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Cornell University Library
The American lawyer, as he
was— as he is-
3 1924 018 771 265
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f'ORfcEl.T vv RhELL
Cornell University Library
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" &c.." "The Anglo-Saxon Century. NEW YORK 1907 .THE AMERICAN LAWYER AS HE WAS—AS HE IS—AS HE CAN BE BY JOHN Author of " The " Interstate R." " Commercial Trusts." Commerce Act. &c. DOS PASSOS NEW YORK BAR OF THE Law of Stock Brokers & Stock Exchanges. THE BANKS LAW PUBLISHING CO.
Jopyright. DOS PASSOS . 1907. by JOHN R.
since the Civil War 35 CHAPTER V The Education of the Lawyer. and the Conditions Practice. and his under which he Oath is Authorized to 50 CHAPTER Nature of Lawyer's Vocation VI 68 iii . and the Bar.CONTENTS CHAPTER Introductory I PAGE 1 CHAPTER II The Genealogy of the Lawyer 7 CHAPTER III A Parallel Between the Past and Present Lawyers of the United States 12 CHAPTER The IV Press. the Stage. the Literature.
IV CONTENTS CHAPTER VII PAGE The Lawyer's Political Employment as a Legislator. and in other Capacities. The Duties of a Legislator 85 CHAPTER VIII 115 The Obligations of a Lawyer CHAPTER IX The "Duties" of a Lawyer 124 CHAPTER X Causes and Remedies 164 .
Still each is capable of separate. public thought is reflected. and the throat. INTRODUCTORY. CHAPTER I. as creative forces. bear the same close relationship to each other that the nose. in shaping the course and destiny of the nation. It is assumed that what the people of the United States really think or want.THE AMERICAN LAWYER. do to the head. and more or less created. not undertake to estimate the relative value of each of these organs. as citizens. the eyes. I shall four great organs of public opinion. and the Stage. A 1 . In the inis expressed through the ballot box. the Bar. the ears. —the by the Pulpit. terim of these official utterances. but it is impossible to discuss one without keeping them They are parts of a whole. the Press. They all in view.
therefore. must be filtered through the lawyers. here and there. They framed the former instrument. the Press. In a confederation of States like the one which we have established. They both make and interpret the laws. with a written Constitution. in all branches of public and private life. but it is only by acquiring a correct knowledge of them all. but I must elucidate it. and for the people. The lawyers swarm in all of the departments of the National and State Government. going too far to and afterwards as lawyers and Judges. and devoted to the administration of mand . and the Stage. While this is said to be a government add. first as politicians. the crude sentiments of the people. perhaps. honest. My subject is the Bar. At least. it seems natural that the lawyers should predominate in the government. and while they never act in public questions as an organized body as a unit their influence. is most profound and penetrating. both the right and interest of the whole people to delators. of the people. — — that lawyers should be intelligent. by brief reference to the Pulpit. it subject to the lawyers.2 THE AMERICAN LAWYER. capable. affairs. that one can fully comprehend the combined influence which these four organs may have upon existing distinctive treatment. is by the people. It is. then as legis- — not.
legal While the multitudinous treatises which writers have published. no one has yet made to their office. the laity has paid no attention to the subject. precedent. It has been overlooked. judicial and legislative. by the lawyers in respect At least. and control. to graze upon all of the pastures of public office. executive.— INTRODUCTORY. The reason is obvious. and . when they swarm in. and depend upon ethics. the important region of the lawyer's vocation seems Apparently no lawyer to have escaped them. every branch of the government. He who ventures therein must be prepared to quit the sacred precincts of precedent and stare decisis. 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. 6 When hundreds of lawyers are turned out upon the community each year. public the results of an investigation of the profession. introspection of itself. It is a subject more literary and It carries one far beyond general. In every aspect of life. than legal. real. it is to be classed among the most important of commands. or neglected. pable truth. "Know thyself" was the Delphian invocation. no question is of more importance to the people than to know whether this dominating class is Despite this palliving up to its true mission. justice. cover almost every inch in the extensive field of technical law.
lawyers become authors. to reduce the law to a science. and while their works have done something. It is of the first importance to endeavor to ascertain. the due relation of lawyers to other interests of the community. they are unable themselves from technical and professional restraints. all of this. within to free itself. natural conditions. yet its more comprehensive relations have escaped them. Men do not like to confess. which underlie human society. What is a lawyer? What is his real mission? What relation does he bear to the government What are his real of which he is a citizen? — — duties to society? . But beyond when a lawyer under- takes an honest introspection of his profession. accurately. Hence the enormous importance of those aspects. He must then say some ugly things about himself.4 the THE AMERICAN LAWYER. and then to inquire if they have lived up to it. which. he is very apt to run into a confession. while doubtless felt in a dim way. have hitherto received but When little recognition as living forces in society.. Hence. except to themselves. 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.
but no one has raised the curtain upon the lawhistorical review of the profession periods. seems to and to the courts. and that he must be fair and honorable with the Court. treatment subject. one sees that the lawyer's vision have extended no further than to a contemplation of his duties to his clients. We look in vain for any adeof this quate. held to unexceptionable purity of quite well understood that to his clients is the lawyer conduct. And there are several books on the lawyer's technical duties and liabilities. beyond It is this narrow view. Besides. from remote and Sharswood has contributed a little work on Professional Ethics. the broad title of which. without stint. 5 Some the technical books have been written about of Warren published his lectures. and all phases of a lawyer's life and of his relations to his client.INTRODUCTORY. Social and Professional Duties of Attorneys and Solicitors. covering legal romance and history. yer in his full relations to society. lectures." . Forsyth's "History of Lawyers" is a most interesting obligations 1 lawyers. These duties are imperishably i"The Moral. distinctive. if it had been sustained in the text. and essays. would have covered some of the ground gone over here. have been written and published. narratives. of his calling. In all of their writings.
or book. that a large number of the lawyers are delinquents to society. not with malice prepense. a faithful picture of his real mission. The lawyers stop here in the survey of their and as there is no course of instruction. . mission. which he unconsciously imbibes before entering upon the duties of his office. and bottom of their professional they should serve their clients at all sacrifices. is not surprising. it that. but from a failure to appreciate the real and full nature of their professional duties. they believe of their calling. than to attempt to hold up to the lawyer. with a very inadequate knowledge Fundamentally.6 THE AMERICAN LAWYER. sometimes even of truth and justice. that they start out in professional life. It then will be seen. I know of no occupation more interesting. at the top career. which opens to them their full duties. They seem to be a part of the milk of his education. written upon the lawyer's mind. Accordingly.
It was then. to 7 — . in connection with a government. they at least regarded them as effeminate and inharmonious with their lives. the man of superior mind and education conBut apart from direct historical data. as it should be (but is not) now. and did not look with absolute contempt if they upon these arts. originally grew out of the superior knowledge of the lawyers. it appears. The and ing. literati. the nobles and warriors of ancient times were ignorant of reading and writing. between the State and litigants. trolled. who acted in the multiform relation of priests. In England. moralists. and honored callThis distinction.CHAPTER II. in all countries. All knowledge was locked up in the breasts of Ecclesiastics. lawyers are a necessary part of civilization. a favored There must always exist. THE GENEALOGY OF THE LAWYER. as it were. profession of the law has been at all times. and law advisers. a body of men whose business and training fit them as interpreters of law standing.
2d ed. they were to be good and virtuous and of good fame. page p. " His- 2 " History of English Law. and especially that they make no suit in a foreign country. 211 et seq. who had now become a very considerable body of men. to make sure of their qualifications. c. is made to individual disputes. The lawyers gradually segregated themselves from the ecclesiastical system. it was ordained by Stat. and by their directions their names should be put in a roll. and an independent order of their own was the consequence. . all other attorneys were to be put out." Vol. Complaint had been made of the mischiefs arising from their ignorance and want of knowledge of the law. and therefore. In England the law began to be cultivated as 1 a separate study in the thirteenth century. and such as were passed in the above manner "The Parliament began for provision i See Pollock & Maitland's Law. 422. XVIII. Hen. that all attorneys should be examined by the justices. they were to be received and sworn well and truly to serve in their offices. and if they appeared to be such." I. Regulation of attorneys was 2 made in the reign of Henry IV. Reeves puts it in this wise: to make some ordering attorneys. tory of English I. IV.8 THE AMERICAN LAWYER. see that proper application of laws. 4..
the client could not read or write. however. When the occupation of the lawyer. that his advocacy of his client's interests should overcome his independence. by their clients. of record. and so far as his individual cases were concerned it was simply hu- man nature. but the law is complex . was enacted that when qualified attor- neys died. this ordinance was also to be observed in the exchequer at the discretion of the treasurer and barons. " It was enacted. the client did not understand it.THE GENEALOGY OP THE LAWYEK. 9 were to be put in their places by their masters (sic). that if any attorney was found notoriously in default." The lawyer first appeared as a friend and adviser He worked with the latter to sift of the court. the justices might appoint others in their room. being virtuous and learned. the intimacy. and sworn as above mentioned. or ceased to act. out the truth and render justice. should diminish. and never be received to make suit in any of the king's courts. or otherwise. Now the client can both read and write. " It that is. and that his usefulness. and notwithstanding that the law was simple and contained in a few books. between himself and the court began to weaken. as a true friend of the court. he should forswear the court. so to speak. Originally. consisted in representing litigants before the courts for money.
then applied to the illegal practices of lawyers as they are now. and ambition to win. threatening with imprisonment the " serjeant countor. of affairs where individuals are compelled to repose confidence in others. as it The brakes were is in the twentieth. codes. It is a characteristic of the human mind to be faithful to a trust to be over. stand in the path of success. for the paths through adjudications. legal guide guide. passed King Edward the First's day (1275). Human nature was very much the same in the thirteenth. and a statute is cited. Fi. and law treatises. and the it. statutes. are their predominating traits. 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. the breach of it is the The lawyers are the .exception. untiring industry. delity. Inordinate zeal for clients. not the rule. century. . and all kinds of personal sacrifices in the interest of the client. are mazy and tangled. cannot pursue in all of its labyrinths. client and multifarious. to excesses in advocacy This has led them exaggeration of facts —and — often to gross which sometimes to crime. most prominent illustrations of this truth. zealousness.10 THE AMERICAN LAWYER. are powerful stimulants to human energy. and often sweep away moral and legal barriers.rather than underIn all the varieties zealous in its performance.
What this power is. The abuse . and of unlimited confidence. They all of also serve to apprise the present Bar that the evils are not characteristic of this era. and not to their clients. of power and opportunities. and when and how the confidence is bestowed. they chiefly arise out of their relation to the State. 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. is the primary sin for which the lawyers are answerable. to overstep the limits of true professional bounds. sometimes from greed or ambition.THE GENEALOGY OF THE LAWYER. generally from excess of zeal. But will be set forth in the subsequent chapters.
I and that we never can without comparing when I became an apprentice to the gathered enough. I cannot speak with complete knowledge of the It was gradually I was not of it. the old and new regime of lawyers is this: the great aim of the old lawyers was to master the elements of law. and I put the old generation of American lawyers on the farther side. they depended upon an eloquent presentation of their causes. and clearness to thought. and the new ones on this side of the line. however. to speak with some authority The fundamental difference between of the past. I thus institute a comparison which I think is happy. A PARALLEL BETWEEN THE PAST AND PRESENT LAWYERS OF THE UNITED STATES. understand anything it with something else. old generation. disappearing law. they stood nearer to 12 . I am drawing a line between the period before and after the Civil War. It is said that comparison gives definiteness well.CHAPTER III. from instruction and association.
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.
nor was its attention called to it in the points of counsel. public or private or otherwise. did not remember Now previous decision. to so dispose of it. and hence it proceeded to decide the Topits own litz case on a new line of reasoning. 17 under which property security for the pledged as collateral permits a sale. and that if. on either side. and no new or independent consideration is required to support the waiver. conversion. but the court. which leads the pledgor to believe that a forfeiture will not be insisted upon without an opportunity given him to redeem. or course of conduct on his part. he is liable for damages occasioned thereby in an action of the note. after having waived his right to a strict performance of the contract. may the vicissitudes of the doctrine of stare decisis under present conditions were powerfully displayed in the above litigations. declaration. The case of Williams was controlling upon the court. without notice. the pledgee proceeds on the note. in entire ignorance of its previous decision in the Williams case! A century ago such a precedent would hardly have passed unnoticed. the right of the pledgee is payment of a note. without notice to the pledgor. upon default in payment of be waived by agreement. B .PAST AND PRESENT LAWYERS. in the latter case of Toplitz. consisting of a different personnel.
and those States of the highest courts of the in- dividual years. the whole question apparently remains open. and the binding? Naturally. —say for of the last twenty-five illogical Such a mass bad reasoning. These views are further illustrated in reading the decisions of the Supreme Court of the United States. Now which which is of these decisions is right. I cannot afford space for others. and of the principles of jurisprudence. even by the most lynx eyed. and an ignorance or contempt of the history and spirit of the Constitution of the United States. conclusions. inasmuch as last decision.18 THE AMEEICAN LAWYER. without any knowledge of the previous one. or industrious precedent hunter. unfortunately. such a lack of knowledge of elementary law. was made and as much saved by the fortunate plaintiff in the second. Alas! for the uncertainty and instability of stare decisis. it But. and. in sufficient number to show how sensibly weakened the doctrines of stare decisis has become. . Yet thousands of dollars were lost by the unsuccessful litigant in the first case. or logically. disregard of the rule of stare decisis. and of the several States. by virtue of a multiplicity of decisions which cannot be unearthed. No doubt they are within the recollection and reach of the Bar. hardly contradictory statements. This is only one illustration.
Fisk * is a good illustration. 713. p. and judge-made law.. "jumped. By the Code of Procedure of 1 30 Hun's Rep. that it can be said of it." But I must return to my parallel. created by the interpretation of the Commerce Clause if of the Constitution. tellectual perception. undertake to enter into the extensive field of decisions.PAST AND PRESENT LAWYERS. Let anyone. as was repeated of the "Year Books" a precedent can be there found on any side. buried — thousands of feet deep under mountains of precedents. 652. It requires great courage to overrule a freshly made decision. which anyone chooses to espouse. it is because he has no inThat simple enactment. to-day. is fencing with the forms of the law. of any subject. 61. rarely can be brought to the surface. 19 can be imagined to exist. Legal practice. Y. for example. Courts are ashamed to confess that a precedent which they have made is wrong. and most of the time the real issue is buried out of sight. 113 U. that elementary principles. Legislative. has been so twisted and turned by the judicial minds which have grappled with it. and whose history is so well known to students of the American Constitution. The case of Fogg v. . and hence it is. the Civil War. have accumulated so fast and thick. since he does not emerge with a mind scratched and bleeding from the thousand thorns there existing. S„ p. as it were. aff'd 93 N.
Then he carried the cause to the Court of Appeals. in fact. He must submit to the examination. however. and those who did cared nothing about avail of a decision of the Circuit Court of the United States. New York. put himself in contempt. The defendant was at his wits' end. for the motion to transfer. that the practice of examining a defendant before trial did not prevail in the Federal Courts. that the defendant could not cut off an examination. The defendant appealed to the General Term of Supreme Court. already begun in the State Court. But the Circuit Court judge held. They transferred the cause to the Federal Court. It was granted. was to it. under certain circumstances a party to an action may examine the other party before trial. The object^ of the transfer. The defendant then refused to answer. The plaintiff applied for an order for the examination of the defendant. which in turn affirmed the original order. The affidavit that a fair trial could not be had. upon the statement that the defendant could not have a fair trial in the State Court. was not traversable under the then Act of Congress. The order was sustained. But his lawyers were equal to the emergency. by a removal to the Federal Court. sued out a habeas corpus from the . because but few knew of the existence of the case.20 THE AMERICAN LAWYER. There was not the slightest the ground.
to attain prominence? He must be sharp. every year. not. the great schemes of present times. and not one word had ever been heard of the merits! Every practicing lawyer can furnish one or more similar stories. wakeful. have almost disappeared. 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. precedent at his tongue's end. which springs up as grass." under the weight of his sins. 21 of the United States. What kind of a mental make-up must a lawyer States tice. and a knowledge of sound elementary law. holding that he escaped examination by removal. bold. even audacious. so that his clients will not be entangled in the meshes of modern legislation. and the lawyer is burdened by the incubus of form and statutes and codes. or make effective. and he must create. he must be quick of speech. and that august tribunal set him free. under which he staggers like Christian in the "Pilgrim's Progress. he must be a good business man. in the choice of remedies. with the multifarious provisions of a Code constantly at his beck. Real eloquence. to entrap the unknowing. — When possess. understanding the necessities of commercial development. hot. a fresh. it the defendant died. like .PAST AND PRESENT LAWYERS. under these conditions. clever.
22 THE AMERICAN LAWYER. and he is a better business man. A judicial inquiry into the rights of parties for "points" A means a search and forms and precedents. deliverance from them. not disadvantageous intellectually to the latter. The lawyer now boldly enters into the business end of his client's transactions he sells him prudence. the cannon loaded at the muzzle and discharged every five or ten minutes. for recourse to them. to have a happy when he cannot have none even in any other kind mental equipment. armed with different weapons. to the breechloader which automatically pours out its murderous fire every second. the flint musket to the rifle of twelve cartridges. to avail themselves of all the weapons at hand. life. and experience. the lawyers always have been ready. In point of morals. he finds of him. It is a lamenlawyer. Simply. or in natural ability. or talent. Powder has given way to dynamite. He has no less brains no less natural intelligence. As a class. to assist their clients in good or bad causes. sometimes even usurping the client's discretion and judgment. They cut a In a word. he is withal. I can discover little or no difference between the past and present lawyers. justice. small figure in his professional merits. are not sought for. comparison between the past and present is . than the lawyer of yore. — .
