the Bar. where the lawyer is deliberately made an instrument to thwart the law and justice and he knows it. these paradoxes in morals. for defeating the object which he The idea legal is created to promote. as an auxiliary in the administration of justice. and applauding the lawyer who shields and sustains him! To-day a multi-millionaire. also in this connection.
it claims exceptional privileges. Fatuous When fidelity has no merit. are virtues highly to be extolled. for it then accompanies a grave function and is Who can encompassed by many-sided duties. it should be more closely scrutinized. are no longer but become positive vices. as in everything else. 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. no infidelity either to the client or the State. in the abstract. for the duty to the State begins at the point where the duty to the client ceases. — — mistakes and excesses here. Let me not be misunderstood. of which I have heretofore spoken. 135 sacrifices qualities of fidelity to. they serve. and the client. So those for. there is in reality no choice of evils. that is good. mutually to illustrate each other.THE "DUTIES" OF A LAWYEB. and both being bound up with each other. and which are so often illustrated by lawyers in their employment. and blind attachment to the persons of individuals has ended in ruin and even criminality. taking it at its best. A de- . doubt that it should then be safeguarded by an enlightened conscience? When it is so guarded. as in the case of the lawyer. But surely there are virtues. and presumably of equally vital necessity. in the mind of the advo- cate. and which. A bad cause has had its votaries.
needs revising. faithful. to the law and society. and he owes and can justly give him nothing more. of truth. of one lawyer may not be enough to affect the foundations of justice. skillful. rather. are with us. . subversive Its evil of ef- that principle. can have no vindication from the assumption that it is required by the princate. fects. it may be. courts. The lawyer's duty to society and the law must be constantly kept before him. or desire for success or pushes him farther. while a single act. then sign it is a sure things. are in opposition to each other. They and around us. If his zeal. any system of jurisprudence. for. that the whole of that state of system. rightly understood. and perverts and corrupts the adminisIf. for money. and. on the part of the advo- devote himself at all hazards to the rescue expense of the Law. therefore. he immediately encroaches upon his duty to the court and the State. lawyers. in plentiful measure. It is. termination. or all of the acts. private and public. to of his client at the ciple of fidelity. a condition of things exists in which fidelity to the client and the duty to the court. to be honest. and public opinion. cupidity notoriety. in the actual working of tration of justice. and diligent.136 THE AMERICAN LAWYER. need no amplification. The lawyer's duty to his client is.
137 the combined acts of a body of lawyers oft repeated. methods lectual of practice. fifty in distorting If the philosopher or let critic is looking for evi- dence of decay. for the minimum of respect and obedience. him carefully examine the and the moral and intelthe legal condition. or the law paralyzed. but if thousand legal agents spending their lives and prostituting the forms of justice. undermining the constitution and laws. silently and secretly gnawing cause It is it at the foundation of a great structure. the wheels of justice become deflected. than the responsibilities of the lawyer in this regard. misapplying and perverting its principles. under which they exist and thrive. One may not be single.THE "DUTIES" OF A LAWYER. are largely answerable. as a class. able to trace the effect of a or of a thousand. of the system of government. of profession — es- . will and magnificent surely ruins. gradually but into to give way and tumble perhaps not going too far to assert that the lawyers. dishonest and illegal upon the judicial system. Let anyone consider the effect of forty or practices of lawyers. Atlas had not a greater burden on his shoulders. you may be sure that such acts have contributed largely to the result. which the public has for the law. and he can make fairly accurate calculations as to the longevity. like an army of worms.
men have. the just and proper limits of their office. But a satisfactory conclusion may be reached. a vast area of debatable ground is opened. disagree. of the lawyer himself. where the influence of the lawyer is so potent for good or for evil and where in fact. of members the office in constant view. and honest. the true functions of the Bar. endeavored to portray . The general definition of duty. is neither visionary nor impracticable. which I have heretofore given. by keeping. In applying effort to cause The them to follow these general principles to particular cases. But I have now reached a branch of the discussion where the utmost delicacy. and may. and judgment must be exercised in its treatment. and the exact nature of which they fill. as I have heretofore it. and conditions. is dominated and ad- — ministered by him.138 THE AMERICAN LAWYER. and adhere to a strict line of duty. every branch of government. as thus laid down. generally. pecially in this republican form of government. without con- ceding that in it is subject to numerous exceptions The whole question rests largely. thought. It is impossible to state any proposition concerning these duties. an intelligent and awakened conscience. wherein many distinguished. is sufficient. to expose to the lawyers.
exigencies of their clients. to thwart and defeat just claims and demands. that the to human lawyers possessed opportunities. and use. that the legislators and the courts have not been unmindful of the constant temptation to this class. according to the lous. a review of the history of lawyers from their origin. many other deceitful and dishonest practices and schemes. distinctive feature of their education. a different class of lawyers evils would soon appear. if a system of education is introduced. The profes- As sion of the law holds out a perpetual temptation weaknesses. upon their admission. These practices have varied. and to either openly. which brings before them a clear conception of their position in the consciences if government under which they live if their are educated and thus quickened. and many would gradually disappear. to wander away from a strict line of duty. shows. and to resort to. or insidiously and secretly. commit many wrongs in behalf of their clients. while far from being full and exact. If 139 the lawyers comprehend these things. show that it has always been recognized.THE "DUTIES" OP A LAWYER. fraudulent. the course of justice. the cultivation of a high moral sense is made a . or the conditions of . I have intimated. to delay. by the interposition of frivo- and unfounded defenses. illegally. The oaths administered to lawyers.
but it has openly encouraged. Whether of the if with the title a lawyer knew. their opportunities to delay. claim whatever to and. we find that arguments have frequently been put forth. times. was it. not only applicable to contemporaneous history. not surprising. who knew the right and this criticism is And legitimate heir of a property. as showing that the lawyers were in some respects no better in ancient days than they are at the present time. that they have almost come to be recog- nized as a legitimate part of the lawyer's functions. Whether a lawyer. who had no to the estate . 2d. and public opinion has not only not closed its eyes to these things. For instance. to sustain the lawyers in practices which were openly and flagrantly dishonest. But they have grown so general and open. of the payment just debts. it was gravely debated in the sixteenth century between the Doctor and Student: 1st. . Suitors of selves of the all kinds have freely availed themor avoid. them. justified in concealing that fact and of investing another. therefore. with great solemnity and earnestness. or approved. of and had the evidence. that in the course of a research into these subjects. payment a debt.140 the THE AMERICAN LAWYER. It is. and about which it would seem that no two just persons could disagree.
and collecting the money a second time The Doctor. difficulty in reaching a conscirighteous conclusion in the prem- But there have been. in his defense of Queen Caroline. he said: "I once before took occasion to remind your Lordships. To save that Client by all expedient means. I. Dialogue Chap. . 141 he was justified in concealing his knowledge. but there are many who may be needful to remind. is the i "Doctor and Student. or resourceful lawyers. was an honest 1 man." Dialogue I. which was unnecessary. to protect that Client at all hazards and costs to all others. designing. happily for the age. that Client and none other. by the appli- cation of the principles of common honesty. knows in the discharge of that office but one person in the world. Dialogue II. XV. VI. discussions as plain since that time. others. which have done incalculable harm and damage to youthful. Chap. as those to which I have referred above. None more glaring can be cited than the sentiments laid down by Lord Brougham. Chap. and had no entious and ises. upon queswhich seem to be equally and simple in their solution. frequent among lawyers and tions of legal ethics. and among others to himself.! THE "DUTIES" OF A LAWYER. In that celebrated trial. XII. that an advocate by the sacred duty which he owes his Client.
Tweed and then. to sustain many ridiculous and false positions of advocates. as far 1 i Forsyth's "History of Lawyers. to the wind. perhaps never was language written." he piteously added." p. and he must not regard the alarm." heard a lawyer use this quotation in the of William M. and the great name of Lord Brougham is still used. Ed. in a letter to Mr. the suffering. if need be. separating even the duties of a parent from those of an advocate. if his fate it should unhappily be to involve his country in confusion for his Client's protection. but he need not have used Brougham. highest and most unquestioned of his duties. "I have learned to love William M. and casting them. Fo^th. the author of those destructive and unfounded views. Nay. to make "Ossa like a wart. despite the fact back as 1859. publicly repudiated them by saying that they were used as a sort of political that. and yet it has been relied on over and over again by lawyers. 1875. to cover all kinds of dishonest practices and defenses. or spoken.— 142 THE AMERICAN LAWYER. the torment. and his I defense — love together. he must go on reckless of the consequences. the destruction which he may bring upon any other. 380. of Brougham. . which contained worse doctrine than There that which I have just quoted. Tweed!" which perhaps he might properly have done.
men like Coleridge. not merely believing. to deed or put in evidence a forged will knowing it to be so forged.1831: "There is undoubtedly a limit to the exertions of an advocate for may it be able to produce. and a band round his neck do for a guinea. And Macaulay." Oct. for a gross exampie. with a wig on his head. unmitigatedly. by solemn asseveration. it is bounden duty. that was the exaggeration of an impassioned advocate. 143 it A better defense might be. his He has a right. In the discussion which ensued. by rhetoric. by play of i "Table Talk. But is the advocate has no right. but knowing a statement to be true. utmost sympathy of chivalric any rational view it was wholly. and to do it with all the effect which any exercise of skill.THE "DUTIES" OF A LAWYEB. had no difficulty in discerning the proper limitations. he should do all that can be done by sophistry. and disastrously bad. but it exactly suited the caliber of those who were to profit by it. in his Essay on Bacon. by indignant exclamation. menace. 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. it left it to his readers to say: "Whether it be right that a man should. to do everything which his client might honestly do. nor his his client. as. what without those appendages. he would think it wicked and infamous to do for an empire." . by gesture. defending an innocent woman whose situation natures. whether it be right that. whose opinion I quote. and called for the But in 1 has stuck like a burr to the profession ever since. 27.
83. some ceded duty. 85. or to continue their prosecution. unintentionally. throws doubt upon the subject. As an it act of this kind involves pure dishonesty." and that "when he (the lawyer) has once embarked in a case. by terrifying one honest witness. to prove And 1 yet even so pure a man as Judge Sharswood.: 144 THE AMERICAN LAWYER." No sophistry can obscure such a position as being wholly against the common principles of i Legal Ethics. important to specify which I think must be conviolations of the lawyer's leaving other acts. perplexing another. would seem to be only necessary to it. . when they are discovered to be false and without foundation in fact. principles state which governed by the general have endeavored heretofore to (a) To knowingly commence suits for the recovery of unjust and unfounded claims. therefore. without the consent of his client or the approbation of the court." features. 84. pp. of those acts. I deem to it. he cannot retire from it. or courses of profesto be I be clear sional conduct. to cause a jury to by think that statement false. by asserting that the lawyer "is not morally responsible for the act of the party in maintaining an unjust cause. state it.
The object in creating courts was to administer How. is turns atheist? A lawyer. right? How can the law be efficacious. and aiding in the "injuria. because he is willfully stabbing justice. by clearly affirming. . in a subsequent x that "Counsel has an undoubted right.THE "DUTIES" OF A LAWYER. If anything can be more distinctly immoral. 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. is by its to become of the own chosen guards? What sanctuary when the priest facts. ally responsible" for the act of a i Ibid. I cannot conceive it. then. 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. truth. with knowledge of the "mor- party in maintaining an unjust cause. office." offends his sense of what is just and justice. honesty. 96." which it is the object of all law to prevent or remedy. and are in duty bound to refuse to be concerned for a plaintiff in the legal pursuit of a de- mand which right. if it is slaughtered in the temple of justice. p.
upon the acquisition of the knowledge. And the lawyer. and of its entire — . and he cannot. perhaps. and there is no real excuse for not promptly abandoning such a cause. or business associate. A man who is conducting a dishonest case. a layman combines with. is guilty of a deeper and more striking offense because. would have a quick and exhilarating effect. without violating the privilege above referred to. existing rules of law. the world has never altered its views as to the nature of the If and unmitigated immorality. in defrauding another of his rights or property. is perfectly clear. or assists. should feel no disappointof escape an easy avenue ment in failing to secure legal assistance. his friend. as to the form and method which a lawyer should adopt in retiring from a ease which he discovers to be dishonest. but there is always — from such a situation. in aiding his client to do the same kind of an act. him cheat justice. There may be some room for a question. walk into court and loudly proclaim the dishonesty of his client. in addition to act. at once. a lawyer is forbidden betray the secrets which come to him under to By guise of professional confidence. to help of this from the Bar. and frequent rebukes kind. but that he should desert it.146 THE AMERICAN LAWYER. upon the morals of the liti- gating community.