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
orations are abolished by rules of court. More involved the character every conceivable kind of rhetoric. faculties. Every oral argument must be boiled down. brief. to be able to stand up before his fellows and be listened to. with modExordiums and perern lawyer have succeeded. utterances of the . nating passion of all Americans to talk. The great book of human nature must ever lie open before him. when the legislatures are in session. is now heard in the United States in a week. all of its attendant glories and attractions. and poetry . to 27 and train his mental to. is languages. to the actual bone of the The practical. crisp. It is a psychological felicity that perhaps preponderTo-day it is the domiates all other ambitions. which establish the limit of legal oratory. true and false. illustrating century.in necessarily an orator. of history. than Athens or Rome listened to in a oratory. be always ready and physical resolutely and placed in his courageously. defend the causes hands.PAST AND PRESENT LAWYERS. The study literature. of metaphysics and of logic. from twenty minutes. of language. to two hours. The scenes have The age of forensic eloquence has gone. But the real orator has almost entirely disappeared from the legal stage. It has always been one of the most absorbing passions of man. shifted.
what are called legal "briefs" have expanded. professional success is In jury trials. To supply that which cannot be spoken. for juries often go astray. the results of jury trials are just. mainly — because the Bar their learning is afraid to trust everything to and industry. The distinction I well. the placing of light circumstances the a tell dramatic —these upon the jury. of the judges who are to read them. or intelligence. or to instruct an ignorant. and the graces of rhetoric are neces- sarily banished. THE AMERICAN LAWYER. Of course it counts to be able to "sum up" group quickly the facts together. in such minds of a few of the more intelligent jurors. I do not mean that wrong is perpetrated. twist capacity to all and magnify in facts. that in times past the . of from one to five hundred pages leaving nothing to the imagination. The great raise en scene effects are what bring results. or indolent judiciary. to means which a way as to catch the am trying to make clear is. attained before the addresses are made. The his skill of the the are lawyer in handling witnesses. In general. briefs are made to an ab- surd length often reaching a good-sized duodecimo. In proportion as legal oratory has been curtailed. too busy. I say in general. but not in a greater proportion than long ago.— 28 contention. who dominate and capture their fellow jurors in the jury room.
without any rage. No modern lawyer is apparently satisfied with . and began his classic. Before he addressed a jury. and yet so keen so deep. The lawyers before the war. address to the "gentlemen of the jury. he bowed gravely to the Court. glanced slowly and carefully around the court room. whether addressing a court or bar. took from his pocket a bandanna." George M. silk handkerchief. The great criminal lawyer. another way exemplified the difference between past and present. In looks and size he was not unlike Napoleon. 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. voice was pitched so that every word was heard without a loud or dissonant sound. and strong. are as different as the steam engines of then. and after many minutes of clever preliminary acting. and the copious accents of legal knowledge flowed from his lips and found lodgment in every listener. Wharton. ornate. David wore a swallowtail coat and brass buttons. a buff vest. Philadelphia. and yet so clear. also of the Philadelphia of Paul Brown. tive together.PAST AND PRESENT LAWYERS. his With a gentle and graceful gesticulation. and the lawyers of to-day. blew his nose in the true spirit of a snuff fiend. So gentle. in — jury. 29 advocates and advocacy were different. and sympathetic trousers.
too rhetoric! much business. or an hour. to tolerate Of course I do not forget the neverfailing tendency of lawyers to talk in infinitum. sharp. too many impatient jurors. for its master and to evoke clear busi- ness results from complicated conditions: crisp. he is often encouraged by an admiring client. of New York as one of the best illustrations of the modern lawyer neither an eloquent nor finished speaker. and quick. and yet having elements it) — of all of these. The judges now to clear his give an advocate hardly time throat. and. and not brains. nor profound lawyer. who acclaim it "a great speech. as circumstances classic demand. such Alas! To ex- would too be eloquence under altogether absurd.30 THE AMERICAN LAWYER. In all ages the habit to talk illimitably has ex- isted. conditions there are many cases on the calendar now. that he pect may have twenty but brusquely inform him minutes. or audience. And after "a great physi- cal" effort (as some wit has justly pronounced of voice and body. a mind practical pre-eminently ability to distinguishable details." an "eloquent presentation!" To such base uses truly have we come! I refer to Mr. half an hour. Hardly a lawyer ever believes he has . himself unless he can shout and use passionate or furious gestures. It has always been necessary to check them. classical scholar. X. what is greatest.
or by violent denunciation or inflammatory appeals. all that he has to say. functions the very head and — — . modern jury lawyer makes He bangs away at the facts anything he simply hammers into his halfhour limit. and how can you blame him for not imitating David Paul Brown? Circumstances truly alter Of course I am speaking of civil trials. 31 the the most of his time. When that mode the noblest of his front were gone. reached its zenith its Augustan Era —at — the commencement of the Civil War. as a first consequence. scientific pursuit. and it was the most august function of the lawyer. That discussion. said enough. or in a calm and seductive voice. or really oratorical effective oratory. I may add. of logic. in tones of thunder. to engage authoritatively in of controversy it. as a purely intellectual and classic. In criminal cases there is still room for real and order.PAST AND PRESENT LAWYERS. both in the courts and the legislatures. which. in its great aspects. had been kept alive by the friction between the States. or of slick and measured entreaty. He uses just those particular weapons which will catch the jurors. and. rhetoric. . was superseded by arms. regardless Still. cases. The truth is that the profession of the law. closed the era of pure constitutional discussion. It is sometimes heard. It is not to be expected that lawyers should escape the influence of a war.
successful war. Wealth has stolen his social position. The sensitiveness as to the intellectual value of high legal attainment and effort was lost with the circumstances which had made them necessary. the change set in. As opposed to these. but were split up into parts often incongruous. the Bar presented the spectacle of distinct bodies of men who. the cultivation of . who were without a local center as in England. the growing sense of empire. 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. which once made his office so illustrious in the land. every day becoming more numerous. had been shorn of their highest centralizing motive. intellectual and scholastic attainments no longer win because they are rarely found combined with a practical and adaptable mind. the creation of new sources of prosperity and power. mere fractions of many separate communities." Slowly and noiselessly as the falling tide.— 32 THE AMERICAN LAWYER. gradually and imperceptibly. until. however deserving. the lawyer has been deprived of most of those splendid qualities. Then came the influx of wealth.
agencies. — between. by "Title Searching" com- and collection and other mere business whose principal alleged merit towards the community is cheapness. and social prestige has disappeared.PAST AND PRESENT LAWYERS. influence. and position of the lawyer. in the legal profession. 33 eloquence has fallen into desuetude. however. rather than a deep and accurate knowledge of the principles of jurisprudence but always an exceptionally good — business man. but even there the old guard of lawyers is succumbing to the influences which have wrought the change elsewhere. that his aristocratic sipated. I do not mean to broadly assert that the calling of a lawyer has lost all of its honorableness. clothed in the unattractive garb of a mere commercial agent a flexible and convenient gopanies. often cultivating every kind of equivocal quality as the means of success. and the lawyer stands before the community shorn of his prestige. The change more vividly country. or that his general influence has been entirely disI affirm. are illustrated in the large cities of the In the rural districts some traces of old professional life still exist. and is disappearing behind the hills of the past like a setting sun. that his. much of his professional occupation and emoluments have been taken from him by combinations largely composed of laymen. in the char- acter. .
and out of the prolific womb of national life. which his office entitles him to wield. which the old regime possessed. and thought from our legal ancestors. has sprung up. a new legal epoch has been born. and influence. a new race of lawyers. moral and intellectual standard has been lowered. and that the natural and legitimate influence. manners. a deep exists in its proper vigor. learning. lacking the dignity. and profound gulf has been made between the past and the present. different in education. no longer Since the war.34 THE AMERICAN LAWYER. .
not only in the national characteristics. are not ushered in and morals ners. was followed by changes of the most radical nature. THE LITERATURE. THE PRESS. manners. — commercial. manof the people. that we are deeply aroused to their existence. trades. to the sound of trumpets and martial music. cannot be overlooked that the new historical era. in national life. and it is only when they are fastened upon us. AND THE BAR. but in all proIt fessions. and political No one can accurately fix the evolution. Declaration of Magna Charta Independence. THE STAGE. and noticeably 35 .CHAPTER IV. and businesses. but noiselessly and gradually grow out of prevailing conditions life. They like — cannot be traced to a certain time and place. or New epochs by written and the declarations or proclamations as polit- ical principles sometimes are. of birth of national habits. and habits of the people. in the habits. SINCE THE CIVIL WAR. social. like the parasite upon the tree. inaugurated in this country by the Civil War.
and this huge journal is placed. The avidity for news — — . As I have said. are generally sympathetic. because the throbbings of the telegraph give out every minute the news from all quarters of the globe. and Literature. in a metropolis.36 THE AMERICAN LAWYER. histrionic art. every morning. It may at least serve the purpose of an illus- tration of the changes which have come over us. quickly communicates itself to the others. but he has photographs of the prinaccompanied cipal actors in these occurrences. because a brief comparison between these last-named occupations. the Stage. the organs of public opinion. Contrasted with those of forty years ago. before and after the war. illustrated. furnishes a proper analogy and prelude to a study of the condition of the legal profession. The reader is furnished daily with not only a full statement of the doings of the whole world. and then sold for a mere song. and in general literature. the newspapers are almost unrecognizable. pictorial magazines. by graphic pictures of the events. daily all chronicling the events of the world. so in the professions of law. with of fiend- ish glee. upon the breakfast table. now huge. They are of the Bar. journalism. with more or less accuracy human and divine affairs —running the whole gamut —entering. What affects the one. like those of the body. to advert to the Press. into the minutest details of social and domestic life.
Wit and humor also abound in the press. not always Attic. and the real purpose of journalism.THE PRESS. inimitable and illimitable. becomes subordinated to the greed of the age "put money in thy purse. with the choicest morsels of the best classic writers. His genius is reflected — in the advertising columns. It is part of whatever anybody has done. humor or fancies. THE STAGE. The central aim of the newspaper proprietor. in sensational colors. The editorial has given way to the news column. or promptu productions frequently appear. and the large circulation is gained by portraying. have by no means vanished. no longer simply confined to printing news and animadverting upon public questions it is no — . Imis ravenous. THE LITERATURE. The genius and talents of the newspaper writers. if tickle the sions. in the daily and weekly press. alas. or arouse the pas- of the masses. every event calculated to attract the notice. as mere writings. 37 our business to knowis going to do. however. Advertisements are seduced from the shopkeepers and business community by a large circulation. and which will not unfavorably compare. through the advertisement columns. is to make money. which are strikingly brilliant and clever. however." The personality of the newspaper owner never appears. The most paper is is striking feature of the modern newsIts function its diversified occupation.
They furnish the sick and fever-heated needy with ice. They hunt down criminals and boldly usurp every duty of the district attorney. and espouse the rights of the public in the civil — — money for these establishes na- detective bureau. and miscellaneous bureau! — in It must be admitted. courts of is justice. not a journal! —a self -estab- lished. politi- put motion by individuals to make money. but the whole body is advised thereof.38 THE AMERICAN LAWYER. now an ties. and financial support. of philanthropic measures. 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. the left hand doeth. sporting. a bureau. literary. and perform manifold deeds of genuine benevolence. A newspaper as thus con- ducted cal. and often to advance personal and political interests. they establish summer and winter homes for the poor. magistrate. and the plans and details are blazoned . however. and policeman. and the hungry with soup." gives promotes all kinds of charieleemosynary and other public works it It — and collects vast it of it purposes awards tional landmarks it — is an intelligence office and The journals outvie with each other in their advocacy. institution —the head sums prizes of A newspaper is which is a "busi- ness manager. longer a guide and a teacher. self-supporting newspaper.
The readers. to weaken its influence with the people upon many public Its opinions and conclusions are bequestions. without great financial resources. gradually. that they are fatiguing. if not often directly invaded. and death-like headlines. 39 and "trumpet tongued" to the world. THE STAGE. THE LITERATURE. make — conspicuous parts of the paper. and eloquent a writer may be. satiated with sensationalism. I need not speak of it. and no matter how brilliant. have become so frequent. They lavish and ostentatious gifts. coming gradually less effective. talented. has been. of its departure from the real and noble purposes of the Press. The effect of the change in journalism. impossible for it is practically him to establish and maintain a newspaper. its wails and shrieks. Individual security.THE PRESS. treat the recommendations of the journals with a feeling akin to contempt. It is natural that when . And the privacy and sacredness of domestic life! It is an open book. is still felt to be held by a kind of sufferance. An immense capital is now required to conduct one of these metropolitan bureaus. 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. its utterances are looked upon with amusement or suspicion. and parading the names of the donors in out.
In going to a theater. actors. of course. the chief glories of the drama. 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. literature and poetry. talent. condemns vice weapand maintains the supremacy of the law.40 THE AMERICAN LAWYER. they must lose all moral force as leaders or teachers of public thought. satire. should be one of the most powerful organs of public opinion. The ability. The new drama is almost entirely realistic and sensational. it holds up to approbation the lives and acts of virtue. the best we can hope to see is some adlish? . In its proper sphere. or wit. genius. And who goes to the theater to study pure Eng- — — In the main. in its pristine condition. There are many exceptions. have been entirely divorced from it. The "theatrical world" also discloses radical changes. The aim of the proprietor is to catch the advertisers is —that of the advertisers to catch the public. a community discovers that newspapers discuss public questions for the pure pecuniary benefit of their owners. but even they have not wholly escaped from the prevailing influence. In a word. through the terrible ons of ridicule. and directly or indirectly. The stage. exist. and as the rule. the newspapers are transformed into advertising bureaus.
ennobling thoughts of a dramatic filled author. 41 mirably 'arranged spectacular effect. majestic. and vaudeville. fied? made and shuffling upon the stage tragedy. closely following prevailing fashions of belles-lettres. Myriads turned out upon the world. books and periodicals are yearly . he must be tricked out with the appliances of modern "art" before he can be Descending lower. Shakespeare cannot any longer stand on his own unaided merits. THE LITERATURE. covering almost every and habits. which is expected to compensate for any poverty of higher attributes in the actor or the author. or the waste-paper basket. But the theatrical manager knows the public taste. — — ful. we have to "draw. Lastly. He must "hit" that And the beautitaste between wind and water.THE PRESS. vulgar witticisms. trivial puns. comes general literature. with an ambition to do something real for his age. tossing. THE STAGE. and a senseless display of tumbling. comedy. The actor has hardly a distinctive chance to shine. Need it be speciAcrobatic feats. are frequently consigned to the flames." something in comparison with which the rudest Thespian buffoonery of the ancient time was respectable and interesting. all hopelessly mingled together which tend to convert the actors into clowns. The sensual and material tendencies of the age are nowhere more strikingly illustrated than on the stage.
nearly all of the authors of the day. and invention. or to say it in such a way that it may appear to be new. that there were congregated in an acre lot. and talk to." to be an author. When Madame Leo Hunter gave her fete champetre. judgment tempering into sobriety. and science are ransacked to furnish material which. The whole character of that notoriety profit. conceivable theme of leading human of thought. is characteristics productions the effort to say something new. geography. all of them in a morning all real authors! History. are now only incidental and very rare. To see one author in those days was a sight to be remembered. Dickens recounts with inimitable humor. but one of "knack.42 THE AMERICAN LAWYER. tortured into a thousand — shapes. insure may yield the requisite attraction to admire the ingenuity displayed in all this. but Pickwick had the felicity to mingle with. It is no longer a question of learning. and We may species of writing which so largely influences the mental habitudes may be roughly summed up . but does the merit of it rise higher? The solid basis of a classic taste. It is one of the wonders of the age to see how many men and women have devoted themselves to writing books. 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. expression. these The great.
It affects the Pulpit. and the standards they' impress. carry the tastes they form." A practical thought. and much of it is good. modern litera- . which enable newspapers and books to be published. and can only feel themselves degraded. the Press. as we have shown. at a price.THE PRESS. into thought A singular evidence of the decline of the true aesthetic faculty is the little encouragement given to Poetry of the highest order. THE LITERATURE. 43 it has many shades and is by no means confined to mere purely imaginative productions. one-half of the world of literature would disappear in the abyss of time. yet it is certain that without great poetry there can be no great poetry has undoubtedly been written in these days. The few who cherish models are so much at a discount that better ordinarily they shrink from obtruding them. and the improvement in the art of type- setting machinery. it even invades the scientific. abroad with them by the word "sensational". in view of the multiplicity of these productions. is the extremely low price literature. and. THE STAGE. Much of paper. but it has ceased to be a thing which men take to their "business and bosoms. fearing a controversy in which they cannot convince. while they toss the books aside. If the price of paper were raised to ten cents a pound. and. but degrees and many and action. fabulously low. The public yields to the fascination.
" "Behold the de- . are the great organs of which I have spoken. They are generally upon an even keel.— 44 ture say. In these days they rarely lead and make public opinions. are constantly saying: "Look at the Press —how low and degraded. if it is abnormal or diseased. so are the people. These organs They change As they are. There is very little see-sawing between the Press. The moral sense the conscience of a nation is exposed through public opinion. the Pulpit. and the owners of newspapers. political. They are usually reflective and not creative forces. they are apt to be demoralized or sick. social. they oftener follow it. and the People. Critics who assume to rise above the surface of things. Stage. They feed the public with the food they relish and give them plenty for their money. — and Literature. with the habits and thoughts of the people. is THE AMERICAN LAWYER. The barometers which reveal the moral. are their faithful representatives. and — — intellectual condition of a people. and Stage are likely to be healthy. If public conscience is healthy. 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. Press.
the Pulpit "Even not what it was demoralized. ture. for a fee incomparably lower than that charged by a considerable body of the profession. to adapt itself demands of new conditions. fashions. in the practice of the law. tastes. to search or investigate titles. THE STAGE. THE LITERATURE. and unfaithful to their true missions. and facilitate the transfers of real estate. They give the people exactly what they demand.THE PRESS. has passed from the hands of individual lawyers into lating to titles. are too clever only when the people require them to be so. intellectually and morally. morals." Later. Title companies were incor- . a few lawyers organto the ized a company. until the entire business re- known as and transfers of real estate. other companies were formed. More than thirty years ago. these companies." simply inviting the people These great organs generally hold up a faithful mirror of prevailing culcritics are But such to look at themselves. 45 praved once. who were "Conveyancers. It was as quick. unnatural. They are low and coarse." is is "The Bar." condition of the Stage. Returning to the law. was created inside of the profession itself. and habits. They and skillful to be out of tune with public conscience and taste. as the other organs of public opinion. It would seem quite if striking changes should not have crept into that profession. One of the first changes.