par M. "Eleof Morality. 147 the innate immorality of his conduct. . It has almost come to be a proverb in the This is 1 ments See especially Whewell. however. Legal controversies. I. p. just demands. XV. which requires him "de refuser les causes dont il connaitrait l'iniquite." 2 acter of the lawyer (6) To knowingly postpone. he violates officer of the law. one of the besetting sins of modern legal practice." etc. Vol. the moral sense of the whole community is deadened. Cresson. or de- feat. c.. apposite quotations could be cited from the writings of moralists to sustain these views. openly indulged in. for I believe the subject perfectly clear. 303. strikingly confirmed by the oath of office administered to an Avocat in France. is when the true char- understood and considered." b. and encouraged. talked about.THE 'DUTIES" OF A LAWYER. S. but perhaps it is not more so in degree now than in the past. and upon society in general. When the laws can be easily thwarted. and legal claims or delay. however. have increased to such enormous proportions that there is little doubt but that such a practice. 2 fession "Usages et Regies de la ProdAvocat. 1 his oath and duty as an Many I but deem them is superfluous. 17. They are. II. has a direct and deep influence upon the morals of the lawyers.
family. 116. and future prospects. i Legal Ethics. p. of defending or postponing and legal claims. And in the tions yet. often. by a resort to — — technical There at is and dishonest defenses and excuses. when the subject is examined even most narrow light of the lawyer's funcand duties. is as great as the violation of any other plain duty. it is just and due. 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. of his career. are involved in it. presents an every-day picture. The appeal comes to the lawyers. The demoralization which is produced. in the life of a lawyer. sistible.148 THE AMERICAN LAWYER. but I have not the means to pay it. in resorting to such some step practices. it becomes perfectly plain that these practices. must inevitably be to the detriment of the principles of the law and justice. in a form which is almost irreThis. and sometimes the deepest consequences to friends. may be almost indefinitely postponed. law at all events. hardly a lawyer who has not felt justified.' no doubt. it is the general open boast of lawyers that any just and legal claim. . I want all the time you can get for me.
consequences ensue which are disastrous to the proper ad- ministration of justice. 116) con- . in such a case. to just claims. . appre- ciating the sults which generally refrom such application after suits have been refusal prompt he says: "If. be made to the plaintiff for time! But. for this ". an application should of the question. There is no doubt. except such as are required to be sustained by oath. however. The counsel may take all means purpose which do not involve artifice or himself or the party. which is incident to the ordinary instituted." Of course. which I am here discussing. 149 Judge Sharswood evidently felt the delicacy and he meets it by ingenuously saying that." (p. that be impracticable. it would seem that a suitor has a right to all the delay. But that circumstance does not alter the principle. course of justice. Pennsylvania existed under a pure common-law practice. to be falsehood in . common and extended. that many lawyers have received encouragement. by the abandonment of the lawyer's plain field of duty. from arguments or reasoning of this kind. when Sharswood wrote his little book.THE "DUTIES" OP A LAWYER. and the declarations and pleas were not under oath. The formal pleas put in are not sidered as false in this aspect. in the practice of inter- posing technical defenses. and it has made The the practice more is difficulty that.
"go to law and be involved in endless litigation and expense. He is an undisputed claim. if unsupported by merit. or disregarded. or The cated." are expressions that are familiar to everyone. not contempt." to law "Go and lose it all." "give it to the lawyers and be done with it. and the courts are established If for that purpose. fiable delays. and involve such expense. and trouble as substantially amount to a loss of their frequently claims. There is in conscience no act which has brought upon the if administration of the law more reproach. than these unrighteous and unjustiprocured by attorneys. is equally objectionable and truth. which may end in the far future. entitled to have them vindiof when they refused. the consequences may be as disastrous to the claimant as to the debtor.150 THE AMERICAN LAWYER. owner are has rights. The one is equally as false as the other. 'Individuals abandon their legal rights. plaintiff. annoyance. rather than embark upon the doubtful voyage of a litigation. Where is the line to be drawn? Certainly not between the formal pleas not under oath. and in this aspect the form of the defense. . these rights are postponed or defeated. for necessitous and dishonest suitors. and those which are attested by an affidavit.
shameful reproach upon justice. was sufficient to attract that great poet's satire. wholesale. So far as I can discover. in Shakespeare's age. in the transaction of legal. but the criticism of delays predicated upon false and dishonest defenses is not answered by a recourse to the past. and Jarndyce v. but its origin and continuation. which. proverbial. has now grown to such dimensions. Jarndyce. as to involve all of the legal agents. and the respect paid to them by the lawyers and the courts. 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. These delays constitute to-day a crying. and procured postponements under their cover.THE DUTIES OF A LAWYEE. that tendency of modern times. business. open. as well as other. In Chancery proceedings the delays were cruelly long and unjust. 151 in The "law's delay" has been English history. these delays were to a considerable extent the result of the intricacies and forms of pleadings. A hardly appreciable evil. Its danger lies in the fact that it has permeated . is not an exaggerated illustration of them. has been the general towards greater rapidity. and without doubt many dishonest suitors sought refuge for time. which threatens the very fabric of jurisprudence. It may be conceded. from time immemorial. were based upon grounds.
it invites prudence and economy. both directly and reflectively. and those who are charged with its administration. classes everywhere unblushingly use the lawyers to procure unconscionable delays. it is a powerful weapon for the proper education and discipline of families. must be dangerous to the former. It is an incentive to ambition. as an instituted organism.152 all THE AMERICAN LAWYER. The rule of permitting an individual to bestow his property upon his death according to the dictates of his will. Before I close under this head I must advert to of society. or even caprice. legal ability of their property and experi- ence. The this power is so apparent that I need not dwell upon it. judgment. In the connection which exists between the Law. all that subverts the morale of the latter. These practices. and if to one such vital organism. citizens and a most vicious practice of lawyers. it teresting right grew . also threatens institutions. in lending the influence of their office. to thwart the right of individuals to dispose by will. and to thwart and defeat the payments of their just debts and demands. must likewise be dangerous. so evil in themselves. No more sacred or in- up with the growth of jurisimportance of rigidly guarding prudence. to all. grows out of reasons which operate to sustain and make healthy the social organization. Whatever corrupts the community.