Nothing can betMost ter illustrate the change of the profession. and commercial operators." created to transact. The "outdoor" or office business of the lawyer has become the most profitable.46 THE AMERICAN LAWYER. solicitors. From "Attorneys and Counselors they became agents. titles porated to examine the other companies to estates. formerly performed by have at length absorbed a very large share of the lawyer's former work. and other combinations were formed to do general legal business. are often paid to . They attached themselves to all kinds of corporations. and gradually driven him into other fields of employment. practical promoters. These corporations. some of the law firms in a metropolitan city. with the change in their occupation. at Law" and professional glamour of become a business. Entering the offices of as officers and directors. individual members of the Bar. and law has colossal fees. agencies to real estate. to and trust all manage decedent and organized were collect kinds of mercantile accounts. The characteristics of the lawyers changed. these "trusts. 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. kinds of law business. legal all by wholesale. as commissions. or banking department. one imagines that he is in a commercial countingroom. or combinations.
Through the door of politics most American lawyers reach the Bench. In many transactions the lawyers are half bankers and half lawyers. The fact constitutes. if not sanctioned. one of the most demoralizing influences of the age. THE STAGE. and a fee of one hundred thousand dollars is no longer regarded with astonishment. by the young lawyers. enter created fast enough for them to politics to advertise themselves.THE PRESS. 47 them. the true mission of his profession. THE LITERATURE. and business associations are often more cultivated. but in vain. talked of. others because they cannot gain a livelihood in any other Some manner. Vehement protests are Political. One lawyer received more than a million of dollars as a contingent reward. from time to time made against it. in which no litigation is involved. criticised and yet tolerated. is to remove the lawyer far away from his technical and intellectual pursuits. and to cause him to forget. than a knowledge of jurisprudence. A vast contingent business has been inaugurated. upon the successful close of financial and business operations. The people do not seem to comprehend the . It is known. by the voters. the inevitable effect of these employments. or neglect. Of course. to change his habits. and promcannot be inence in political and the offices fill. perhaps. social. Thousands of lawyers seek livelihood life.
It lowers the respect which lawyers should have for the judges. for all of bined influence of the bar. or a proper concepLaw then becomes more tion of their duties. bar is indescribable. evils supervene. and spend their time in pulling the party ropes. is not strong enough. in character and learning. seriousness of the practice. The people are the eventual sufferers. and delays and other manifest which the people evenIts demoralizing influence upon the tually suffer. the approbation of their brethren of the bar. or indifferent. to correct an evil which destroys its own prestige and morale. their own merits. If a lawyer can obtain judicial position. It removes But all incentive to study and real ambition. supplant those of learning and fitness. nor care for. refuses to enter into a contest for the judgeship. Lawyers become schemers and office-seekers. beyond all of these things.48 THE AMERICAN LAWYER. it shows that the comor less a chance. by . The man with real accomplishments. without political influences. has no more chance to become a judge. and the race is nar- rowed down to those who are willing to proclaim most loudly. than he has to turn water into wine. They neither demand. The qualities of audacity and immodesty. because while some good men are chosen. if they do they are In general the best equipped lawyer. the majority have not the necessary accomplishments.
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. The difference between what he is.THE PRESS. is the never to be realized ideal. is as wide as the ocean. We must study both. examined. more important D issues. why should he weary his brain and mental faculties with profound or steady intellectual occupation? If he can obtain references. should he take the more rugged. the elections are general. What he should be. of a civic. THE STAGE. As it is now. or eleemosynary association. or church. I believe the evils could be largely reduced by holding separate elecThe question of the fittions for the Judiciary. what he is the always existing actual. what are regarded as. why should he not become the inseparable companion of some friendly Judge? I am endeavoring to show what a lawyer is to-day. . receiverships. ness and character of each candidate could then be. and the merits of judicial nominees are lost sight of under. and what he should be. or political club. Keeping them in open juxtaposition is the only real means to advancement and reform. and patronage by cultivating the Judges. instead of tying himself to books. In the selection of judges. uncertain why — independently. 49 attaching himself to a political organization. trying. THE LITERATURE.
without any 50 followed in law . they should be taught the real mission of the lawyer which includes profes- To — sional ethics. the nature and duties of a legislator. but above and beyond everything else. the making of a These fundamental requisites to full lawyer are almost entirely all overlooked in of the courses of education offices. AND THE CONDITIONS UNDER WHICH HE IS AUTHORIZED TO PRACTICE. they should be taught to cultivate a moral sense. judge of the quality of our lawyers. law schools. To produce lawyers who can perso he grows. THE EDUCATION OF THE LAWYER. and how. As the lawyer is trained. to know the course of studies they pursue before they are admitted to practice. AND HIS OATH. they are made. Lawyers are made up to be mere instruments for their clients. to use a commercial phrase. form their duties. the nature and duties of citizenship. and academies or colleges. it is necessary to know of what.CHAPTER V. the nature and object of law.
THE EDUCATION OF THE LAWYER. through the ordinary course of preliminary legal study. Austin. III 362. with comparative ease and rapidity. nay. Burlamaqui." 2 i ter See in this connection ChapX. . of the general principles of jurisprudence. as a system. One cannot blame the of legal study is professors. in general. Kant. A candidate. pervades and influences all legal education. where remedies are dis- 2 Austin's Lectures. knows nothing of moral philosophy. or the mission a lawyer. 1 "To the student who begins the study of English Law. Domat. he might obtain a clear conception of it. The fact is extraordinary. Neither Paley. professional — — — — and rarely at all. 51 attention being paid to their duties to the State. without some previous knowledge of the rationale of law. cussed. But it is true. of ethics. Savigny. and with a map of a body of law distinctly impressed upon his mind. incredible. or organic whole. it naturally appears an assemblage of arbitrary and unconnected rules. I mean based upon codithe sentiment of codification. Montesquieu. But if he approached it with a well-grounded knowledge. The curriculum fication. Pothier nor even Blackstone except in a fragmentary manner or any other book or course of studies calculated to impart the above fundamental knowledge is studied as part of the curriculum.
the general perplexity and confusion of the young student of English law arising from the lack of clear scientific guidance: 1 Phillips' Jurisprudence. as it arises out of the conditions of human existence. Let him once thoroughly comprehend what is to be clone. and which. Mr. but of that great system of jural problems which forms the framework of all law. In like manner.52 THE AMERICAN LAWYER. Phillips in his able and independent discussion of Jurisprudence says: 1 "I firmly believe that the intolerable aridity. in his own vigorous and graphic language. and the inquiry how it has been done will become an easy one. embodying the authority of Prof. before he comprehends What every jurist has first to its outlines. . not of the law do. 27. to itself. which may be pernicious and must be imperfect. Let him once clearly perceive how these questions have become necessary and how they are connected with each other. 26." Let one more quotation. is entirely due to the infatuation with which the student usually persists in exploring the details of his science. is make himself master. and he will have little difficulty in understanding and criticising the various solutions of which they are capable. must retain its importance while the human race survives. Sheldon Amos. usually attributed to legal study. describe.
the reckless verbiage of those who have studied just law enough to confuse the spontaneous workings of their conscience.THE EDUCATION OF THE LAWYER. may in He draws near. the dreary register of meaningless variety. He knows not where he is going. he is often enough regaled with nothing more satisfactory than a story of incessant change. is in search of. Professor Munroe Smith. more indestructible than anything he can find in Text Books of English Law. 53 "It cannot be surprising." he says. But it is subordi- "Elements of Law. or a systematic exhibition of what is universal and everlasting. and for want of time inadequately appreciated." and the "History of European Law " are given by a glad to say. and yet who affect just sensitiveness enough of conscience to interfere with their unflinching interpreta1 tion of a single law. "if the young English student approaches the Science of Jurisprudence with somewhat of a quivering heart and trembling gait. i before admission. " He hears of 'Jurisprudence' and he has a is He thirsts dim hope. page 508. however. or wanting to go. and is not quite sure whether he where. anyfor something broader. Systematic View of the Science of Jurisprudence. or in the successive modifications in the substance of law itself." "Modern nate and collateral. and place of a science. that in the course of instruction of the Columbian University lectures upon the very competent person. deeper. the loose guesses of politicians and moralists. that what he perchance be there." A candidate for the Bar must. going. . I am Civil Law.
relation which lawyers bear Government. may have a good character. by a certificate from third persons. is subjected to desultory examinations. and the American people. grammar. at this time. and possess certain moral and educational qualifications. applicant must pass an examination before an examining board of lawyers. and yet know nothing of the ethics and mission of the profession. The general educational qualifications are ordinary. The student attends a course of lectures. be a citizen of the State in which he applies to He must be practice. A smattering of history. 1 Let it suffice that it is entirely inadequate to produce a lawyer. that the candidate A man is a fit person to be admitted to the Bar. the examination for admission to the Bar. Chap. is superficial. of legal age. to criticise in detail the curriculum. for two or three years. and of the United States. Moral character means. as intimated. skims through a few legal works. X. produce a certifi- cate from a law school or college. or. the and Latin. The applicant is only required to have been an apprentice. Besides these requisites. which are the sine qua non to admission everywhere. geography. It is Considering the to this unnecessary. an ability to show. .54 THE AMERICAN LAWYER. crams himself for a final "quiz" i See Post. in some States.
instructors or professors have any practical knowledge of the profession. and the sole aim is to carry it safely through the final examination. one can put a log of wood in a machine. — — bloc. 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. they look astonishment. They know almost nothing of the real office. like around in brought into professional new-born babes. withal. and it comes out a box of matches. students. By a patented process. out in their professional journey with a keen sense of their own incompetency. When they first see the light of the pro- fessional world. Lawyers are machine made. They are intelligent enough many of them savants and remarkably bright men. they . therefore. and he is a lawyer.THE EDUCATION OF THE LAWYER. The preliminary education which they have received does not carry them beyond the point of their examination. but each of them has a large class of students on his hands. start Young lawyers. moreover. and generally. and when they embark into actual professional work. and mission of the lawyer. 55 before the Examiners of the Court. They are theorists and They have no clinical experience. and lawyers are manufactured en titioner. The aim of law schools and colleges is to manuHardly any of the facture the lawyers quickly.
While any person may set himself up as a car- penter. 5. and duties of the office. The student must first obtain a license from the court.. agent. and on whatever 1 scale. is XXIV. banker. Eliz. in his relation to the court and the community. little have —certainly no adequate —idea of the functions. in after the first daye of Maie next not bee lawful Misterye Arte or Occupacon. powers. to set uppe use or exercise anye Crafte Misterye or Occupacon. for obvious reasons. for it shall worchman at this daye any pson or psons. hereafter referred to. is necessary). nor to set anye person or woorck in suche the least as Apprentice. has at all times been to place limited restrictions upon admissions to the Bar. by Manuell Oocupacon. authoritie that maner and fourme aforesaid. baker. being not a tice as coming.56 THE AMERICAN LAWYER. 4 (1562-63). as follows: Stat. which they have been licensed to hold. 1 This was not always the law. he desires. as evidenced first by rules of the court. nowe used or occupied within the Realm of Englande or Wales. in any place. the policy of the law. where a certificate. any occupation were required to serve an persons practicing apprenticeship. orels having served as an Apprentice as ys . or broker. based upon an oath. other than such as doo now lawfully use or exercise any Arte Misterye or except he shall have been Appren- ys aforesaid. or pursue any other legal occupation (except that of medicine. Chap. Except he shall have been brought uppe therein Seaven Yeares at occupie "And the be it further enacted aforesaid. and afterwards by statute. tailor. This at once gives the lawyer an official position. for anciently. as will be seen by all the Statute which I quote. Sec. No duly certified applicant can practice the profession of law without such a license.
THE EDUCATION OF THE LAWYER. stands out distinctly and separately distinguished from other trades and occupations. clear. and to advocate their own causes a privilege of which. and this term is rarely. The courts accordingly mark out of the qualifications these officials —their own officers. and justly — they rarely avail themselves. The court." it is generally in connection with some effort to punish him for a dereliction of duty. if ever. viz: to signify that he aforesaid. are authorized to represent themselves. He starts on his professional officer of career marked is as an official —an the court. upon payne that willingly shall forfeit and lose for every for default fourtye Shillinges every monethe. The profession of the lawyer." acting under the supervision and control of the latter. he is now and he became. viz: the lawyer was regarded as the origin of this of the court. when a lawyer is styled "an officer of the court. and the reason for it is as strong to-day as when the office was first created. or bee hired by the Yere. In these days. used in its original and just sense. shall or will become a Journeyman." offending or dooing the contrary . Litigants 57 who might otherwise complain. suitors. with marked good sense. therefore. "an officer of the friend. the adviser. the associate. as styled (but for different purposes than those for which the distinction was first applied to him).
can be readily imagined. Indeed. culture. Addison is authority for a story that when Innocent the Eleventh desired the Marquis of Carpio. aid. or five concerned. the effect of which. to furnish him with 30. an officer to advise. so much as to hold him at arm's length —to treat him as one ready and willing to accept. Undoubtedly they can always be called upon to assist and aid the court. Still. rights to which he is not entitled. upon the manners. that no restrictions are placed upon the number of lawyers who may practice the profession. Still.58 is THE AMERICAN LAWYER. and assist the court in the administration of justice. in every community. if not actually seeking. but if his . the ten- dency of the courts -everywhere is not to regard the lawyer as an arm of the court. the public seems to be indifferent whether there hundred thousand lawyers. Another feature of the subject is. They may be said to always rest under the command of the court.000 head of swine. the lawyers are officers of the court. in existence. they that the profession is full to repletion. are not any more numerous than they were at one time in Naples. bountifully The lawyers have increased to such proportion. and esprit de corps of the profession. or five hundred. the Marquis answered him that for his swine he could not spare them. is So far as any demonstrated policy are five. This liberality has been appreciated.
The fact that social or political influence.000 lawyers. with natural. turn their professional labors and merchandise system. These corporations have. The enormous increase in the number of corporations has been an into a regular business or partnerships. lacking the ability. in a corporate position. is as bad for the latter. They both suffer. unlimited blessing to a certain class of lawyers. 59 Holiness had occasion for 30. in a few years seek other employments. 1 The Marquis must have of turning out hordes of had a large estate! Of course. have ever been made. as for society. p. still others. the effect legal incompetents. with more fortunate brethren.THE EDUCATION OF THE LAWYEK. otherwise unequipped. or suppositions drawn. to perform the work ships. No statistics. or knowledge. I believe. 2. he had them at his service. through the influence of nepotism. furnished a delightful haven to many a lawyer. . or practical ability. 429. many of them eke out a meager and starving existence by filling clerk- and other subordinate positions. educational. has frequently sole incentive to his adoption of the legal profession. their intrusted to them. Hundreds of lawyers. finding nothing to do. as to the i number of law- " Remarks on Italy." Vol. and various by associations other kinds of occupations. could secure him a snug been the berth.
all go to swell the ranks. the profession will be filled to repletion. which offers inducements there are now for individuals to become members of the Bar. My purpose at present is only to draw attention to the effect of all this on the lives community. language of political economy. As long as a course of study exists. prentices were fully convinced that to become a lawyer meant serious study and application. and access made easy. another book . except by ordaining such rigid preliminary studies and qualifications as would act as a If candidates enrolling as legal apdeterrent. or perhaps could. to encounter the steep and stony paths that lead to genuine success. of course. to the very class who are least qualified. As to its personal effect upon the and fortunes of the aspirants.60 THE AMERICAN LAWYER. but it is generally agreed that vastly too many for such service. Young ambition. yers necessarily required to transact the business of the country. There are other concurring causes. No limit should. so that the gates are thrown wide open. with a mere smattering of intellectual training. in the supply very largely exceeds the demand. mistaken notions of the true nature of the profession. the pride and vanity of parents and friends. when they have passed through to admission. the that. ever be placed upon the number of lawyers entitled to practice. there would be fewer candidates.
THE EDUCATION OF THE LAWYER. The census shows that in 1850 there were 23. It is 61 enough to say that no miseries are greater than those which follow the mistaken choice of a profession. and the table compiled from the same source shows the following result in ensuing decades: Year .939 practicing lawyers in the United States. might be written.
the lawyer's duties to the government are of equal. is The sphere and to or confined. cannot be presumed to comprehend any of the principal branches of the law. But. or in conjunca privilege very fretion with his law practice quently availed of. but I think to the discredit — — of the profession. he frequently appears in courts outside of his State. and to turn upon the community hordes of incompetent practitioners lowers the standard of the profession. It may be said on the other side. of the lawyer's operations is limited. deprives of of some the Bar of the learning and respect which are so . a if he be admitted matter of comity. who fight and struggle along many years before they attain the full confidence of clients. undertaking either separately. importance than those which he owes his clients. if not of greater. to the State in which he admitted. as a rule. them. although. that nobody is injured by this ignorance. that any lawyer who has simply passed through the formal system of study prescribed. and who has been licensed to practice. because litigants do not.62 THE AMERICAN LAWYER. he only acquires a smattering dition of the law. the Federal Courts. as I shall show. At best. own In the present inflated and complicated conit goes by the mere saying. as therein. employ young lawyers.
is quickly ascertained and understood. meeting with the same quality in those who are delegated to examine. can be in equally shown to by the work accomplished previous examination.THE EDUCATION OF THE LAWYEE. This oath throws some light upon the lawyer's real functions and duties. in this respect they may be considered one and the same interest) are entitled to some better guarantee. with their results. A professional morale the student. . in the individual may overcome all diffiit culties. that the student's real education begins after admission. it is vain to say that the evil corrects itself. applicants and examining boards standing on exactly the same level. the results become obvious. Great talent and strong bias. and nullifies the influence which naturally possesses in private and public affairs. The forms which are given below practically illustrate those of all of the States. and of England and France. but these. The oath which the lawyer takes before entering upon his official career is slightly different in each of the States. but where the tendency of the whole system is to produce a class of in- competents. The profession and the community alike (indeed. towards the profession. 63 necessary to enable it to defend and exercise its proper position. with such an initiative.
(or affirm. and that I will support the Constitution of the United States. do solemnly swear be) that I will (or affirm. as the case may demean myself. 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. United States Supreme Court. . . I. according to the best my ability. . I. Pennsylvania. uprightly and according to law. nor delay any person's cause learning and ability. New I. England. York. as an attorney and counselor of this Court. that you will use no falsehood. and that I will faithof fully discharge the duties of the office of attorney and counselor-at-law.64 the american lawyer. You do swear Constitution of (or affirm) that you will support the Constitution of the United States and the this Commonwealth. do swear that I will truly and honestly demean myself in the practice of a So- . as well to the for lucre or malice. Court as to the client . according to the best of your and with all good fidelity. and that you will behave yourself in the office of Attorney within this Court.