A The question whether an advocate should defend a person for a crime of which he knows. it is necessary to clearly define. and out of. property is wrested from devisees and legatees. intentionally whom the testators to have it. In the outset. and frustrate the testator's intention. . Upon feigned.THE "DUTIES' teaches charity. that the subject. has always been a favorite topic for discussion. But the lawyers have rendered this plain principle of law nugatory. The sacred right and expressly desire not becomes nugatory. 153 generates a respect for law and order. generally. in. 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. given to persons deliberately. when fully understood. or believes. has less practical importance than is generally ascribed to it. and it OF A LAWYER. and. and when they are successful. I however. do not intend to avoid the last-named issue by seeking refuge behind this third (c) proposition. No will is safe from their brazen and shameful attacks. they break wills. him to be guilty. I believe. and assumed grounds. the legal profession. which I have just laid down.
case against the accused. It may be. even if he should wish to speak. the peculiar circumstances of each case. He may also derive his knowledge of a crime." of the guilt of the accused person. its commission. or sees. duty? His mouth is closed by the law. communicated to him in his professional capacity. he is a witness. from a voluntary confession. made to him by his client. that there is a full. there might be a defect in the technical proof against the defendant. largely. technical. for obvious reasons. be practically disqualified from acting as an advocate. and consequently would.154 THE AMERICAN LAWYER. Should the lawyer advise his client to plead guilty? Suppose he gave . and must be conscientiously determined by the lawyer when they arise. the lawyer has personal knowledge of the crime. without his confession —which fact might influence the lawyer as to one course of conduct. what his disclosing information. On the other hand. if he is present at. is what If meant by a "knowledge or belief. 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. upon ititious questions. the same as any layman. which the confession would supply. because the law prevents him from is In such a dilemma.
and their duty. . is a lawyer justified in defending the culprit? With this moral conviction of guilt upon his mind. do not. promptly. is. With an opinion of guilt. and upon which men generally form and base their opinions viz.. form an opinion. keeping in sight the general principles which I shall hereafter. and lawyers in common. which is not quickly communicated to the public. 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. in view of its peculiar circumstances. and about which the community. 155 such advice and the client refused to follow it? I repeat that each case must be determined as it arises.— THE "DUTIES" OF A LAWYER. through the Press. generally. would compel them to obey such orders. in which prisoners have none. What question is. No important criminal act is committed. meant. is derived from sources of information which are open to everybody. when the asked if a lawyer should defend a person accused of crime whom he "knows or believes" to be guilty. based upon such sources of knowledge and belief. and from current and public report and rumor. The court certainly can assign counsel. therefore. briefly. as officers of the court. refer to. that his knowledge. or is belief. to defend all cases.
the guilty man would go unpunished. ance and stability. While there is no doubt that. prevent the conviction and punish- ment of guilty persons.156 THE AMERICAN LAWYER. juris- and humane. administration prudence. the person who committed the bloody deed discovered and arrested. There must necessarily exist in every community. yet all of the witnesses who had knowledge of it should die. to defend persons upon broad and wellgrounded principles. The requirements of the law could not be met. criminal jurisprudence could without such general rules. a cold and atrocious murder may be committed. as well as certain forms and rules for the trial of offenders. is entitled to demand be that each. These accused of crime. and satisfied. all. and justice would be thwarted. governed by law. the application and enforcement of these forms of criminal procedure. No system exist. and the mind of the community morally convinced if of his absolute guilt. before of these conditions. yet. exact and clear definitions of crimes. to of an intelligent. . social organization. criminal A person accused of crime. right of The the lawyer. upon their continudepend the very existence of For instance. at times. should is he of convicted. rests are indispensable conditions.
he performs a double duty one to the community. can have no existence. if the forms of the law are not complied with. impartial justice. are lacking. from that moment the liberties of England are at an end. — said: "I will for ever. at all hazards. 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. he assumes it before the hour of judgment.THE "DUTIES" OF A LAWYER. No finer or nobler exhibition of his real duty to the State. In doing this. to client. and the other to his client. and integrity of the English Bar. in preserving and upholding the forms of the law. assert the dignity. and in proportion to his rank . nay. without which. 157 that A his lawyer's right and duty. are. can be imagined. it is his duty to urge and demand the acquittal of his client. notwithstanding his own moral conviction of If the elements constituting the crime guilt. from what he may think of the charge or of the defense. If the advocate refuses to defend. he assumes the character of the judge. charged. should be proceeded against in a legal and orderly manner. As Erskine eloquently. than the position of the lawyer. almost passionately. the most valuable part of the English Constitution. under such circumstances. independence. demand charged with crime.
and that his duty to forms of the law are carried out. in whose favor the benevolent principle of English law makes all presumptions. I place the right of the lawyer upon the ground it is that he is an officer of the law. to defend he believes to be guilty.158 THE AMERICAN LAWYER. puts the heavy influence of perhaps a mistaken opinion into the scale against the accused. Why could see that the . and reputation." This utterance. was made in a great public case. A lawyer can always demand that the forms of the law should be complied with of the lawyer. and which commands the veryjudge to be his counsel. yet the principle applies to every case where law can be invoked in behalf of a party. until his guilt has been officially and finally declared. as is known. quite irrespective of individual knowledge. whom formation. might be used with equal force by an accessory after the fact. through the ordinary channels of in- and upheld. by a court and jury. because he often does know. in the sense that he has a moral conviction of the guilt of his client. upon the ground that he cannot know that his client is guilty. I do not place the right a client. which he has derived. The argument that the lawyer cannot know of the guilt of his client until he has been officially adjudged so.
that the nearest relations are not suffered to aid or relieve one another. a house or other shelter to conceal him. to comforts. or who. as. And generally any assistance whatever. or abet. or abet. to punish. to rescue or protect him.THE DUTIES " OF A LAWYER. capture. trial or punishment makes the assistor an accessory. or punall persons who aid. a criminal to escape detection. or after the fact. And so strict is the law. where a felony is actually complete. in order to do effectual justice. that he could not know that a crime had been committed. after its commission. fore. money or victuals to support him. rules are adopted in the body of the criminal jurisprudence. because the person whom he had assisted. with the same reason as the lawyer. is An accessory before. given to a felon to hinder his apprehension. severely. An accessory after the fact is a person who knows a felony to have been committed. it is in first place requisite that he knows of the felony committed. had not been adjudged judicially guilty? In every civilized government. or assists the felon. If the parent assists his the — . in the ishment. or open force and violence. There- make an accessory ex post facto. furnishing him with a horse to escape his pursuers. 159 not every accessory after the fact declare. aid. commission of crime. and who relieves. recognized as almost as bad as the principal criminal.