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.
is the beginning of legal proceedings. if not totally destroyed. fact. or cause to be issued. he is an officer of very great authority and power. the whole proceeding utterly without merit. is the fountain head from whose source all of client. or in A lawyer. as a supernumerary of the court. or by whatever name the original process may be In called. or the most influenIf the tial citizen or corporation. in law. date. the most powerful magnate. New York the lawyer issues the original man- His name. He is the sole officer authorized to cause a civil action to be begun. veriest tyro in admitted. signed to a summons. the action unjustified. 69 While. yet the defendant must obey. the he is the day after . the lawyer's vocation has been enfeebled. writ. apart from this fact. — — lawyer approves the client's demand. 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. he can issue.NATURE OF LAWYER'S VOCATION. At the instance cial He he becomes the offiauthor and creator of all judicial proceedings. process which will bring into court the proudest millionaire. — commands the appearance in court of the highest or lowliest individual in the land. a legal processes flow. The lawyer's mandate the summons. The demand may be unfounded.
have caused untold mischief and damage. may in which character. through his negligence or design. suit is and expense are involved. it its machinery . or judgof government.70 THE AMERICAN LAWYER. or rests dormant until some one sets self-acting. all suits are begun or defended. His ordinary mistakes of law. or judgment. ment of the lawyer. the Courts computed by consulting the records of which show the number of suits — finally dismissed. cannot be made the basis of a legal demand against him. yet the lawyer dismissed sits. demands of a professional it blackmailer. serenely. without a right. tittle of justice or the profession may. easily. summon the worthiest and purest indi- vidual to answer the be. and although after years. is forsooth. can be." and one whose authority is hardly exceeded by that of any other official. An individual who possesses powers like those which I have described. Inquiring into the origin of the lawyer's power. The law is not automatic. an "officer. in his office. secure from liability. we find that it arises from the necessities of politi- cal organization. How many of such mistakes are made. exempted from acts which often. the as unfounded. property. how many causeless actions are instituted. known to any system Upon the ipse dixit. of litigation.
of certain principles. "thou shalt or thou These rules may be. as applied to political existence. in motion. and often are. When we ascertain the reason and philosophy of the subject. we begin to appreciate the full scope of the lawyer's powers. —the criminal and the is civil. . a Law to his working. enunciated by the supreme It says to its subjects power for (as of the State. violated both by individuals and communities. a law is a mere brutum fulmen. but until somebody complains. it is When a crime committed. and manifold civil rights are invaded where the party injured seeks no redress from the courts. stract. theft escapes notice if no prosecutor appears. regarded as an act aimed at the entire community. it con- being of God is sists of declarations. who put in motion the machinery of the law. Blackstone puts it). or rules. and so ." lawyers. 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. human government. Now." In the concrete. the official and authorized agents.NATURE OF LAWYER'S VOCATION. that given by Hooker. that which doth appoint the form and measure of working. Murder goes unpunished if it is concealed. The law is naturally separated into two great systems. are the shalt not do this or that thing.
these orderly machinery of the law must exist. the of the multiplicity of interlocutory and inter- vening orders and proceedings. by the service upon the delinquent. 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. soon as its existence is known. of the State.72 THE AMERICAN LAWYER. viz: the summons which brings the parties before the court. which are met with in ordinary legal and equitable actions." does not only mean commencement of a suit. It strikes at the But when a civil injury is inflicted or property. this — — . constables. and all laration. before a final judicial settlement of their rights is reached. the appeal. such as policemen. the lawyers intervene upon person and set the machinery of the law in motion. Wherever justice is administered. start the wheels of justice which bring the offender to punishment. magistrates. a hearing and a decision. the execution. or dec- answer or plea. the trial. A crime inflicts a blow upon the whole autonomy people. a judgment and execution. a complaint and an answer. parts of a suit. coroners. the issue. sworn officials. the complaint. which litigants pass through. the judgment. The "machinery of the law. sheriffs. There always must be a complainant and a defendant. and district attorneys.
and delicate mechanism. fast or slow. is reguThey study lated and watched by the lawyers. which run after they are set in motion. 73 fol- Even in a barbaric state. conduct. but without the necessary appendages for enforcing them. all of the intricate they arrange the movements. are coeval with the administration of justice. and. the law of quate remedy to the parties injured. hearing.NATURE OF LAWYER'S VOCATION. therefore. of Now. unless by a relapse to methods purely Without the ability to give an adearbitrary. The orderly parts of a suit. are necessary and substantial parts of practical jurisprudence. declaring rules for human and directing their observance. if the that machinery is properly and regularly run. these forms are lowed. though in a primitive and summary way. exact justice between litigants. so they operate harmoniously together. Hence these orderly steps in a suit. they are absolutely essential to the correct determination of legal controversies. . after a fair would be nothing but a series insipid declarations. the law simply would be a bundle of abstract principles. and although they are called the "forms" of the law. every motion the wheels of form. and without them. In a civilized community these forms nicely are and delicately adjusted to each other. and they are designed and intended to produce as a whole.
in his relation to Law. The clients disappear. until the real concontrol. is may be the work of Upon law the lawyer's advice and judgment. The legal which is had under a Code. He is a kind of judge preliminarily He is — inquiring into his client's rights and duties. and whole course of the law. and his office assumes an importance which superficial inquiry would not ascribe to it. very great. is amazing. primarily charged to determine. they learn to direct. troversy is lost sight of. with their motions and counter motions. in a cloud of technical sparring and conflicts. the his use the word "Subject" advisedly.74 like skillful THE AMERICAN LAWYER. the fencing. in advance. and the lawyers come to the front. The moral responsibility of the lawyer becomes. therefore. no matter how small or great the amount. however much own creation. The foregoing suggestions introduce the lawyer in his first great official relation to the community standing between the Subject and the — I Law. Directly the machinery is set in motion by the lawyer. as it exactly describing the citizen. workmen. the put in motion. the suit becomes one of public concern. whether his client has a just claim or defense. when one remembers that Courts exist to render speedy and exact justice. . between the institution of a suit and a Judgment.
or the evasion or denial of a legal claim. For. involved. exaggeration and doubt. It rests prudence. eventu- forms of the law are involved and the public are taxed for the general expenses of the courts. all the 75 A judge. or indifference. He poisons the founand contempt tain of justice at its source. therefore. suits. largely and sincerely blended with contempt. to separate the chaff of fraud.a NATURE OF LAWYER'S VOCATION. from the wheat action. to the effects of his he advises the commencement an un- just suit. In the commencement of need. Law is "humbug" — . The importance of the whole subject to the lay community is apparent from this purely material aspect of it. degree of moral reprobation attaches to their In the ordinary judgments of men. to the less latter it brings a shallow reputation for clever- ness. and patriotism. if from ignorance. in the settlement. learning. or jury. the lawyer has of honesty. or principle. fulfill to the former. and a greater or its forms. is the law and lawyers that suffer most. of dishonesty. Client and counsel become involved in a common atmosphere of suspicion. a sense of its in adequacy to its ordained purposes. he defeats the objects of the law. of fact and truth. ally appears. it actions. with him to preserve the purity of the legal system. he prostitutes and brings its administration into disrepute. and the evil effects are felt all through the body of the law.
76 THE AMEEICAN LAWYER. in all of their duties and functions. true objects. and defraud the law. mere game the office. It is hard to detect him. of lawyer a cunning scamp. deflect the course of justice. but they are made in the name of the His education. all his knowledge of the scope and influence of his profession. in a litigation. not of paramount importance that individuals who are clothed with such extensive powers. pleas. should be fully instructed. the defenses. he is representing another's interest. are powerfully illustrated. and express statute. his training. And both public policy. except that he is better protected. and the lawyer's tracks and identity are swaUowed up in the personality of the former. The lawyer's opportunities for good and for evil. not essentially different from other scamps. in each and every step. passed in professional counsel. and more to be feared. Sheltered in the garb of his The client. prohibit him from uttering one word. before they are permitted to Is it exercise them? Picture the baleful influence upon the law and . are brought into play. insidiously and secretly. client. the pretenses of the the lawyer's are frequently own work. and is not responsible for his client's morals or frauds. the lawyer can always. chicane.
and defame. and chicanery. only to defeat and evade the legislative will and public policy. and such talent as they may possess. who pays most for the service. in the middle rank. prostituting the forms of justice for gain. diverting and stopping the machinery of the law. The formation of the Northern Securities Company under the laws of New Jersey. resorting to to gain their end! Do such lawyers exist? Do such practices prevail? Unfortunately. and every device of cunning and deceit. clothed with so much power. is a good illustration of one phase of the subject. in the lowest rank of the profession.NATURE OF LAWYER'S VOCATION. only to open a door for others to avoid the consequence of the civil law. experience. only to show their clients how to cheat. I do not undertake rests . selling their knowledge. of lawyers. can be found many lawyers whose services are sought only to enable guilty men to escape punishment. trickery. and objects of their profession. and of their contracts. with not ennobled. A great upon the financial moral responsibility promoters of that Company. In the first rank. 77 society. ignorant of the principles of law. badly educated. minds not elevated. yes. ability. vilify. by liberal of the scope and study or association! Picture the lawyers training themselves in a school of dishonesty. defraud. without penalty or to the client damage.
S. not a penny's worth of property involved was located there. Yet they perseoverthrown by the vered. to evade Statutes. The promoters sought to thwart the laws those States. not a dollar of actual business was to be transacted there. embraced in that scheme. moreover. U. The promoters were. and State and Federal 1 i U. through the ingenuity of their lawyers. Joint Traffic 211.. v. 290. by going to the State of New Jersey. S. or ignorance of public officials. Not an individual of really interested in the affair resided in New Jersey. primarily. was a clear attempt to evade the laws of the States through which the roads ran. 175 U. S. The Anti.. neglect. Assn. blamable in this matfor they took their chances. S. v. Freight v. TJ. ter. 505. until their acts were Supreme Court of the United States. 166 Pipe S. hoping.trust law of the United States stared them in the face in earnest protest against their acts. and organizing there. . and others not necessary Assn. under the shallow pretense that the Northern Securities a mere holding Company. there were several clear decisions of the Supreme Court of the United States. Addyston to quote. and against the general public policy. measure or partition it. which showed them that their work was illegal.78 to THE AMERICAN LAWYER. S. U. A consolidation of the railroads. Company was and sentiment of the country. 171 U. or the slothfulness. & Steel Co..
through majority shareher corporation . speculators. on the part of the Government I do not — — it was inadequately presented by design from it but. to the cunning of the lawyers in an effort to public policy. protect promoters. If the Northern Securities Company had been upheld as a legal corporation. not involved in a mere technical discussion. themselves.— NATURE OF LAWYER'S VOCATION. and although this judgment was only ratified in the Supreme Court of the United States by four votes against three thus giving some pretense. has been craftily de- signed and built up. say far — Examine its charter for confirmation of this result. The State coffers have been enriched by are it. 79 The decision of the four Judges in the lower court was unanimous against the Northern Securities Company. to cheat the general public policy of the country. corporations. or color. as would have enslaved the finances and commerce of the country. vital aspects of the question. it meant the placing of such untold power. to the original scheme yet this dissension would have been avoided. holders. stand as a shameful monument. The statutes of New Jersey. and each year new features to added to its corporation laws. in the hands of the promoters of the company. and New Jersey. if the case had been thoroughly presented. policy. in favor of resist National and State Almost every law of that State. were overlooked.
overcomes the judgment and minds of the courts or juries. art. as distinguished from the counselor. an asylum. Public opinion is always on the alert. for justification. away from the public gaze his machinations are in the dark. His opportunities for accomplishing evil. he acts in the under the public gaze. open — persuasion. In the case of the counselor. to which the lawyers can resort.80 law. and by exposing and protesting. in the court. experience. and judge-made. however. or sophistry. law. The business of the former is carried on in his office. and general sentiment of the community. to those cases where. of all kinds — of practices. but himself. in the advice which he gives his client. it is the attorney. who can and does work the greater harm to the community. herself made Finally. and are insidious and secret. is a perpetual asylum. have sought refuge from the public policy of the law. and accumulation of statute. Shrouded in unlimited discretion. are accordingly limited. he. by skill." The confused and contradictory condition. where rich and influential men. how wantonly he is violating his duty. against unjust and illegal methods or results. unjustly. It lies in his power always to say. "1 was mistaken in the law or practice. has THE AMERICAN LAWYER. no one need know. it .
The work of the attorney must. He acts as a breakwater between the attorney and the court. grow and strengthen. 81 acts as a counterpoise to the meretricious influ- ences of the dishonest advocate. with which they may be practiced. they bury themselves within themselves. attorney would no longer be allowed to or defend. and thus blindly invite a sometimes very rude form of resurrection. necessarily. as a corrective. The names them. and when the time comes. that all abuses inhering in any body of men. "Attorney and F . who. represent practically one office. and necessarily would become abortive by the refusal of an independent coun- selor to present Counselor" are although they still preserved in this country. his own cases in court. where there are solicitors and barristers. pass through the hands of an independent counselor. from the feeling of immunity from danger. many dishonest.NATURE OF LAWYER'S VOCATION. One of the profoundest and most powerful reasons for divorcing the two branches of the profession arises from the above considerations. A litigant would be thus compelled to cross two The barriers before he could reach the court. It is to be remembered. they are presented to the court. Insensible or scornful of extraneous opinion. sits in judgment upon the facts and law before so to speak. or illegal claims. prosecute.
He is also constantly called upon to exercise the best qualities of trained diplomacy. free scope to his best is given endowments. wisdom. and eloquence. By virtue of his official character as attorney and counselor. the mouthpiece of his client in court. As popularly understood. to be settled in court. As it is counsel.82 Here. the word implies. the lawyer draws to himself a multitude of other employments. experience. lawyer is both an attorney and counselor. his learning. in the negotiations attending the settlement of difficult questions. in becoming generally understood. He is employed as agent. at every step. but. . and. the THE AMERICAN LAWYER. second. —where of he acts judges. therefore. not strictly of a technical nature that is. whose excited passions. he acts in a more limited. directly under the influence the In both relations. in the best interest of parties. which do not grow — out of misunderstandings. or contests. as a higher capacity. as a purely advisory relation to his client. the attorney's practice comprehends all the business of the lawthe precincts of the yer. genius. have to be considered. transacted outside of court. in First. as attorney in fact.
A large share of this part of the lawyer's has been gradually usurped by corporations. 46. His knowledge. 1 tensive field of employment. removed from in his The lawyer appears everywhere. control. are constantly drawn upon by in his clients. The confidence thus reposed is guarded. and is often consulted when the thoughts of the latter are in a chrysalis state. not only by the moral etiquette of the profession. administrator. as I have shown.NATURE OF LAWYER'S VOCATION. ters. cleverness. judgment. and skill. trustee. who generally repose their lawyers in busi- the utmost faith and confidence. It constitutes the most sacred part of the lawyer's functions. and there is all hardly an event of any magnitude in commercial affairs. in which his co-operation and counsel are not solicited. but by positive statutory rules. and he becomes an important factor in moulding his client's final judgment. ness. 83 and in a thou- sand and one other fiduciary relations. an exbusiness. p. and other private and the trusted adviser and friend delicate mat- of his client. executor. . and. and stages of business transactions. That it shall continue in its integrity i is an im- Ante. experience. He is family. however. which the ramifications and necessities of business create.
. by vulgar and indiscriminate abuse of the character and functions of the lawyer as such. and it society.84 portant in THE AMEEICAN LAWYER. that it behooves should not assist breaking it down. for its own sake. interest of society.
Easily. most of is them engaged 85 and the Congress of the United States . they were the chief authors of the Constitution of the United States. THE LAWYER'S POLITICAL EMPLOYMENT AS A LEGISLATOR. the natural and necessary the guardians of it. is that of a legislator. As I have said. which a lawyer holds to the community.— CHAPTER VII. outside of his technical occupation. and of all the State Consti- tutions. From the commencement of the government. the lawyers have absolutely dominated in the Federal and State Legislatures. useless and incoherent Statutes. of the lawyer's relation to the community. In the analysis. therefore. They are it. The forty-five State legislative mills (another has been since added to the list) are constantly grinding out Statutes. it becomes of parainterpreters of mount importance functions of to consider the duty and a legislator. THE DUTIES OF A LEGISLATOR. AND IN OTHER CAPACITIES. the most interesting relation.
is applicable to constitutional. that the responsibility for all of this unnecessary accumulation of Statutes rests somewhere. the lawyers. in this connection.— 86 in THE AMERICAN LAWYER. the laws. millions each year. in the second place. mark cial. and criminal. He must understand the origin and purpose . To remedy these anomalous conditions. This state of affairs produces two principal results: first. Primarily. it is necessary that we should have legislators who understand their functions. many. enormous expense amounting to many. What. Laws have accumu- with such rapidity. The related. it must be charged to the individuals who make . to make justice a thing of doubt and chance. it entails upon liti- gants and the Federal and State Governments. he should know the relation which a citizen bears to the State of which he is a — member. the same occupation. practically. —the legislators. then. as well as all of the branches of the law. commerother. The subject requires separate treatment. and. it creates such uncertainty in the law as. I can only say. are the duties of a legislator? What are the qualifications which he should necessarily possess? Primarily. that the jurisprudence of the United States is in a condition approaching inextricable confusion and doubt.
relinquished his natural condition and liberty. in the effort of the mind. it. in fact. and transfer his allegiance to another State. at all. So deeply has this view been rooted. For. comfort. when a person is born into the world. but he can never enjoy natural or absolute liberty age. natural liberty has ceased to exist — perhaps. and happiness. without any choice or consent of his own He may afterwards expatriate himself. to conceive a condition of natural unrestrained liberty. — THE DUTIES OF A LEGISLATOE. wherever he is born. of society ical 87 of the principles which underlie politgovernments Federal State Municipal Looking back into a period before society was organized. never did exist. he eo instanti. he can never divest himself entirely of civic homfor. he more or but voluntarily. practically. briefly. in the human mind and experience. or wherever he .. was and own protection. is the supposed origin of human government. in organized association with This. 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. his fellow and sought refuge men. consciously. and. that. one is remitted to an age of poetry and myths. becomes a subject of some government.