real service do not believe that any can be .160 child. criminals to escape their just and necessary punishment. And and I the confines his efforts to rules of the community cannot suffer. A married woman. for the maintenance of society. or assist. 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. with what strictness and severity. to defend a person in those cases where he has a belief. the hand of the law is uplifted against those who aid. because she is presumed to act under the coercion of her husband. if who have any of them com- mitted a felony. is quite clear. To do this he can — — knowledge and experience. it would seem to follow. THE AMERICAN LAWYER. or shelter. or the servant his master. of the guilt of his client. if he simply demanding that the forms law be carried out. therefore. without a resort to dishonest and covert means and practices. or even receives his wife. that the lawyer's duty. We see. If these views be correct. or the child the parent. if the brother the husband receives the brother. the receivers become accessories ex post facto. does not come within this rule. however. and all advocacy in his attempts to acquit clients. or a moral employ his of the arts of conviction. the master his servant.
whether he will aid. " Reports in the Rolls * "Doctor and Student. 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. K . of the Laws of England. Lord Langdale. that a court is a place where justice 1 is judicially ad- and the remarks of an eminent Equity Judge. the author of the immortal Dialogues between a Doctor and a Student. With a of the general nature of his duties. that "lawyers are ministers of justice. nearly four 2 centuries ago. a faithful and intelligent representative of his client. or in considering any more conception with the himself to determine. in the discharge of his duty. it is court in the real meaning of the term. the lawyer becomes the most useful and important member of the community a true patriot of his country. Court.: THE DUTIES OF A LAWYER. front him. all for kinds of conditions constantly condown. 161 rendered to the profession by pursuing this line of thought further. Germain. justice. And Christopher St." p. lawyer No special rules can be laid or defeat." p. a rule which. laid down in beautiful but strong language. 15. 659. acting in aid of the Judge before ministered. if it could be followed. whom they practice" —the lawyer — cannot go far astray. In the complete performance of the latter. and a useful officer of the court.
It should be first. And if thou do thus. that thou do nothing against Truth. and as part of it. not wholly innate. and genuine hard work. and most important. as thou wouldest should be done to thee. comes of training and education. it doth not spring up spontaneously or by intuition. that thou love that which is good. that thou do justice to every man as much as in thee is. I trust the lantern that is in thy conscience shall never be extincted. it is the result of an exact and perfect study and comprehension of and duties of a lawyer. that thou do to another. Along with. thou do observe and keep equity. part of his legal education. which should guide the It is lawyer. it is necessary that thou ever hold a pure and clean conscience. fore. that all that house may be seen thereby. and what he ought not to do. forasmuch as it behoveth thee to be occu- "As a light is in the pied in such things as pertain to the law. the office made the . is set in a lantern. at some time to master the history and science of the Law itself. the lawyer is bound by study. and also that in every general rule of the law. self-denial.162 THE AMERICAN LAWYER. and then. and fly that which is evil. 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." But this conscience." "And I counsel thee.
race. and prepared. 163 of liberal reading. that his standards of men should not be the abuse of the ideal. or flippant. the vision soon opened to him. may become the limits fixed the cause of great evils. . and creed. on the other.THE by a course " DUTIES " OF A LAWYER. All his powers. he should enlarge his sympathies. but humane and generous. otherwise. and run into the impractical and visionary. or the self-asserting. on the one hand. always. by nature and circumstances. in the clearest and fullest sense. even when accompanied by mere honesty of purpose. keeping in view. To a man of his so equipped is whole duty. mind all and seek to eliminate from his narrow prejudices of nationality.
now. will take effect upon the next generation. and build a new one in its place. not exterminate. existing 164 . cannot be extirpated. CAUSES AND REMEDIES. and it can be hoped. — or Barristers. divided into two classes. for they are. until by degrees the whole edifice is sound. to attempt to reform. and new ideas of reform promulgated. Attorneys. The ground can be prepared. inextricably. They bear fruit. and to suggest remedies. Therefore it would be useless. as a whole. and its evil results. that eventually a new race of lawyers will appear. which. evils. They very rarely produce a full crop in the season in which they are sown. the present generation of lawyers. A conspicuously rotten plank may be replaced by a new one. An old and pernicious system. will essentially mitigate. scatteringly. involved in the meshes of codification. in if my opinion. I proceed now to classify the existing con- ditions and their causes.CHAPTER X. The seeds of reform are of slow growth. as one would raze a house. and Counselors. or Solicitors. which.
A person a to who possess real. qualified. II. ELEMENTARY. in its addition the other necessary qualifications. No certificates from should be accepted. (a) and instruc- In length of time of legal apprentice- ship. also. Deficiencies in education tion of law students. as proof of these requirements. Reform of the law cannot be superficial. Insufficient educational requirements and examinations preliminary to matriculation as a legal apprentice. under the direction of properly appointed. I. examiners. wishes to study law should elementary education. and. and colleges. be able to pass an examination. legal apprenticeship. It must go to the root of the evil. the Latin language and general should know literature. preferably Spanish. He should. of an actual examination. It must begin at It must be contemporaneous with the bottom. in one other modern language. AND LOOSENESS IN THE PRELIMINARY. AND LEGAL EDUCATION OF LAW STUDENTS. IMPERFECTIONS.CAUSES AND REMEDIES. . 165 FIRST: THE FIRST CRITICISM IS THAT THERE ARE GENERAL DEFICIENCIES. from our expected future relations with that race. but each candidate should pass through the ordeal. or schools.
in a law office. In fine. It is avoided and shunned as rather disreputable. (d) No instruction in the functions and duties of legislators. as a (b) Absolute want of instruction. that he does not occupy a first rank in the profession.166 THE AMERICAN LAWYER. a certain obloquy. evidence. or insufficient. and citizen. should clerk. Columbia College undertakes one of her courses. It is fashionable to taboo this branch of jurisprudence. To say of one "he is a purely criminal lawyer" involves. law. and the in- to fulfill this requirement in and attention neces- sarily superficial. — may Notwithstanding this ignorant criticism. it be confidently asserted. than seven years. or insufficient. in the functions and duties of lawyers. or inadequate. constitutional. connected therewith. awaken and exthe best mental and moral qualities of lawyer. instruction in American historical. instruction in the primary principles and elements of jurisprudence foundation. object. in its origin and purpose. and practice. that the study of criminal law. it is assumed. and Federal and State. of be actually spent. (c) No. of legal apprentices. and 1 spirit of laws. (e) No. advocate. but i and practice the time struction is too short. instruction in criminal jurisprudence. it is ercise. and in the pleadings. and professional ethics. . (/) No. nature. and has an able man to perform the function. It should be not less which three.
and Practice the — 1 Except in a few instances I do not mention the text-books which should be adopted. 167 impossible to conceive of a great civil lawyer. but a judicious selection can be made by competent lawyers. There are too hastily put together. In addition to prolonging the apprentice1 ship to seven years I advocate the following 1. by a complete mastery of Blackstone's. The abolition of "case" law as a fundamental means of instruction. who III. in the office of a practicing lawyer. Case law is taught. The study of institutional law. and the introduction of the study of law from text-books. Evidence. Pleadings. and Kent's Commentaries. not a word. Most of . There Colleges. clinical training. and Walker's American Law. Deficient and non-systematic education in all of the branches of law. (g) No. instead of elementary Blackstone. in his commentaries. which should be dropped from a legal course. from Law are superficial. has not considerable knowledge of criminal law. Requirements of law examining boards is Academies and practically abolished. or insufficient. 3. them are good and bad ones. law. substantially as follows 2.: : CAUSES AND REMEDIES. the greatest institutional is writer.
Equity Jurisprudence. The law of principal and agent. Domat. embracing Federal and State practice. 6. The law of personal property. 12. Constitutional Law. and Equity and Common-Law practice. Criminal Jurisprudence. together with the principles of legislation and the duties of legislators. The law of corporations. 13. The law of Executors and Adminis- trators. The law of real property. Macintosh's " Discourses on the Study of the Law of Nature and Nations. A course of lectures. including Federal and State." Puffendorf. 5. or education.168 latter THE AMERICAN LAWYER. 11. The domestic relations. 7. Natural and civil law. and d'Aguesseau. Pothier. 4. 8. Grotius. and spirit of law. The law of contracts. foundation." Judicious Selections from Savigny. 15." Montesquieu's " Spirit of Laws. upon the history and chronology of the law reports. with such books as the following : < Paley's "Moral and Political Philosophy. The law student should know the history of the re- . 14. and the principles." Burlamaqui's " Natural Law. 10. 9. study.
TO SAY NOTHING OF ITS BALEFUL INFLUENCE UPON THE LAWYERS. 169 and where. E. can be made interesting and fresh. (1) DELAYS. 1 they were published or promulgated. But. are necessarily encountered topics by the student in his general reading. and when and how it is commenced and pursued. and. have not embraced all of the involved in a complete legal education. . primarily. under proper tuition. instead of being a burden. and opening up to the student. They can be specially pursued if desired. : logical and historical SECOND the existing state LAWYERS ARISES. of the law and PRINCIPALLY. ports. (2) COSTLINESS. trary. The study of selected cases.CAUSES AND REMEDIES.. AND (3) UNCERTAINTY. BY WHICH THE PRACTICE OF THE LAW IS CONCENTRATED UPON FORM. and an effort. RATHER THAN SUBSTANCE. the study should be begun in a natural way. such as Admiralty and Patent Law. INVITING AND CREATING WHOLESALE TRICKERY AND SHARP PRACTICES. commencing with the organization of society. it can be converted into a delightful occupation. the development of the law. and under what circumstances. ALL PRODUCING THREE OF THE WORST ENEMIES OF JUSTICE AND JURISPRUDENCE. I. SO CALLED. FROM CODIFICATION. It de- pends upon the tuition. This order of legal study is of course arbiThe study of the law. but these. 16. and all of the other subjects omit1 1 ted.
has written own epitaph. Jurisprudence of ignorant. title it . have been abolished.170 THE AMERICAN LAWYER. It should be called: "An Act to complicate. and proceedings courts of this state!" How own the irony of legal history frowns on this or. has and imper- of law. attempt to amalgamate law and equity. 3339: " There is only one distinc- suits in equity. render uncertain the practice. assumptious sentence. and proceedings of the courts of this State. or standard. fect codification. Reformers indulged in the futile. multiply. and pleadings. Behold the title to the New York Code of Civil Procedure! "An Act practice. is the difference between a surgeon and a butcher. The difference between a common-law lawyer. The those actions and suits. to simplify and abridge of the the pleadings." between actions at law and . and the forms of form tion of civil action. The Code has earned its perhaps. and the practitioner under the Code." The effect of the introduction into American illogical. of all its its intellectual been to deprive the practice science. and to change wholly the so-called grade. 1 1 Sec. Among other vain pretensions. it would be more truthful its to say. befog. and ignorant.
thousands of litigants have received purely equitable is Jurisprudence impracticable. statement. of of the Code. they carefully preserved. the Courts and the Bar. and to convert him into a disputer of the meaning of statutory language. and its forms and . I cannot undertake a full criticism of codification. are engaged in the pursuit of technicality and form. relief. general. the distinction — index! I only indulge in this single. 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. the Courts of Equity. which is not receiving courts new interpretation from the or without stumbling The effort to upon some gross blunder! make the law. Since the adoption of the Code in 1848. from a study of the elements and principles of jurisprudence. CAUSES AND REMEDIES. And. has been to divert the student. 171 At the same time. Instead of seeking the truth. sweeping. (as witness the banishment of Blackstone as a whole) upon which the maxims and rules of the law are founded. in what were known as Special Terms —where trials were had without a jury. that one cannot cast his eye upon any part a daily bath.. forbetween law and equity is abolished in New York! The effect of modern American codification. without the sep- two systems.
containing records of disputes upon questions of form and practice and to substitute these latter and minor considerations for those of substance. justice." has now been thoroughly exposed and exof common-law ploded. Invoke the thousands . ignorantly. called "law reform. without the certainty which had been evolved from it. more completely and handsomely. of the it — common law. of the violent criticism of the practice and pleading. We have had in New York 1848) of nearly sixty years codification. complained of. Never. it has ruined at least two generations of lawyers and it will probably ruin two more. or its harmonious relations. In money. has cost millions of dollars to suitors. and right. to influence what was. and technique. 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. an open book to all. upon which public sentiment was created. We have now every one of the evils. in practice. of experience (since and the experiment has been a lamentable failure. in the old system. as a science. was the system.172 practice. to the whole of the law. THE AMERICAN LAWYER. fallacy. and principally. — — — — The forms. to cause delay and expense in the administration of the law. of silent wit- vindicated.