" Or. the legislator must go back to the supposed origin of the social compact." in reply. I will protect you and your family and your property. is an between the sovereignty and the individual. we can appreciate that most admirable definition of civil or political liberty. his says. as Burke says. In a word. by which the former grants protection. "In return for the abdication of your natural rights and freedom. withal. and. The citizen says. as is necessary to protect you. in substance. notwithstanding this fact. This original social compact is very important. Apart from the impossibility of tracing the origin of Society. every babe is born into the world with a political halter around its neck. agree that there implied contract self to become a part all of the State — — I will support the State in emergencies. But. because this forms the proper and only true basis of legislative operations. he is always amenable to some government. very simple.88 THE AMERICAN LAWYER. and your fellow citizens. and I will only restrain so much of your natural liberty. by Lieber: "The natural liberty of mankind so far restrained by human laws as is necessary for the good of society. . "I will give up my natural liberty I will bind my- writers all. substantially. may roam." Hence. and the latter gives allegiance. The State rights are his advantages.
Government exists for the people. Hence a legislator must keep constantly before him the origin and purpose of the social compact. the citizen liberty. A multiplicity of laws does not produce good government. It introduces confusion and uncertainty. that country The is best governed which is least governed. He must ask himself. and his fellow men's. laws are to be passed except those necesthe subject's protection. in all normal and sound conditions of society. compatible with the interests and protecIn fine. individuals evade and escape from the operation of laws. unequivocal (not speculati-ve. not partial) benesary for fit No or advantage. or distinct. for his own. "Is this proposed law necessary? Is it just? Is it for the true interests of . on the contrary. to make as few laws as possible for. not the people .THE DUTIES OF A. annuls and destroys its efficacy. except so to enjoy all of his natural as restraint is far necessary. Here is the secret —the corner stone — of all legislation. but. tion of the other members of society. 89 as is "Only necessary so far restrained for by human law of the good is society!" Conse- quently. The fundamental idea is> to leave the citizen with as as is much natural liberty. protection. LEGISLATOR. and wherever these elements exist. for the Government.
Livre I. laboureurs. elles en ont avec leur origine. au climat glace. unnecessarily. . a leurs inclinations. a leurs manieres. 1799. A. or the greater portion of them? passing it. the mischief involved." Vol. a sa grandeur. p. brulant. a sa situation. L'Esprit Des Lois. and its relation to the others and the whole. the people." To answer. au genre de vie des peuples. and whether the constitutes new or proposed law remedy. a la qualite du terrain. avec l'ordre des choses sur lesquelles elles sont establies. c'est dans toutes ces vues qu'il faut les considerer. these questions. 1. a la religion des habitants. a leur commerce. By shall I take away. What learning what experience—what industry. a lawyer requires who would faithfully adequate an — i"De ed. ou tempore. a leurs moeurs. avec 1' object du legislates. elles doi- vent se rapporter au degre de liberte que la constitution peut souffrir. any : portion of the natural liberty of the subject?" As Montesquieu says "Elles doivent etre relative au physique du pays. elles ont des rapports entre elles. a study of each great leading industry and interest. Chap. 1799. a leur nombre. a leurs richesses. it — is not always involves a knowledge of the existing institutions and laws. Enfin. chasseurs ou pasteurs. 106. an easy task or decide. Ill. Basle.* 90 THE AMERICAN LAWYER.
25. the utility." And if this dictum be thought too broad. how many thousands of books and statutes which now encumber the shelves of the Law Libraries. fulfill their real duties. how deficient the modern legislator is! How few there are of legislators in the Federal. fulfill 91 the duties of a legislator! And contrasted with this standard. good or bad. How many- which now confuse and perplex the lawyers. 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. springs from the Bar. or State Legislatures. the legislator must — 1 — — » " Sharswood's Legal Ethics." p. exigencies of society or situation." Having satisfied himself of the necessity. would have been avoided. who under- stand and laws. 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. and judges. que sera-ce d'un grand legislateur. yet with every abatement that can be made. would have never existed if these fundamental. .THE DUTIES OF A LEGISLATOR. but simple. He would acknowledge that legislation. popular demand. the justness of the law. the field of the lawyer's action is still enormous.
with the Federal and State Constitutions. if a new law be proposed. the principle. precision. 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. compact above and of all the other considerations If an amendment to bearing upon the subject. que c'est un tres grand hasard si celles d'une nation peuvent convenir a une autre.92 THE AMERICAN LAWYER." Livre I. Loi. Another important feature of an American legislator is. then prepare Here he has need of the greatest skill. To sum up: legislator ness. 1826. propres pp. it. to be covered by the legislation? Simplicity. what words shall be selected to express accurately and the thought." Montesquieu. that he must compare all proposed laws. must here be observed. Chap. and knowledge. 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. brevity. Why is it that the most profound lawyers shrink from drawing statutes? Because there is no task so delicate and difficult. "DeL'Esprit Des Lois. perfect clearness. This involves an accurate knowledge of these instruments. the facts. Ill. . an existing law be proposed. the its just- must determine its necessity. experience. ed. en tant qu'elle gouverne tous les peuple de la i " La " Elles doivent 6tre tellement raison terre. humaine. he must know the in the light of the social 1 described. en general. 135.
1862. the mischief. Bohmer Haffen. v. is void. a large number of cases which show how constantly the courts have been occupied. 390. 48 N. language. old law. Y. 35 N. alone. Chap. 459. 1 1. of the Constitution of 1846. all ute books and piles up our law books mountain high. 302. and a bond given pursuant to the act to release a vessel detained by virtue of an attachment issued there- of under. and he be able to put the proposed legislation into clear. 1 work of declaring Statutes unconstitutional. 59 N. The People ex rel. Y. and unconstitutional legislation. tion of a railway risania. 482. 1862. and unequivocal must. and is void. without judicial process." "An act to authorize the construc9. L. unmistakable. L. of chapter 217 of laws of 1866. since 1862. in the State of in the New York. — Act unconstitutional v. Chap. I cite. Y. 93 and the remedy. Chap. below. finally. Nearing. — Eockwell 2. or repairs made upon a vessel engaged in foreign commerce. 217. and tracks in the towns of West Farms and Morin part. 57. of article 6.— The act of 1862 providing for the collection demands against vessels. 361. v. Unconstitutional so far as it authorizes the seizure and sale. Chap. Kermit. is the cause of the unwise. Poole 3.THE DUTIES OF A LEGISLATOR. is unconstitutional. L. 1866. 4. Sec. voluminous. Bull. unnecessary. is in conflict with section 18. which now fills our stat- The failure to observe these rules.— Section 1. of animals found trespassing within a private inclosure. 1863. L. 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. v. 161 N. so far as it gives a lien for supplies furnished to. 554. . Y.
74 N. 9). a void subscription to capital stock of railroad unconstitutional. to a like effect. 1869. Yan Horn. 10. 7) declaring that the compensation for property taken for public use shall be ascertained by a jury or by commis- — In re Vil. 8.. Laws of imposing an assessment for a local improvement without notice to. Tit. not exceeding $10. v. 217. Opening up further The provision of said act (See. 4. is violative of the constitutional provision (Art. Sec. 404. 473. Amended by Chap. 42 jST. and a hearing. — People ex rel. has the effect to deprive him of his property without due process of law and is unconstituL. 4) providing that on 5. Sec. 2. 619. Chas. sioners. school fund. for the pur- — . People Allen.94 THE AMERICAN LAWYER. Y. — An act of the legislature appropriating moneys from common is the capital of the astronomical observatory. 82 N\ Y. Sec. 1870. to the establishment of an in violation of the Constitution (article and void. as the said commissioners should certify to be necessary for the completion of the bridge. R. of 1870 in relation to the city of Albany prescribing that. 1. —A — N. 196. Y. Lee. 7. Co. Y. When one adds to this record. Stuart v. 9. 43 N. L. Middletown. H. on the part of the owner of the property to be assessed. 1. A law tional. 183. Y. L. the list becomes appalling. 57 N. and in the Federal Courts. Palmer. 1869. 1868. R. 1870. Chap. Chap. 7. Provided that the supervisors of the counties of Erie 6. is unconstitutional and void. v. Chap. etc. appeal from the award of commissioners. The Board of Supervisors of the County of Chautauqua. the aggregate adjudications. L. 84. 77. or an opportunity to be heard. the court may increase or diminish the compensation. of the Courts of all the States of the Union. v. The provision of the act 10. Sec. 1866. Y. L. & O. statute attempting to validate L. M.000. and Chautauqua should assess upon their respective counties a moiety of such further sum. 1868.
Chap. Chap. L. V. 34 N. See Horton v. as amended from award of jury of dam- ages for street opening on giving bond for costs) invalid— as taking witbout process.— Amendment to L.. 714. Y. Chap. Chap. 1878. 1871. sonal rights and due process of law. and proceedings taken thereunder void. Board. L. Chap. v. Y. void as infringing perS. Chap. prescribing qualifications for a jury to assess damages for as such a jury is not that required by Constreet opening invalid — stitution. L. 66 (right of appeal 694 (Village Act). People 12. v. into the history of the enactment and repeal of unnecessary statutes. —Legislature has no power to impose debt Thompson. the common council shall nominate twelve freeholders whose names. Menges 11. Chap. is unconstitutional. 1870. 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. v. City of Watertown v. p. 56 N. as amended by L. 291. 1870. from whence are to be drawn three. on town without consent. etc. 942. 1869. void. People 13. 75. p. 14. by L. T.— — THE DUTIES OF A LEGISLATOR. 151 1ST. Jason Fairbanks. 513. 65 N. 71 N. 1870. T. Y. City of Albany. as the section itself. Chap. Titlb7. 365. p. . Town of 15. 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. 1871. 291. Title 7. on separate ballots. 809. 1894. 374. are to be placed in a box. who shall be appointed commissioners. 622. Warren. 2. Sec. so far as it relates to the confirmation of assessments. 95 investigation. 151 N.— employ alien. was unconstitutional and 588. L. 59. etc. L. 75. Board. 694. as Crime for People city contractor to amended by L.. 694. v. 1893. 810. Chap.
People ex rel. 1874. Pboc. Sec. Y. 452. which by its terms discharges the city of Yonkers. Sec. a joint contractor shall not be discharged upon his death. Otis. 204.— The provision of the act of 1880 (Sec. 758. 60 N. 856. C. 90 IS". Chap. 66 is unconstitutional and void. 711. Pboc.— The provision of the act of 1873 authorizing the taking of lands for the purpose of such an association. — 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. 93 N. 17. Chap. was a pastime. erty without process. L. 1873. and judicial conflict! " Justinian's task in reforming the Roman Law. does not affect contracts — made prior to ST. one of the greatest undertakings of ancient history. Bennett. Assn. by proceeding in invitum. 1879. 4. Sec. and so it impairs the obligation of after contracts. Y. is unconstitutional. as depriving of lib- for refusal to answer controller's questions. Randall 19. L. Code Civ. 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. In re Grout. Y. 1880. and thereupon giving the latter exclusive jurisdiction thereof. Manhattan Savings Institution. 4.96 lation THE AMERICAN LAWYER. L. L. 77 Y.. In re D. 1876. v. and an order made by the Superior Court for the purpose of making such a transfer was void. 569. 48. Alexander v. Y. its passage. Chap. as the effect thereof is to destroy the negotiable quality of the bonds. 545. Providing that estate of 18. Sackett. upon delivery by it to said institution of duplicate bonds. compared to the herculean labor which is devolved upon the lawyers of the twentieth century. L. 16. Code Civ. 20. 59. — Committal for contempt void. v. 480. N. S. .
681. 410. sold on execution. Act prohibiting Turnpike Co. Chap. to a party who has been illegally deprived of his property. L. Code Civ. 677. 346. Petrea. Co. L. 190. for any cause. Tucker..— THE DUTIES OF A LEGISLATOR. People v. 107 N. 128. S. Pkoc. W. was unconstitutional and void. therefore. (Sec. — 21. As applicable to such a road. Sec. relating to title to real property 24. 92 N. confirmed by the court. Chap. — Purporting to amend the provision of the Code of Civil Procedure (Sec. 637. L. etc. 1440). Y. L. 1881. to acquire title to lands by proceedings in invitum. Chap. 1881. 128 N. 3. v. Co. Y.. from charging toll for bicycles held unconstitutional as taking of property without due process of law. — Rochester & C. Y. Joel. In re N. 1041) in regard to the selection and drawing of jurors in the city and county of Albany. Laws of 1881). B. therefore. 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. 1882. unconstitutional and void. K. 25) exempting from the operation of said provisions bills so reported. Dist. Y. and so not within the exception (Art. L. Assuming the said act not to have been reported by the commissioners appointed by law to revise the statutes. Chap. 96 N.— The provision of the New York Consolidation Act which declares that no compensation shall be al- G . Y." is unconstitutional — and invalid. the provision of the act of 1880 in reference to underground street railways. as amended in 1881 (Chap.— The provision of the act of 1881 purport23. Gilman v. 532. Chap. 1882. access to the constitutional courts of the State for relief. & M. 22. 25. In re Eureka Basin. K. " may be taken in lieu of the consent of said authorities. ing to authorize the E. 42. declaring that the determination of commissioners. Sec. 92. The legislature has no power to deny. as to grand jurors. 42. 582. 26. 1880. Turnpike Eoad Co. 58 N. Y. the said act is.
Y. by the Act tional. 577. L. L. L.— Code Civ. 1885. in certain cases. Foster v. 98 N. Y. 672). 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. Sec. and not fraudulently conducted. and so is unconstitutional. 99 N. Pleas from appointing Yutte. it is. 98. Chap. Parmenter v. Y. Pboc. Y. Y. 135 N. — A legislative enactment which 28. In this respect. Chap. or cream — . Laws of 1885. Popflnger In order to sustain an indictment under 31. 30. public health. 183. a clerk as a referee is un- constitutional. Court of Common v. The act entitled " An act to improve the 29. The State of N. is unconstitutional. from a period without limitation to a few months after the passage of the act. does not give such reasonable time. 377. a higher term than even Suppose the Bar would seriously statesman. Chap. 202. 1884.. solely for the it competes with another. 90." etc. 458. 154. 136 N. Laws of 1885). not injurious to the — reason that community. L. and may reduce the price of an v.98 THE AMERICAN LAWYER. 1884. Chap. in some aspects. 7. 38. 1885. by prohibiting the manufacture of cigars and preparation of tobacco in any form in tenement houses. Scott.. L. Y. and so is unconstitu(Sec. article of food. amended by chap. Chap. ment as enables him to comprehend the wants and necessities of his fellow men. prohibiting the manufacture or sale of any article " not produced from unadulterated milk. 60. 1884. so far as it prohibits its In re Jacobs. 4. 27. absolutely prohibits an important branch of industry. is — unconstitutional. 183. 272. A statute cutting down the right to commence an action upon a cause of action then existing. 102 N. People Marx. the provision of the act of 1885 (Sec.
as so much of the provision is unconstitutional. L. Laws of 1874). Chap." it must be made to appear that the article manufactured was. T. from the same. who did not sub- stantially fulfill these requirements. is un- Cromwell v. 688. Levy v. MacLean. made under 474. (Sec. and for the winding up of its affairs by suit brought by the attorney general. 691. Y. 335a. 691. 1886. 627. and the appointment of a receiver therein. Substitution of indemnitor in action against sheriff. 310. Chap.— The provision of the act of 1887 confirming sales of land for the nonpayment of taxes theretofore made under the act of 1874. 32.— The acts of 1886 providing. Unconstitutionality of Mandatory Provision." which is " People v. Chap. void because constitutional. 271 and Chap. Dunn. People v.THE DUTIES OF A LEGISLATOR. 160 N. are unconstitutional and void. T. O'Brien. 1887. a void assessment. ployee not to join labor organizations. made in imitation or semblance of butter. L. Section 1421. amended in 1887. 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. Y. Y. 171a. authorizing sales of lands for unpaid taxes in the county of Westchester (Chap. T. 1. 504. 1887. Chap. 97 N. 103 N. Penal Code Sec. by the use of ingredients. compelling em35. L. 388. Code of Civil Pbocedtjbe. 123 N. a misdemeanor. Marcus. 322. 34. the manufacture of an article simply "designed to take the place of butter " is not an offense. as deprivation of equal protection of laws. S. 257. so far as it seeks to validate a sale. 1887. in case of such a dissolution for the taking away from the company of its street franchises. 111 N. 610. Laws — The provision of the Penal Code of 1887) prohibiting the sale or disposal of . — People v. added by Chap. L. void. 33. 185 N. not necessary or essential to the article itself. throw its 99 whole influence to prevent the election of individuals to the Legislature. 36. Arensburg.
S. Equitable. 871. 43 N. 1889. Sec. Constitution. 258. sale has been paid into court or deposited People ex rel i>. Chap. 3. 59.— Amended by L.100 THE AMERICAN LAWYER. Charter of Schenectady. 400 (Insurance Law 1892. 1582. L. Sec. 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. Laws of 1889) authorizing the Special Term. premium or reward to the purchaser.t. how are they to be made available in a system like ours? These are the real questions. 109 N. who became such power to Greel v. 1890. 500. L. or . Chap. prize. T. Gillson. 400. is unconstitutional and void. Y. 57 N". 56). an action for partition. Chap. (Sec. is void as taking without process. Bronk v. as in v.— Prohibiting work by convict for sale is invalid as to contracts made prior to Constitution. S. 124 N. 389. Ap. 38. "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. City. 1893. 164 N. 29. Y. The Provision op the Code of Civil Procedure 39. void. People 37. Barckley. 39. 190.my offer or attempt to do so upon any representation or inducement that anything else will be delivered as a gift. as to policy holder act. 1890. 294. amended by Chap. Withany article of food. Y. 382. L. Sec. Y. requiring assessment for street paving to be apportioned according to foot frontage. Chap. Kyder. .— Providing that no one but Attorney General shall proceed against insurance company. 40. Conde v. movement? How are they to be But where would they find them? known? When found and known.