all that was needed of —was. To say nothing of the extra costs and expenses. but. calling for amendment. found it more easy to destroy barbarians. York. collected in 173 New on the shelves of law libraries. struck a blow at the most prominent feature of the law. to extirpate a whole system to correct a few evils inseparable in some shape from any system. than to understand or who. when the pruning knife was to my mind. enshrined law reports. or the ability. itching for the title of law reformers. arose out of mere questions of form and practice. simply the work came from the impatience of those who. or who had an ambition to reform. and supplied all deficiencies. in the shape of legal precedents. It . to cut down and cast out as worthless a whole body of judicial procedure. and destroy to produce a — . most of the cases. the attempt to simplify has been to bemuddle. but the wellconsidered growth of ages of experience.CAUSES AND REMEDIES. never arbitrarily imposed. without the time. to accomplish it. confound. and its practice. the manifold delays and intricacies of legal procedure. when a few simple amendments would have remedied which testify that in the all to dig redundancies up whole. nesses. The forms of the common law. not understanding what they destroyed. may have been the subject of some just criticism.
narrow. and encyclopedias of law. qualities are put in a proper crucible. from the study of the elements and principles of jurisprudence. a . there will gradually be formed. they are found not to be of the real quality.174 race of THE AMERICAN LAWYER. They are put together quickly. Legal digests. They shine. pigmy lawyers. chattering and quarreling over the meaning of words. have diverted the legal student. that it is almost impossible to detect their spurious quality. and forms. and chaos of codification." he stops at mere form. or first water. and unjust distinctions and arguments. to a search after cases. sophistical. and blaze at a distance. He has become a mere "case lawyer. has invited and encourages technical. practice. in the hands of an expert. analyses. The manufacture of artificial diamonds. and perfect moral. Out of the confusion. in efforts to defeat real justice. doubt. The modern Codes produce artificial or paste lawyers. Codification has prevented the full development of the sic qualities of intellectual. I am of course speaking as a whole. in the Code. without the magnifying glass. and emeralds has attained such a state of perfection. and foren- lawyers. and made to shine by false and artificial lights and colors. rubies. The multiplication of precedents. illogical. but when their sparkle.
how many lawyers' offices does an individual need to visit. where there exists no rated. And the codifying fiend. which. For example. still perseveres. but upon sharpness and cunIn the effort to sustain themselves. and litigation. in his devastating work. three codifications since 1848. and after years of experiment we will land exactly at the spot from which we started. much unnecessary and unfounded litigation is inaugu- and many disgraceful practices engendered. practically. leaving everything black and ruined. because necessarily many of the law- yers depend. way-worn and come traveler. upon professional knowledge and accomplishments. if the legal lost mind. in a jungles. . and continues illegal. like the ravages of a prairie fire. spreads over the whole system of jurisprudence. which will closely resemble that of the common law. fate. 175 and compact system. be not the evil to some otherwise more Facilis descensus Averni. not ning. of legal forms. YERS. logical tice. and fraudulent practices. to procure an attorney to make a defense to a suit. It creates. IS DETRIMENTAL. un- founded. in its course. Already there have been. pracand procedure. demands. that like is. AND THE MORALE.CAUSES AND REMEDIES. encourages. THIRD: THE EXCESSIVE NUMBER OF LAWBOTH TO THE COMMUNITY OF THE PROFESSION.
not go beyond the first office. But when an individual wishes a lawyer to interpose a dishonest defense. he will probably not be fatigued in the effort to find him. clients? badly trained.176 meritorious THE AMERICAN LAWYER. or an entire de- women spend days Cunning and trickery often displace real knowledge and ethics. action. If one sensitively honest lawyer be found. have briefly outlined would immediately operate to of lawyers. ens of others who will act. a whole cause of action. naturally. such as I here. AMONG THE MEMBERS OF THE BAR. But do not place all of the blame upon the shoulders of the lawyers. as by not . that the introduc- tion of a system. or substantial answer? Men and in searching for a peculiar kind of precious stone. possibly. fall Besides. or a brooch. The lawyers will weave from a mere thread of truth. It An number would follow. AND THE ALMOST TOTAL LOSS OF AN espHt de COrpS. or a present. or unjustifiable. there are dozfense. The lack of respect for the Judges. if he wishes to institute an unfounded. how much of the obloquy should upon the of. He will. curtail the number FOURTH: the general lack of manners. lawyers makes the profession cheap and common—pleexcessive beian. And he will encounter the same experience.
which we follow. As Burke says. AND LITERARY. TO THE EXCLUSION OF INTELLECTUALITY. CULTURE. and. for the profession. its members. discourtesies brother among lawyers. making the practice of the law. It FIFTH: has enabled its possessors to buy. undoubtedly. evident that the ambition to excel by right methods must be crushed. AS THE SOLE CRITERION. POSITION AND DISTINCTION. produces a contempt for each other. the respect for of the age and experience of lawyers. then. is When such a criterion adopted. THE ADVENT OF WEALTH. affected the prestige of the legal profession. political and only social attained learning. professors hold them- A good-sized book could be written upon this aspect of the subject. like a fight between ruffians. and of the long and studious vigil? . and deprived true ambition. positions. is the formation of character. for the possession of plunder. REFINEMENT. or secure. of what use. which should be refinement and This has. of it is and moral influence. habitually saluting 177 want them with uplifted hat.CAUSES AND REMEDIES. any profession selves. OR SOCIAL. by real merit. Lack of manners. OF ARISTOCRATIC." "The degree is of estimation in which held becomes the standard of the estimation in which the.
and where their compensation. INTER ALIA. If fame and power. and perhaps more important. is based upon the ultimate outcome. supplant profound. SIXTH: The institution of incorporated companies and agencies to transact conveyancing and legal business with cheapness and guaranties. RESULTING. of the business. and adds a positively corrupting element in the lawyer's ambition. and professional honors and emoluments. The THE RADICAL CHANGES WHICH HAVE OCCURRED IN ALL PROFESSIONS AND BUSINESS AND COMMERCIAL OCCUPATIONS AND RELATIONS. then. fact that the profession of politics can secure judicial positions. (very soon it will be through politics alone). instead of pure counselors. IN THE FOLLOWING: Changing law into a business. where they become associates in business adventures. which has been to deprive the lawyers of a large part of their old business. will be enlisted on the side of politics. and politics.178 THE AMERICAN LAWYER. not law. and to drive them into new. can be obtained through politics. legal knowledge and ability. fields of practice. tends in the same direction. and profits. become the aim and end of the lawyer's aspirations. technical. good business judgment and acumen. effect of The . where hard common sense. such influence as the profession gives.