L. is void under Const.— THE DUTIES OP A LEGISLATOR. Windholz. 110. 56 N. People 48. Y. 1892. and to be performed in the latter. Y. void. fish v. S. — Misdemeanor to possess during certain seasons and inflicting penalty. Harden. Sec. 1892. Hargreaves 46. in the recognized legislative assemblies. Hilton. — Conferring upon women the right to vote unconstitutional. 56 N. L. People 44. 090. Board of Supervisors. Chap. to drafted men by taxation. L. St.. — Unconstitutionality of act for payments N". do not always appear. 41. etc. S. 62 N. 996. 431. 1892. 14. 58 N. 101 out an intentional impeachment of the form of democratic government. 467. Sec. it is nevertheless true. West. 112. Chap. unconstitutional as not providing . 664. L. 1015. 42.— Prohibiting suits by foreign corporations without a certificate. v. 50. as denying equal protection of laws. L. 159 Bush v. Y. 112. S. Y. 214. 338. as taking without due process. Y. void. insuring property within former State. void as to imported fish. 1893. S. Chap. Fire Ins. and that cider vinegar made by State farms shall not be deemed such.. 376. Chap. Sec. Chap. Amend. that prototypes of the best class of legislators. Mat.. 45. Mass. U. 543. 1892. Chap. 47. v. 141 N. Chap. 687. S. v. L. Y. 15. People 43. Secs. Buffalo. — A statute making void a contract entered made the by a citizen of one State with a corporation of another. into v.— As to committal of female in- ebriates without judicial trial. 488. 1892. — Authorizing construction of a cremator for destruction of garbage. 8. L. as taking without process. L. for school commissioners is In re Gage. Agricultural Law. defining adulterated vinegar. 212. S. 1892. Chap. 937. Saviours San. 1143. 1893. 2. 86 N. Y. void as discriminating. Co.
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.
1899. Tax. L. 80. legislative to other fields. S.— That laborers on public works be paid prevailing rate of wages. In re Fallon. Y. 346. 1899. L. 849. 52 App. ing prevailing rate of wages to municipal employees void as to claim of workman employed prior to repealing statute. S. Laws op 1899. unconstitutional. is — unconstitutional. 358.— Code. 567. . etc. invalid. 192. Chap. 54 N. In re Straus (Sup. as against due process. 58 N. 162 N. 700. 1. v. Y. 61 Y.. L. pay the expenses of a person who has been indicted within its boundaries for a criminal offense in connection with his official dushall ties. 415. Repealing all prior statutes as to secur83. People v. 1899. Y. 502. 735. Chap. 13. Y. Chap. Y. 171 N. list. 32. by which a company's earnings are reduced 25%. 370. Matter of Pell. Mosher. 76. v. Providing that municipal corporations L. L. S. Coler. An amendatory act passed in 1898 to the Turnpike Act (L. People 81. tax upon remainders or reversions vesting prior to June unconstitutional. — Rochester 79. Chap. Sec. void. Y. 869. Chap. providing for committal of witness before commissioner of foreign court. 1899. L. as impairing obligation of a contract. L. 51 N. S. 1898. 1899. 1847. 1897. Leubischer. v. 210).—Imposing transfer 30. Chap.). 920. Balcom v. 1899. Y. The eye cannot be opened upon any department 78. Chaps. 567. 48. 59 3ST. — — McCann 84. as takiug away liberty of free contract. 1ST. of the official world. highest on People ex 82.106 THE AMERICAN LAWYER. void. rel. L. — Statute requiring appointment of person — Chap. City. S. 166 N. Turning from we find that the lawyers occupy almost the entire horizon. 37. Joel. 1885.
Chap. 1897. Chap. T. v. Good- Ooodsell. Y. void. as amended by L. Caminez.. void. 377. 1900. and. 1900. Sec. 128. 534. Biesecker. 742 in so far as it affects prior judgments for. as depriving county of a vested right. Sup. . 70 N. People 87. although a judgment had been given in favor of county in action by bank. naturally.— THE DUTIES OF A LEGISLATOR. Sec. State. S. proand second class persons offering real property for sale without written authority from vendor or vendee. recovery of moneys paid by vendee. S. 166 N. 1900. and they swarm everywhere. — Providing that a county should pay a bank its defaulting treasurer's overdraft. prohibiting sale of butter or cheese containing a preservative. 27. 83 N. 79 911. void. etc. Dempsey. 77 N. Terry. Penal Code Sec. 510. Y. T. Chap. Judgment for alimony constitutes property of wife L. 1900. v. guilty of misdemeanor. boiling of garbage. 466. They. 762. —Agricultural Law. S. 1900. — Prohibiting amended by New York v. L. 94 N. Grossman App. unconstituof — — tional. L. T. S. 614. as L. as taking without process. v. Whiteley v. T. Livingston. 418. as taking without process. 1212. or Municipal governments. Amending Chabteb N. 107 of the Federal. in default. which she cannot be deprived without due process of law Ohap. L. —Amending viding that in cities of the first Cody v. 78 N. 85. 1067. Haefelein v. Chap. void. 15. 68 N. 476.— Providing for sale by auction by vendor. Livingston sell v. Chap. 173 N. void as to sales prior to its passage. Contra. L. 899. Jacob. 806. engross all of the judicial offices. v. 81 N. 1900. 1901. Y. in the legislative and executive branches of the government. 86. without encountering them. 640d. Div. as not proper exercise of police power. T. 89. L. 485. Niagara. S. 90. Y. Department. T. Greene 88.
Y. as taking without due process. 76 N. employment. 1901. laws. L. void. Art. Chap. 112. 1901. In re Cook. 1). from the lawyer notions of the principles of government. p. 1367. void. banks Chap. Seo. Code Civ. they hear from him the reasons for new. 1901. 640. 1896. S. 1902. Y.— Relief as to lost certificates of deposit. 1902. L. L. MacMullen v. 1560. 1902. 808. void. S. In re Commonwealth. void so far as retroactive. 1897. Y. 241.— For canceling of license certificate unless holder files an answer denying violation. 95. 224. amended by L. L. void. 639. . criminal procedure in Pennsylvania. City. compelled to attend. sec. 97. In re Cullman. S. S. 1901. as amended by L. Chap. 378. S. from engaging People in ticket Preventing any than common carriers brokerage business. Caldwell. 145. Chap. Chap. void. city pensioners to bold city Chap.— 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. City. but for no part of 1901. Young v. as 1. 96. Y. People 92. 83 93. T. Sec. 410. 90 N.— Citizen of N. void. 168 N. Chap. as depriving of liberty without process. of Woodbury. giving salary to Alderman.— Providing that Act April 25. 22.108 THE AMERICAN LAWYER. 451. process. S. 1894. Pboc. Act Jan. on subpoena. Y. Y. 81 N. L. Y. as taking without — v. 92 ST. 94. L. 1899. 503. JF. — Forbidding v. 77 N. S. 1901. and the motives for Individuals imbibe alterations of old. as impairing a vested right. Chap. 100. they readily accept his 91. Y. 98 N. 567. 469. 618. 94. against abridgment of citizens' privileges (Const. 671. as taking away right of action altogether. as amended by L.
— As amended profits of judgment passage. People ex 103. rel. void.— Commutation for good behavior only allowed to convict committed on definite sentence. special execution against income or its Proc. 1 v. 97 N. 194. 227.THE DUTIES OF A LEGISLATOR. L. 348. 539. Chap. 149. 88 N. 1902. by L. the people fit of incalculable bene- De Tocqueville. 461. property. prohibiting use of United States and State Flags for advertisement. L. debtor. as to trusts created before Sloane 1094. L. S. — 99. Van De Code Carr. — Booth Co. unconstitutional in part. Y. Civ. S. Providing that buildings within 500 feet of hydrant may be assessed although water not used. Vol. in preserving order. .'' p. 1903. " 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. acter. S. 101. L. 1902. 100. L. 16. void. Chap. Y. v. Chap. Chap. 1902. 1897. void. 86 N. 137. as taking without process. 414. L. Johnson. 1903. Prohibiting possession in close season of trout taken outside the State. Sec. — People v. Warehouseman may refuse to deliver goods to holder of receipt when another claims them. as taking without process. 1903. 230. Sec. I. 425. 591. S. Chap. 272. 93 N. Chap. People u. and that he shall not be made defendant in action unless he claims interest. 141. 134. as infringing liberty and property rights. Sec. 640. King Irving. Subd. T.— Amending Penal Code. 1903.. 92 N. void. Chap. 608. and as beyond police power. 1391. S. void. Y. McPike v. 1 when not of a purely partisan char- In times of excitement. S. Y. 178 N. 109 technical explanations of the causes and effects of legislation. as to offenses committed prior to its passage. Tiffany. Y. Village of Canaseraga v. 102. 90 N. Green. 272. when public resent98. amended by L.
Y. Code Civ. v. void. 108. Y. 1905. 107. (May 26. Proposed amendment of charter of a corporation. as taking without process. S. his devotion to existing rules and forms.. or passion is ment aroused. 793. S. 173. requiring courts in certain districts to arbi- trarily regulate preference of causes. and the forms and rules of the law. S. Chap. S. 1904. as L. 697. all combine to make him a power of great impor104. 106. Proc. amended by L. 95 N. — Regulating trading stamps. 655. Star Co. Chap. Y. the lawyer's influence ought to be great. Chap. 253. 1853. 1904. the list is York. 173. void. pause here. organizing the Equitable Life Assurance Co. as taking without process. — McMillan v. Sec. — People ex 105. to print There are some thirty-five additional acts declared unconstitutional in the State of New me them. His trained habits of thought. 94 N. aff'd. Space will not permit already nauseatingly long. 531. 1904. Klaw. Y. S. rel. 90 N.) special deputy commissioner to revoke liquor tax license issued prior to passage. T. 497. L. Zimmerman.— As L. O'Brien. Municipal ordinance allowing projections beyond building line. Y. as depriving judiciary of right to regulate the hearing by the circumstances of each case. void.— Authorizing taking without process. 657.. Riglanders. Privilege of witness provided for by Section 342 of the Penal Code not coextensive with that afforded by constitutional provision. L. 1904.110 THE AMERICAN LAWYER. his respect for the law. Chap. 365. . 96 N. Lewisohn v. void. 1905. — Lord 109. 772 . Chap. as outside police power. 181 N. void. He becomes a breakwater between the passions of excited citizens. Equitable. 463. Y. People L. Flynn. v. changing method of electing directorate. 176 N. besides. 65. About 1904. 92 N. People I v.
: THE DUTIES OP A LEGISLATOR. and They have the same training. in his social sphere." all. justice. in the choice of their representatives in the legislature. as they are often caUed upon to do. tance. As the sumed maxim still prevails that every man is to know the law. As a voluntary instructor. pre- law- yer. they instinctively act together in defense fundamental principles of liberty. to be ultimate sovereign. 54. 1 Legal Ethics. and above formation of that public opinion be said in these times almost without a figure. of and trained oracles body of calm. upon the most important changes in the Constitution. his advice and judgment are received without suspicion or reserve. Judge Sharswood * says "It is its office (the Bar) to diffuse sound principles among the people. they religion. intelligent. and of judgment in deciding. becomes one this of great impor- without reserve among all classes. of Without premeditated or concerted action. in Ill these dangerous emergencies. that they may intelligently exercise the controlling power placed in their hands. mingling The influence. in the which may The characteristics of the lawyers are identical everywhere. is always in proportion to the respect with which they are held by the of the law. as a free and voluntary promulgator of tance. community. p. the occupation of a it. .
and the general similarity of their habits of thought instinctively institutions. so far as the gov* De Tocqueville asserts ernment of the United States is concerned. in the broadest sense. to de- are taught to observe form termine questions by certain fixed principles. converts them into fixed principles. The " Democracy America. the members of the legal profession will be found at the head of all political parties. or even very great in Parliamentary debate. but then. to respect and preserve prec- edents and existing to guard sacredly the rights of persons and property. based upon the fundamental maxims of social and political right. 1 special mission. is like Sir but in that different. where a pure lawyer has been a great leader in the House of Commons. This is undoubtedly true. he was not a "pure" lawyer.112 THE AMERICAN LAWYER. as opposed to temporary and frothy declamation. But in England. and order. act as an organized body never. shifts — champions of makeYet they rarely in a truly political sense. that. of whatsoever form they may be." p. Mansfield was noted in his time. in all "free" governments." no such exclusive privilege exists. 350. which is certainly "free. Perhaps Brougham comes nearest to it. . I cannot recall an instance. of which he was writing. Some have been great there when charged with a Samuel Romilly.
comparison between the English and American Statesmen and orators. constructionists —to —professional. when best administered. the instincts. by that instrument. and American politicians must study it. it seems that their political inspirations. The interpretation of a written Constitution. and training of the lawyers fit and adapt them for political life. — pions of justice. which. furnishes a most striking picture of the difference between the two governments. brings into public tech- a large body of lawyers nical. education. from which most of our political history takes its life A origin. 113 truth seems to be that the influence of the law- when not strictly official. Except in rare cases. H . in the aspect in which I am here considering them. means the highest state of civilization. ex necessitate rei. has been of the subtle kind advocates and chamyers in England. on the other hand. to political education and advancement. the substantial ex- clusion of the lay element of the community. The Constitution of the United States becomes the guide for most of our internal politics. as the sine qua non. and ideas. In the United States.THE DUTIES OF A LEGISLATOE. are limited and circumEven the tariff scribed. and from the beginning of the government they have almost exclusively occupied the leadership of political parties.
Chatham. in the administration of all branches of the governments. therefore. Chesterfield. legislation has Constitution. whereas in England. when Sir John Eliot delivered his speech in the House of Commons. and the orations of Walpole. down to the present time. have been inaugurated and inspired by pure and technical constitutional lawyers. and political students. been challenged. and in life he has been a factor of the greatest importance. lawyer's influence public and private . Canning. Sheridan.114 THE AMERICAN LAWYER. Fox. the great speeches have been almost universally made by trained statesmen. on the petition of rights. Pitt. most of the greatest political acts. however. as models of British eloquence. as contrary to the In the United States. as early as 1628. wisdom and In both countries. the sphere of the has been unlimited. Burke. and efforts of eloquence. and Gladstone and others are carefully studied.
it gen- 115 . I use the word "obligations" in a general and somewhat arbitrary sense. social relations. sketched the system is under which the lawyer tations educated. should be. I have heretofore. in damages. the "duties" of an infirst dividual. ascertain the nature of his obligations. political and which prepares me to advance a step further in the inquiry. or of a class. liabilities. it is their "duties. briefly. the nature of and his professional. it is necessary that all of the obligations should be defined and understood. unnecessary to dilate at any length upon this aspect of the subject.CHAPTER VIII. by considering the "obligations" of lawyers before discharge of his duty. THE OBLIGATIONS OF A LAWYER. At the same time. As this is not an essay upon the ignorant. ascertained. and to endeavor to his vocation. the limi- upon his right to practice. perhaps. for a faithless. or negligent technical liabilities of a lawyer to his client. I also reverse the natural and logical order of the subject. and duties." Logically. because when a "duty" exists.
constitute the most important attribute of the law- am yer's office. nevertheless. and punished . those acts for which he cannot be proceeded against criminally. These being ascertained and disposed of. I then in a position to deal with the "duties" of a lawyer to the community. deof the Courts have.116 erally carries THE AMERICAN LAWYER. with it a corresponding "obligation. or liabilities. expressly or impliedly. and have adcivil. all I mean to inall those of an enforceable character. enforced in civil or criminal tribunals. or orders "obligations" in which the statutes. but first. as they do. and the courts. They are his technical legal "obligations" to his client. or perhaps never can be. largely in foro conscientice. second. existing. cisions. defined the relations of the lawyers to their clients. There are three classes of these obligations: those arising out of acts of professional misconduct. which never have been. acting without the aid of juries." and the violation of an "obligation" involves or I creates a "liability. judged their violation to create criminal." The obligations which am now to speak of are well understood by the lawyers. but which. By clude those "obligations" of a lawyer. for which he may be disciplined by the courts. for which he is liable to criminal punishment.
For instance. by imprisonment. Some of these acts fall under all three heads.. others under two. 73. Sec. Sec. New York.THE OBLIGATIONS OF A LAWYER. those for which he fine. third. In these two enactments. 2 Code. is 2 guilty of a misdemeanor. a lawyer in may be criminally punished. the court or a treble of -party. in addition to forfeiting is damages to the party deceived. his license may be revoked. with the intent. for deceit or misconduct. there may be no damages accrue from his acts. but only in damages to his clients. and he may damages to his offended client for his acts in one transaction. That is to say. he be may yet. 1 guilty So an attorney buying a a misdemeanor. the neglect of are generally entails a criminal liability. he may not be liable to criminal punishment. etc. and for the purpose of bringing an action thereon. Or. . with intent to deceive by statute. Or. in the State of an attorney or counselor who is guilty of any deceit or collusion. or thing in action. the policy of the law i Code. or consents to any deceit or collusion. 70. and still others under one. bond. may be held liable to the party injured in pecuniary damages. liable have his license revoked. 117 or the cancellation or sus- pension of his license to practice. and. and to the revocation of his license. The which fixed first class of obligations.
and collusion always is very subtly arranged. deceit or collusion. sions of attorneys. in . Such acts comprehend. or the cancellation or suspension of his license to practice. so effectually. The second class of the lawyer's obligations. Deceit lurks in the heart. that cult to detect them. with intent is to deceive the Court. a question of depending upon the peculiar circumstances of each case. in the boundless region of professional discretion. can hide his tracks. against deceits or colluof of plainly pronounced. or license. yet to the credit of the Bar. and plainly revealed by acts. of any kind. fine. or a party. an inactive one. for the violation of which he may be disciplined by the courts. with the purpose bringing suits thereon. These are difficult offenses to prove. unnecessary to cite know them. and against the practice buying claims. it is diffi- But the is first of the Statutes to which It is I have alluded a very important law. and it is only when the fraudulent intent is brought to the surface. that the law can be applied.118 is THE AMERICAN LAWYER. any more statutes of a penal nature. young and old. A lawyer who deliberately sits down to concoct or commit a fraud. duty. however. deserves more than a passing notice. and the lawyers. They are spread upon the Penal and Civil Codes. and punished by imprisonment. What constitutes fact.
but they exist almost wholly in judicial discretion in the conscience — of the courts. or be- tween themselves. to a standard of morals. ments. disobedience or These obligations are not generally defined by statutes. everything which a lawyer does. or omits to do. for they embrace all acts of bad faith. a proof that They their morale at some was fixed at a level and in some way. with their presumed attaintime. and moral misconduct. a principle of universal jurisprudence. 119 general. above and not below the average. in dealings with their clients.THE OBLIGATIONS OF A LAWYER. or rules of court. are held. or of the court. or in fraud or deceit of. and corresponding to their opportunities. or of in any contumelious conduct contempt of the latter. and with the court. their in the case of lawyers. and obedience. respect. in their dealings with their clients. of fiduciary agents. therefore. to summary punishment. that many acts which would not subject any other class. in violation of his duty towards. have been held It is sufficient to justify the infliction of severe penalties. must observe the strictest rules of honor. fidelity. that lawyers in their dealings with their clients. The Bar seems to comprehend these offenses by a species of intuition. . It is important to note. his client. of the lawyers.
120 THE AMERICAN LAWYER. Indeed. that he is an officer. by imprisonment. that when a lawyer's conduct comes to be questioned. fine. power over these legal agents. disingenuous. now exists more in theory than in practice. This extraordinary power of the courts. is put by judges on the ground that lawyers are officers of the court. this always lost sight of. the discipline is so severe. when a member of the profession incurs censure. to question the plenary power of the courts. to punish lawyers. he is under a positive . judge him without mercy or stint. and will soon disappear from sight. deceitful. the courts. The is spectacle of a lawyer acting amicus curice now altogether novel. and almost arbitrary. Although the original ground upon which it is placed. they must exercise a plenary. clinging to the old theory. one has ever successfully attempted. and that to inspire and maintain a respect for the law. the power law. or contemptuous. summarily. to punish or discipline the lawyers. summary. is Popularly. when his professional conduct becomes the subject of judicial review. without a trial to discipline is unquestionable. for any act which they adjudge fraudulent. or to deprive No them of their licenses to practice and conviction by jury. as I have more than once intimated. However.
It is not the exception. to witness the spectacle of a lawyer. It speaks volumes. for the fidelity of a lawyer and his interests. is not large. and through him of society. for the lawyer to surrender his whole mental. The one saving attribute for the lawyer." no risk is incurred to the lawyer's morale by its exercise. There are no sacrifices which he will not make. to advance the success of his employment. from the sensitiveness which the judges display to maintain a high standard of professional conduct. when compared with breaches of trust by other fiduciary agents. But the number this of cases second class of obligations. is fidelity to the client. at the instance of a client. and to his client ennobles whatever limitations it touches. which arise under it must be said to the honor and credit of the profession everywhere. 121 disadvantage. which I recur 1 to when its discussing his "duties. and it is not a common sight. and no dangers that he will not incur. and ad- vantages are incalculable. intellec- and physical power to his client's cause. Subject to the hereafter. Fidelity is the saving salt of human nature. i Post. . 124. tual. but the rule. p.THE OBLIGATIONS OF A LAWYER. (especially one of any character or prominence) arraigned in court.
and legal limits. The lawyer is bound to exercise honesty. As I have said. Little. at the instance of his client. The third class of the lawyer's obligations. in light upon the duties Men do their efforts for success. which throws of a lawyer to the State. not often publicly complain of the overzealousness of their servants. for the violation of which he can be little made liable to is the party injured. or disputes as to strict compensation. and his failure to do so subjects him to the ordinary action for damages. in the management of all business committed to his hands. in rules all of which instances. can be found. and the clients are silent. and when such cases arise. they do not arraign them for extra fidelity to their interests.122 THE AMERICAN LAWYER. in pecuniary damages. the above referred to are enforced. The illustrations of this general principle are . they are generally accusations of withholding moneys. prudence. in the history of these infrequent controversies. and the lawyer is under a common-law duty in respect to his employment. and care. therefore. moral. even when the lawyers overstep all decent. skill. of importance in this discussion. the violation of an obligation creates a liability. Hence the lawyer is not often cited to answer the complaints or grievances of his client. the same as other agents and trustees.
to be found in 123 which their common-law duties have been defined by the courts. in many justify the publication of treatises. of the lawyer's real relations and duties to the State. . which I shall proceed to discuss. in the hope that I shall at least open to the profession.THE OBLIGATIONS OF A LAWYER. obscure. and they have been sufficiently numerous. now so undefined. to cases. devoted esof the pecially to that subject. is above three classes a necessary prologue to the im- portant theme. The consideration of obligations. and misunderstood. some of the difficult and delicate questions involved in the subject.
THE "DUTIES" OF A LAWYER. or agent. of a constable. in those matters where to act for his client is a conscious wrong to the com- come now — munity. execuascertain their several duties. which I am now an considering the subject office in generally. tor. A "duty" in the sense in is. to draw a line. To we must know and I the character of their functions to encounter the of their powers. and another between his conscience and his client. and delicate part of my task.— CHAPTER IX. one office. To of ascertain this duty. or to the rights of those to whom he is opposed. The general duty of a lawyer is. policeman. most difficult. in accordance with its nature. true nature of the We must understand the speak of the duty a sheriff. Between these lines lay the whole power 124 . the obliga- tion to perform or exercise the functions of accordance with the nature thereof. to perform and exercise the functions of his office. between the duty of the lawyer to his client and the State.
as a class.THE "DUTIES OF A LAWYER. but his conscience. It lies with him to suggest and to direct. 125 and influence of the lawyer for good or for evil. and gives us the text. so that they can realize how It near. on the part of the lawyers. There is no In a very arbiter over him. to overleap the bounds of conscience. and that these acts have frequently called for very stringent measures against them. in 1237. the ordinary conditions of society. must be remembered that the profession of the law is necessarily one where an almost boundless discretion is vested in its members. the lawyer has the supreme power of direction. and which was . in the commencement and conduct of litigated or other legal matters. While no one can hope. reputation. in the extensive pronunciamento which he issued. and influence. that the lawyers. the affairs of business and commerce. the Papal Legate in the Great Council held at London in that year. as Matthew Paris informs us. always opening to the Bar enormous returns in money. I have found that there has always been a recognized temptation. or far. still remain. In its general exercise. or tendency. it is well to have the lines constantly before the profession. Living up to the most exact standards of professional conduct and ethics. they are from ideal conditions. extensive search into the subject. For example. will live up to the exact and best models of duty.
to the courts. he will plead faithfully not to delay Justice. . or by means of others. ipso facto. do. but to defend his client both according to law and reason. or to deprive the other party of it. to the court. that in cases in which he may plead. He owes loyalty to the State. . in the following language: "We have heard the cry of Justice. . intended to cover all of the evils of the age.' 126 THE AMERICAN LAWYER. We . that whoever wishes to obtain the office of advocate shall make oath to the diocesan in whose jurisdiction he lives. rising to the assistance of Justice. they shall be duly punished. he owes respect and dignity in his deportment. and if they are convicted for so doing. both as a citizen and as a sworn officer of justice. ' The duty cer of a lawyer is threefold : —to the State. offi- as an officer and citizen. . decree. included a separate decree against lawyers. or instruct the parties to give false evidence. all other matters notwithstanding. or to suppress the truth. with the approbation of the council. those who do so shall be. complaining that it is greatly impeded by the quibbles and cunning of advocates. as a fiduciary. Let all advocates beware that they do not themselves. suborn witnesses. therefore. . and to his client. suspended from office and benefice until they have made proper atonement for the same. and candor or honesty in his statements and . as an and adviser.
he Why? Because he strikes a blow at society. cannot be divided into parts. plicable to both. The lawyer cannot perform his duty to one of It these parties. his primary duty is to the State. congruous. his time. which State itself). and honest to his client. He is appointed to conduct judicial proIf a conflict arise between his duty and his Client. any more than he can be dishonest to the State and court. in which the Government the to position of the State in its whole corporate capacity is clear (not a mere question of law. If he attempts to go beyond this. he can fulfill all of his obligations to clients and courts with fidelity and honor. ap- ceedings. It is one complete. and neglect the third. and his fidelity. for the interest of that client is subordinate to the interests of all the other citizens con- — . and neglect the other two. whole. is a part of the judicial system of the Government. is in fact the interest of the he must decide in favor of the former. and dishonest to the court and his client. or a question of the rights of the citizens. it is impossible to separate this threefold like the Trinity. his knowledge. But duty. any more than he can serve two. to his client he owes his talents.THE "DUTIES" OF A LAWYER. 127 dealings with them. He cannot be honest to the State. In every employment which the lawyer reIn ceives. performing this duty.
or honest doubt as to the facts. His oath to maintain the laws. he should not prejudge. Salus populi suprema lex. lawyers. but the latter go unpunished because. knowingly and deliberately. cannot be performed by giving advice. sheltered in the breast of the lawyer. are parts of the judicial system. each and all. and in cases of doubt he is free to act as his conscience dictates. there is no adequate legal evidence. Of course. and knowledge. constables. Yet how are these offenses worse than the conduct of lawyers who. . influence. and all agree that a proper punishment should be meted out therefor. sell their office. or resorting to acts. 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. Is the one class of acts any less dishonest and lawless than the other? Policemen. honest doubt as to the law. stituting the State —who of are interested in main- taining the integrity the judicial system. magistrates. to aid or abet clients to take undue advantage of the law? The former can be punished because the acts are capable of proof. which cause their violation.— ! 128 THE AMERICAN LAWYER.
which is made for his — . Therefore he works with perfect impunity. so confidential that he not only cannot be made to disclose what takes place between them. which is protected all over by the sacred armor of the legal principle. carefully and delicately the game which his client and when the job is to play. When a lawyer cheats the law. The difference is not in the degree of the act. 129 To bribe a policeman to shut his eyes while crime is being committed. He is alone with his conscience.s THE " DUTIES " OF A LAWYER. and the occupation of the lawyer degraded. represent his client. own benefit. 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. therefore. but he is absolutely prohibited from doing so. but in the difficulty of detection. can arrange difficulty. or plot. and wrest from justice and the law. to corrupt a magistrate to permit a criminal to escape. the act is so insidious that it is almost undiscoverable. that his dealings with his client are confidential. and the disresult in getting him into would closure of which The lawyer. He works under the guise of his employment. to defeat the law is "put up" he can go into court. somebody is wronged. to pay a lawyer to use his knowledge to defeat the law. place the whole business upon the latter' shoulders.
the that his profession consists in thwarting law instead of enforcing it. I am bound to say. is — They are satisfied if the client and the general damage which such success may have worked. Is not this pure and simple dishonesty. too often justified by facts. also be safely said that the prevailing popular idea of the lawyer. he is equally culpable. the question as to how far his professional conjustice. 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. or knowingly aids the client in carryIn the one ing his own plans into execution. nothing else but the client's interests. the lawyer artfully puts forward the client. It may is. successful. and he appears merely as the representative.130 THE AMERICAN LAWYER. and think of. In results to which the client is not entitled. or the other. in modern times. the performance of this work. he is often the principal actor. The modern . is to look to. He insidiously fills the latter with false pleas and defenses. that the tendency of the lawyer. whereas. and in fact. is rarely regarded by them. case. few lawyers have ever taken time to analyze their true relations in this respect. duct affects the administration of and is the general salutary condition of the State. to the law and society. almost lost sight of indeed.
When he is at the zenith of his professional fame. In castfor legal aid. 131 suc- who can most cessfully manipulate the law and the facts. relying upon his past record." Availability is sought for not great legal talent ing about — or learning. LAWYER. defeat. the interests of — They The law and of It is the justice. that the most brilliant and learned of the lawyers are employed to defeat or strangle belief. he can accept the flimsiest case with impunity. and wrangle and wrestle it through the courts. or profound student. wholly indifferent to." "Lawyer Jones is your man. is OF one A. the greater his reputation." but "suc- Not a great jurist. but a successful practitioner.THE "DUTIES idea of a great lawyer public no longer calls cessful" lawyers. The them "great. he can hoodwink the court and fool the jury." "Brown has great influence with the court. he is very clever and cunning and will get you out of any difficulty." "Do you want time and delay I know the man for you. or thwart this law?" "Go to Smith. And the rights of the public of. . inside common justice. of course. and outside of the profession. and. or unconscious of. If a citizen gets into criminal trouble. ! are never thought much less considered. lawyer goes with the current the more desperate the causes he wins. one constantly hears such phrases as these: "Whom shall we pick out to break. employ him.
by any stranger. knowledge. In this view. and his ability to postpone and delay. who falsely brags of his intimacy with judges. whose capital stock consists of cunning and impudence. or indifferent. and influence can be hired. must necessarily be guilty in the course of his practice.is as well leaders of the bar everywhere. or. if he wishes to defeat a statute. good. bad. but who sometimes has not even a fair power of presentation. . as to fees. that the lawyers of all classes can be hired by the first comer. he wishes to postpone paying his debts.132 if THE AMERICAN LAWYER. It is believed that big fees will command the It . — . In some instances. if he desires to enforce an illegal demand. the dishonest liti- makes choice (according to the . in any kind of a case. A successful lawyer. well socially gant needs the services of a counselor who stands and politically. of the lowest "shyster" or the most skillful counsel. as thus understood. who desires to comply with his terms. known as any other public fact. every lawyer might be regarded as an intellectual prostitute. whose experience. whose time. and occupied. or the policy of the law. he magnitude and delicacy of the questions involved. 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 mind. and of his means). his necessities call for a pettifogger.
to . the community looks with perfect complacency and composure upon a transaction in which the leading lawyer sells his talent. assailed the right of a lawyer to accept a and employment from any man. to the most retainer — corrupt or infamous individual in the land. right. of 133 many dishonorable and disloyal acts to the often will- State. In fact. His acumen is sharpened. It is his highest glory to be able to "I won that case. unconsciously sometimes. his time and influence. he must suffer some qualms of conscience. but fully.THE "DUTIES" OF A LAWYER. No one has ever. he be a man of fair natural. 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. about this part of the lawyer's business. or underhand. in any The flimsiest defenses. and in time he begins to regard. the victories which he wrests from the law. posed by the leading lawyers not by those in the middle rank of the profession. or pleas. or intuition. of little — with feelings of real triumph. moral sense. are intercase. successfully. his devices become more numerous. There is nothing secret. at the sacrifice of justice and say. It has the approval of the people everywhere. his knowledge." and his air is more tri- umphant if it is a very bad one.
condemning the author and his acts. becomes apparent. when he transforms himself into an agent. To such cases I do not refer.— 134 THE AMERICAN LAWYER. also in this connection. at the same time. and applauding the lawyer who shields and sustains him! To-day a multi-millionaire. — I allude to those instances in which there is no doubt. All these anomalies in law practice. in any case. is among the first purposes. condemning in the most unmeasured terms the client and his performances. as an auxiliary in the administration of justice. the evil that must result to society. . for defeating the object which he The idea legal is created to promote. the right of everyone to insist upon the exact forms and principles of the law being applied. or the law bear in mind. these paradoxes in morals. promote or sustain illegal acts. is most extraordi- nary and anomalous. Yet if one contemplates the true position which the lawyer fills in the Government. civil or criminal. while. can take his pick of the Bar. are constantly witnessed. where the lawyer is deliberately made an instrument to thwart the law and justice and he knows it. of the to Government licensing an army defeat of agents or delay justice. for which society is organized. the exact dispensation of which. Remember what I have said about cases in which there is an honest doubt as to the facts.
THE "DUTIES" OF A LAWYEB. Fatuous When fidelity has no merit. doubt that it should then be safeguarded by an enlightened conscience? When it is so guarded. So those for. it should be more closely scrutinized. in the abstract. A de- . for the duty to the State begins at the point where the duty to the client ceases. are no longer but become positive vices. of which I have heretofore spoken. are virtues highly to be extolled. and blind attachment to the persons of individuals has ended in ruin and even criminality. they serve. and both being bound up with each other. for it then accompanies a grave function and is Who can encompassed by many-sided duties. taking it at its best. and the client. A bad cause has had its votaries. as in everything else. — — mistakes and excesses here. as in the case of the lawyer. and which. 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. But surely there are virtues. 135 sacrifices qualities of fidelity to. no infidelity either to the client or the State. there is in reality no choice of evils. mutually to illustrate each other. it claims exceptional privileges. and presumably of equally vital necessity. Let me not be misunderstood. that is good. in the mind of the advo- cate. and which are so often illustrated by lawyers in their employment.
and. rightly understood. need no amplification. and diligent. private and public. faithful. on the part of the advo- devote himself at all hazards to the rescue expense of the Law. while a single act. They and around us. to of his client at the ciple of fidelity. he immediately encroaches upon his duty to the court and the State. The lawyer's duty to his client is. it may be. can have no vindication from the assumption that it is required by the princate. It is. of one lawyer may not be enough to affect the foundations of justice. for. The lawyer's duty to society and the law must be constantly kept before him. skillful. fects. in plentiful measure. rather. of truth. a condition of things exists in which fidelity to the client and the duty to the court. lawyers. subversive Its evil of ef- that principle. therefore. any system of jurisprudence. and perverts and corrupts the adminisIf. and public opinion. for money. cupidity notoriety. or all of the acts. are in opposition to each other. courts. . If his zeal.136 THE AMERICAN LAWYER. then sign it is a sure things. are with us. needs revising. that the whole of that state of system. to be honest. or desire for success or pushes him farther. termination. in the actual working of tration of justice. to the law and society. and he owes and can justly give him nothing more.
able to trace the effect of a or of a thousand. of profession — es- . Atlas had not a greater burden on his shoulders. under which they exist and thrive. which the public has for the law.THE "DUTIES" OF A LAWYER. 137 the combined acts of a body of lawyers oft repeated. methods lectual of practice. as a class. you may be sure that such acts have contributed largely to the result. fifty in distorting If the philosopher or let critic is looking for evi- dence of decay. of the system of government. like an army of worms. him carefully examine the and the moral and intelthe legal condition. undermining the constitution and laws. will and magnificent surely ruins. silently and secretly gnawing cause It is it at the foundation of a great structure. than the responsibilities of the lawyer in this regard. One may not be single. and he can make fairly accurate calculations as to the longevity. misapplying and perverting its principles. the wheels of justice become deflected. are largely answerable. for the minimum of respect and obedience. Let anyone consider the effect of forty or practices of lawyers. 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. but if thousand legal agents spending their lives and prostituting the forms of justice. or the law paralyzed.
the true functions of the Bar. men have. and judgment must be exercised in its treatment. and may. It is impossible to state any proposition concerning these duties. pecially in this republican form of government. In applying effort to cause The them to follow these general principles to particular cases. as I have heretofore it. is neither visionary nor impracticable. and honest. and the exact nature of which they fill. to expose to the lawyers. thought. by keeping. of the lawyer himself. without con- ceding that in it is subject to numerous exceptions The whole question rests largely. But I have now reached a branch of the discussion where the utmost delicacy. a vast area of debatable ground is opened. which I have heretofore given. is sufficient. The general definition of duty. endeavored to portray . as thus laid down.138 THE AMERICAN LAWYER. is dominated and ad- — ministered by him. wherein many distinguished. the just and proper limits of their office. of members the office in constant view. and conditions. where the influence of the lawyer is so potent for good or for evil and where in fact. an intelligent and awakened conscience. But a satisfactory conclusion may be reached. disagree. every branch of government. generally. and adhere to a strict line of duty.