classic. also tends to lay open to . I SHOULD SAY " FORCED"). IN JUSTICE TO THE BENCH. 179 Rendering the study and practice of forensic eloquence. otherwise. OF RULES. one of pure commercial business. of ornate. and finished legal arguments. INFLUENCES IN THE PERFORMANCE OF THEIR DUTIES. of an undefined FEELING AND SENTIMENT THAT JUDGES IN CERTAIN LOCALITIES ARE. EIGHTH: the existence Whatever tends. They do not so much produce brevity of speech. — SEVENTH: the increase of litigation HAS CAUSED (PERHAPS. OR OTHER SOCIAL. WHICH FURTHER LIMIT THE TRUE SCOPE OF THE LAWYER'S FUNCTIONS. to lower the proit fessional standard. make the occupation of a lawyer. as they destroy the taste. with all of their elevating and refining influences. These rules. unnecessary and superfluous nay almost ridiculous.CAUSES AND REMEDIES. SUSCEPTIBLE TO POLITICAL. and render useless the cultivation. TO A GREATER OR LESS DEGREE. and eral all those habits of mind which connect the profession with literature and genknowledge. tending more and more to degrade the law into a mechanical occupation. FRIENDLY. THE ADOPTION BY THE COURTS. OR EVEN CORRUPT.
this imputation. but one exercising a supposed moral. or opinion. This is the worst species of corruption because the judge. or influence. upon the mind of the judge political —one to whom. in favor of his friends. concealing his judicial discretion in a mist of meta- — . It makes it appear to the litigants that it is necessary to select not an advocate of a higher order of intellectual endowments. 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. free from actual bribery. equally as bad in judges. and without regard to the harmony of the judicial system. independent. Not undoubtedly exists in many necessarily based upon its the physical corruption of the judges (a rare vice). —there results is a moral corruption. judgment of the highest importance the judge can throw his discretion. or legal learning. But this sentiment of our larger cities. or is the question "close" is —when where strict.— 180 THE AMERICAN LAWYER. legal in cases of intricacy or doubt. the bar upon the and the com- munity.
The natural demoralization. POSSIBLE. awards the judgment. It is one of profound importance. many some arrangement beof a contingent char- tween lawyer and acter. which such conditions have upon the bar. HAS UNDOUBTEDLY AFFECTED THE CONDITION OF THE HOW GREAT. NINTH: THE ENORMOUS EXTENSION OP THE PRACTICE OF CONTINGENT COMPENSATION. from expressing any final opinion upon this subject. without a possibility of redress. TO SAY. stifle own ability. appreciated and the clients and courts do not escape their are — the contagion. TO SOME EXTENT. IT IS NOT BAR. without client.CAUSES AND REMEDIES. and resort to means which more certain of success. readily. The power . sacrifice their own convictions. The power and wealth I refrain of our corporations are so tremendous. EXACTLY. 181 physical doubt and false reasoning. as bearing on the morale of the profession. contrary to his inner conscience. it is sure great hardship and wrong would occur. that in instances. the lawyers who breathe in such an atmosphere. and on the administration of the law. can be. and to the real equities of the case. It is also one of great delicacy. In litigation involving large and important results.
of the results of an appeal to the law. with the increase of litigation. and a perversion and confusion of the mind of the advocate. besides. often of a doubtful character. such practice generally can be reconciled. on behalf of a poor. are almost overwhelming. with lawyers. of these bodies.182 THE AMERICAN LAWYER. and with professional honor. the question of fees is changed into commissions. conin party to the suit. Without contingent arrangements. and therefore. The uncertainty. In those instances. and when the fee itself in no wise takes advantage of his necessities. a kind of fraud upon the court. can be subserved. a formulator of It is. client. When the interests of justice. and this adds another powerful motive to contingent arrangements. or divisions of profits. their power would become oppressive and tyrannical. litigation. do not prevail. has increased. and is not the direct cause of much unfounded litigation and blackmail. or helpless. the ordinary difficulties which surround the subject. where pure commercial business results are sought for. with the interests of the community. making the lawyer a . and the lawyer being transferred to a mere agent. without litigation. necessarily. But the point is whether the practice of contingent fees has not outgrown all just proportions. to contingent fees. and concentrated methods. The sists ethical objection.
and no matter how pusillanimous in figure or mind. in Court. " So may The world subject. alone. and. stop less suits which are now begun. 183 the non-existence of a division of the bar into two classes: 1st. the factitious influences are very great. 'Much has been written upon this and con. See ante. in awakening and holding the respect of the community. 2d. in England. for the In the administration of justice. he effectually controls the vast audience before him. or badge. . GOWN OR APPROPRIATE BADGE The fact that lawyers do not wear a distinctive gown. The single judge sitting in his judicial robes creates a certain feeling of awe. pro the outward shows be least themselves is yet deceived with ornament. attorneys or solicitors.CAUSES AND REMEDIES. p. which tends to decrease the respect of the community. require the profession to be divided into two classes. of. and increase business. counselors or barristers." but I have felt it unnecessary to open it fully here. profession. is another element. 1 I alluded to this subject. distinguishing them from suitors and spectators. many cause- ELEVENTH: the lawyers should wear a IN COURT. 81. : TENTH decided No matter how this question might have been many years ago. the vast changes in. and making their calling a marked one. I think have already I have said that this division would.
employment. The distinction between a federation of States and a Nationality. when he enters the field of jurisprudence and politics. His mind and training incline him to free and pure thought and independent judgment. I shall Here end. in the and political happiness. in its pristine people.184 THE AMERICAN LAWYER. The freedom of some of my remarks will doubtless create antagonism in some minds. and securing sometimes restrains it. as far removed from commercialism as possible. That judgment is constantly called into exercise in every description of do- and personal concern. permeatall its ing and vitalizing it branches. I hope it is unnecessary to say that I love the profession. and necessarily the people are less interested in public questions. it seems to me. where his mind is naturally affected by the bias of an advocate. his acts and mestic opinions should be of the greatest value to the would build up a race of pure lawyers. is growing dim. It will interest of social . while system of government. Trained in the knowledge of human nature. I vigor. is the saving ingredient in the composition of a democratic liberty. The country needs such a class more than ever. 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. The Bar. and have at heart members.
have called attention. an entire sympathy." . it should not have written.CAUSES AND REMEDIES. I can pity the temptations with which it abounds even while I urge its reform. Otherwise I noble calling. to us all. 185 probably be the strongest where the lawyer himself is the purest. I must freely and in the venerable language familiar maintain. With such I have Long and many-sided ex- perience and observation. in all those respects. and has had the least opportunity of actual contact with certain kinds of practice. He will think that he advocates the interest of the profession by denying the existence of its evils. however. as the life of which has formed so large a part. "Of this I put myself upon the counto which I try. convince me of the truth of what I have written. and for all those great purposes. The welfare of our is as dear to me. on a large scale. That reform is needed.
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