The profes- As sion of the law holds out a perpetual temptation weaknesses. or the conditions of . that the to human lawyers possessed opportunities. a review of the history of lawyers from their origin. to delay. a different class of lawyers evils would soon appear. These practices have varied. shows. or insidiously and secretly. upon their admission. distinctive feature of their education. If 139 the lawyers comprehend these things. and to resort to. illegally. many other deceitful and dishonest practices and schemes. 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. commit many wrongs in behalf of their clients. while far from being full and exact. if a system of education is introduced. and use. and many would gradually disappear. fraudulent. that the legislators and the courts have not been unmindful of the constant temptation to this class. the cultivation of a high moral sense is made a . to wander away from a strict line of duty. and to either openly. to thwart and defeat just claims and demands. by the interposition of frivo- and unfounded defenses. I have intimated. exigencies of their clients.THE "DUTIES" OP A LAWYER. The oaths administered to lawyers. according to the lous. show that it has always been recognized. the course of justice.
their opportunities to delay. of the payment just debts. Suitors of selves of the all kinds have freely availed themor avoid. that in the course of a research into these subjects. not surprising. we find that arguments have frequently been put forth. Whether of the if with the title a lawyer knew.140 the THE AMERICAN LAWYER. or approved. therefore. was it. For instance. but it has openly encouraged. But they have grown so general and open. claim whatever to and. who had no to the estate . and public opinion has not only not closed its eyes to these things. of and had the evidence. It is. payment a debt. justified in concealing that fact and of investing another. Whether a lawyer. them. not only applicable to contemporaneous history. as showing that the lawyers were in some respects no better in ancient days than they are at the present time. who knew the right and this criticism is And legitimate heir of a property. to sustain the lawyers in practices which were openly and flagrantly dishonest. that they have almost come to be recog- nized as a legitimate part of the lawyer's functions. . with great solemnity and earnestness. and about which it would seem that no two just persons could disagree. times. it was gravely debated in the sixteenth century between the Doctor and Student: 1st. 2d.
in his defense of Queen Caroline. by the appli- cation of the principles of common honesty. happily for the age. as those to which I have referred above. Chap. but there are many who may be needful to remind. and collecting the money a second time The Doctor. Dialogue II. frequent among lawyers and tions of legal ethics." Dialogue I. To save that Client by all expedient means. difficulty in reaching a conscirighteous conclusion in the prem- But there have been. which was unnecessary. is the i "Doctor and Student. was an honest 1 man. XII. that Client and none other. . None more glaring can be cited than the sentiments laid down by Lord Brougham. XV. Dialogue Chap. Chap. VI. others. and had no entious and ises. which have done incalculable harm and damage to youthful. 141 he was justified in concealing his knowledge. I. designing. that an advocate by the sacred duty which he owes his Client. discussions as plain since that time.! THE "DUTIES" OF A LAWYER. In that celebrated trial. and among others to himself. upon queswhich seem to be equally and simple in their solution. to protect that Client at all hazards and costs to all others. or resourceful lawyers. he said: "I once before took occasion to remind your Lordships. knows in the discharge of that office but one person in the world.
which contained worse doctrine than There that which I have just quoted. "I have learned to love William M. the author of those destructive and unfounded views. to the wind. highest and most unquestioned of his duties. Nay. and yet it has been relied on over and over again by lawyers. perhaps never was language written.— 142 THE AMERICAN LAWYER. the torment. to sustain many ridiculous and false positions of advocates. 380. as far 1 i Forsyth's "History of Lawyers. but he need not have used Brougham. despite the fact back as 1859. the destruction which he may bring upon any other. Tweed!" which perhaps he might properly have done. Tweed and then. if need be." p. the suffering. he must go on reckless of the consequences." heard a lawyer use this quotation in the of William M. to cover all kinds of dishonest practices and defenses." he piteously added. to make "Ossa like a wart. in a letter to Mr. 1875. separating even the duties of a parent from those of an advocate. . and his I defense — love together. and the great name of Lord Brougham is still used. or spoken. if his fate it should unhappily be to involve his country in confusion for his Client's protection. publicly repudiated them by saying that they were used as a sort of political that. and casting them. Ed. Fo^th. and he must not regard the alarm. of Brougham.
that was the exaggeration of an impassioned advocate. by solemn asseveration. by rhetoric. and a band round his neck do for a guinea. nor his his client. And Macaulay. not merely believing. 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. and to do it with all the effect which any exercise of skill. by play of i "Table Talk. he should do all that can be done by sophistry. by gesture. his He has a right. men like Coleridge. it left it to his readers to say: "Whether it be right that a man should. 143 it A better defense might be. utmost sympathy of chivalric any rational view it was wholly. to do everything which his client might honestly do. whether it be right that. with a wig on his head. had no difficulty in discerning the proper limitations. by indignant exclamation. what without those appendages. to deed or put in evidence a forged will knowing it to be so forged. 27. but knowing a statement to be true." . in his Essay on Bacon. and called for the But in 1 has stuck like a burr to the profession ever since. unmitigatedly. menace. for a gross exampie.1831: "There is undoubtedly a limit to the exertions of an advocate for may it be able to produce. as. he would think it wicked and infamous to do for an empire." Oct. but it exactly suited the caliber of those who were to profit by it. and disastrously bad.THE "DUTIES" OF A LAWYEB. defending an innocent woman whose situation natures. But is the advocate has no right. In the discussion which ensued. whose opinion I quote. it is bounden duty.
unintentionally. state it. therefore. 83. some ceded duty. of those acts. to prove And 1 yet even so pure a man as Judge Sharswood." and that "when he (the lawyer) has once embarked in a case. without the consent of his client or the approbation of the court.: 144 THE AMERICAN LAWYER. by terrifying one honest witness. principles state which governed by the general have endeavored heretofore to (a) To knowingly commence suits for the recovery of unjust and unfounded claims. would seem to be only necessary to it. 84. he cannot retire from it. . perplexing another. by asserting that the lawyer "is not morally responsible for the act of the party in maintaining an unjust cause. I deem to it. throws doubt upon the subject. when they are discovered to be false and without foundation in fact. to cause a jury to by think that statement false. As an it act of this kind involves pure dishonesty." features. important to specify which I think must be conviolations of the lawyer's leaving other acts." No sophistry can obscure such a position as being wholly against the common principles of i Legal Ethics. or courses of profesto be I be clear sional conduct. pp. or to continue their prosecution. 85.
The object in creating courts was to administer How. 96. in a subsequent x that "Counsel has an undoubted right. p." offends his sense of what is just and justice. 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. and are in duty bound to refuse to be concerned for a plaintiff in the legal pursuit of a de- mand which right. by clearly affirming.THE "DUTIES" OF A LAWYER. honesty." which it is the object of all law to prevent or remedy. because he is willfully stabbing justice. 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. and aiding in the "injuria. . right? How can the law be efficacious. office. if it is slaughtered in the temple of justice. with knowledge of the "mor- party in maintaining an unjust cause. ally responsible" for the act of a i Ibid. I cannot conceive it. truth. then. is turns atheist? A lawyer.
is guilty of a deeper and more striking offense because. would have a quick and exhilarating effect. to help of this from the Bar. but that he should desert it.146 THE AMERICAN LAWYER. at once. and frequent rebukes kind. a lawyer is forbidden betray the secrets which come to him under to By guise of professional confidence. or assists. There may be some room for a question. existing rules of law. as to the form and method which a lawyer should adopt in retiring from a ease which he discovers to be dishonest. perhaps. a layman combines with. him cheat justice. or business associate. upon the acquisition of the knowledge. and he cannot. his friend. in aiding his client to do the same kind of an act. should feel no disappointof escape an easy avenue ment in failing to secure legal assistance. in defrauding another of his rights or property. and there is no real excuse for not promptly abandoning such a cause. and of its entire — . walk into court and loudly proclaim the dishonesty of his client. in addition to act. without violating the privilege above referred to. the world has never altered its views as to the nature of the If and unmitigated immorality. but there is always — from such a situation. upon the morals of the liti- gating community. A man who is conducting a dishonest case. And the lawyer. is perfectly clear.
p. It has almost come to be a proverb in the This is 1 ments See especially Whewell. II." etc. Legal controversies. for I believe the subject perfectly clear. Cresson. has a direct and deep influence upon the morals of the lawyers. or de- feat. openly indulged in. 1 his oath and duty as an Many I but deem them is superfluous. c. which requires him "de refuser les causes dont il connaitrait l'iniquite. 303. one of the besetting sins of modern legal practice.. They are. he violates officer of the law. I. 147 the innate immorality of his conduct. have increased to such enormous proportions that there is little doubt but that such a practice.THE 'DUTIES" OF A LAWYER. however. Vol. and legal claims or delay." 2 acter of the lawyer (6) To knowingly postpone. the moral sense of the whole community is deadened. "Eleof Morality. XV. just demands. but perhaps it is not more so in degree now than in the past. 2 fession "Usages et Regies de la ProdAvocat. . 17." b. is when the true char- understood and considered. and encouraged. S. strikingly confirmed by the oath of office administered to an Avocat in France. however. and upon society in general. When the laws can be easily thwarted. talked about. par M. apposite quotations could be cited from the writings of moralists to sustain these views.
and sometimes the deepest consequences to friends. presents an every-day picture. . by a resort to — — technical There at is and dishonest defenses and excuses. often. family. in the life of a lawyer. when the subject is examined even most narrow light of the lawyer's funcand duties. and future prospects. I want all the time you can get for me.' no doubt. law at all events. 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. but I have not the means to pay it. it is the general open boast of lawyers that any just and legal claim. sistible. is as great as the violation of any other plain duty. i Legal Ethics. in a form which is almost irreThis. may be almost indefinitely postponed. 116. p. are involved in it.148 THE AMERICAN LAWYER. it is just and due. of defending or postponing and legal claims. of his career. must inevitably be to the detriment of the principles of the law and justice. hardly a lawyer who has not felt justified. it becomes perfectly plain that these practices. And in the tions yet. in resorting to such some step practices. The demoralization which is produced. The appeal comes to the lawyers.
it would seem that a suitor has a right to all the delay. course of justice.THE "DUTIES" OP A LAWYER. in such a case. to just claims. to be falsehood in . The formal pleas put in are not sidered as false in this aspect. common and extended. appre- ciating the sults which generally refrom such application after suits have been refusal prompt he says: "If. which is incident to the ordinary instituted. which I am here discussing. The counsel may take all means purpose which do not involve artifice or himself or the party." Of course. for this ". an application should of the question. 116) con- . by the abandonment of the lawyer's plain field of duty. that be impracticable. Pennsylvania existed under a pure common-law practice. when Sharswood wrote his little book. . be made to the plaintiff for time! But. from arguments or reasoning of this kind. in the practice of inter- posing technical defenses. 149 Judge Sharswood evidently felt the delicacy and he meets it by ingenuously saying that. and the declarations and pleas were not under oath. But that circumstance does not alter the principle. and it has made The the practice more is difficulty that. that many lawyers have received encouragement. consequences ensue which are disastrous to the proper ad- ministration of justice. however." (p. except such as are required to be sustained by oath. There is no doubt.
these rights are postponed or defeated. is equally objectionable and truth. "go to law and be involved in endless litigation and expense. the consequences may be as disastrous to the claimant as to the debtor." to law "Go and lose it all. and trouble as substantially amount to a loss of their frequently claims. . rather than embark upon the doubtful voyage of a litigation. or disregarded. 'Individuals abandon their legal rights. if unsupported by merit. annoyance. or The cated. The one is equally as false as the other. plaintiff. fiable delays. There is in conscience no act which has brought upon the if administration of the law more reproach.150 THE AMERICAN LAWYER. for necessitous and dishonest suitors. not contempt. Where is the line to be drawn? Certainly not between the formal pleas not under oath. than these unrighteous and unjustiprocured by attorneys." are expressions that are familiar to everyone." "give it to the lawyers and be done with it. which may end in the far future. and those which are attested by an affidavit. and in this aspect the form of the defense. and involve such expense. and the courts are established If for that purpose. owner are has rights. He is an undisputed claim. entitled to have them vindiof when they refused.
It may be conceded. A hardly appreciable evil. These delays constitute to-day a crying. but its origin and continuation. Jarndyce. proverbial. has now grown to such dimensions. which threatens the very fabric of jurisprudence. In Chancery proceedings the delays were cruelly long and unjust. open. from time immemorial. very different from those which are now invoked to support it. as well as other. and the adminis- tration of justice itself — it is applicable to a whole system. in the transaction of legal. and without doubt many dishonest suitors sought refuge for time.THE DUTIES OF A LAWYEE. and Jarndyce v. shameful reproach upon justice. which. wholesale. as to involve all of the legal agents. these delays were to a considerable extent the result of the intricacies and forms of pleadings. is not an exaggerated illustration of them. So far as I can discover. business. and the respect paid to them by the lawyers and the courts. 151 in The "law's delay" has been English history. has been the general towards greater rapidity. and procured postponements under their cover. was sufficient to attract that great poet's satire. Its danger lies in the fact that it has permeated . that tendency of modern times. in Shakespeare's age. were based upon grounds. but the criticism of delays predicated upon false and dishonest defenses is not answered by a recourse to the past.
so evil in themselves. it invites prudence and economy. These practices. Whatever corrupts the community. and to thwart and defeat the payments of their just debts and demands. both directly and reflectively. classes everywhere unblushingly use the lawyers to procure unconscionable delays. also threatens institutions. citizens and a most vicious practice of lawyers. Before I close under this head I must advert to of society.152 all THE AMERICAN LAWYER. It is an incentive to ambition. must be dangerous to the former. to thwart the right of individuals to dispose by will. grows out of reasons which operate to sustain and make healthy the social organization. or even caprice. in lending the influence of their office. it is a powerful weapon for the proper education and discipline of families. The this power is so apparent that I need not dwell upon it. and if to one such vital organism. all that subverts the morale of the latter. it teresting right grew . In the connection which exists between the Law. must likewise be dangerous. legal ability of their property and experi- ence. The rule of permitting an individual to bestow his property upon his death according to the dictates of his will. to all. No more sacred or in- up with the growth of jurisimportance of rigidly guarding prudence. judgment. as an instituted organism. and those who are charged with its administration.
or believes. lawyer is not justified in using or (c) resorting to dishonest means or practices in the defense of persons accused of crime.THE "DUTIES' teaches charity. and assumed grounds. the legal profession. and. has always been a favorite topic for discussion. But the lawyers have rendered this plain principle of law nugatory. I however. given to persons deliberately. generally. until the doctrine of tes- tamentary disposition has come to be almost a mockery. when fully understood. has less practical importance than is generally ascribed to it. him to be guilty. property is wrested from devisees and legatees. 153 generates a respect for law and order. which I have just laid down. intentionally whom the testators to have it. do not intend to avoid the last-named issue by seeking refuge behind this third (c) proposition. and when they are successful. in. and out of. I believe. No will is safe from their brazen and shameful attacks. The sacred right and expressly desire not becomes nugatory. that the subject. In the outset. Upon feigned. they break wills. it is necessary to clearly define. A The question whether an advocate should defend a person for a crime of which he knows. and it OF A LAWYER. and frustrate the testator's intention. .
communicated to him in his professional capacity. Should the lawyer advise his client to plead guilty? Suppose he gave . largely. its commission. the same as any layman. without his confession —which fact might influence the lawyer as to one course of conduct. On the other hand. the lawyer has personal knowledge of the crime. is what If meant by a "knowledge or belief. what his disclosing information. that there is a full. and consequently would. case against the accused. 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. and must be conscientiously determined by the lawyer when they arise. for obvious reasons. if he is present at. there might be a defect in the technical proof against the defendant. or sees. which the confession would supply. technical. the peculiar circumstances of each case. He may also derive his knowledge of a crime.154 THE AMERICAN LAWYER. he is a witness. upon ititious questions. even if he should wish to speak. from a voluntary confession. duty? His mouth is closed by the law. be practically disqualified from acting as an advocate. because the law prevents him from is In such a dilemma. made to him by his client. It may be." of the guilt of the accused person.
do not. as officers of the court. and from current and public report and rumor. 155 such advice and the client refused to follow it? I repeat that each case must be determined as it arises. in which prisoners have none. keeping in sight the general principles which I shall hereafter. through the Press. which is not quickly communicated to the public. No important criminal act is committed. and about which the community. promptly. With an opinion of guilt.— THE "DUTIES" OF A LAWYER. when the asked if a lawyer should defend a person accused of crime whom he "knows or believes" to be guilty. refer to. would compel them to obey such orders. therefore. 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. that his knowledge. and lawyers in common. The court certainly can assign counsel.. based upon such sources of knowledge and belief. to defend all cases. generally. . is a lawyer justified in defending the culprit? With this moral conviction of guilt upon his mind. in view of its peculiar circumstances. What question is. briefly. meant. is. form an opinion. and their duty. and upon which men generally form and base their opinions viz. or is belief. is derived from sources of information which are open to everybody.
criminal jurisprudence could without such general rules. exact and clear definitions of crimes. No system exist. . rests are indispensable conditions. all. and justice would be thwarted. at times. prevent the conviction and punish- ment of guilty persons. juris- and humane. upon their continudepend the very existence of For instance. right of The the lawyer. is entitled to demand be that each. While there is no doubt that. There must necessarily exist in every community. governed by law. the person who committed the bloody deed discovered and arrested. criminal A person accused of crime. The requirements of the law could not be met. a cold and atrocious murder may be committed. social organization. the guilty man would go unpunished. administration prudence. and the mind of the community morally convinced if of his absolute guilt. to defend persons upon broad and wellgrounded principles. ance and stability. yet all of the witnesses who had knowledge of it should die. to of an intelligent. and satisfied. These accused of crime. as well as certain forms and rules for the trial of offenders. before of these conditions.156 THE AMERICAN LAWYER. the application and enforcement of these forms of criminal procedure. yet. should is he of convicted.
No finer or nobler exhibition of his real duty to the State. it is his duty to urge and demand the acquittal of his client. 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. than the position of the lawyer. impartial justice. and integrity of the English Bar. if the forms of the law are not complied with.THE "DUTIES" OF A LAWYER. at all hazards. are lacking. assert the dignity. 157 that A his lawyer's right and duty. he assumes the character of the judge. If the advocate refuses to defend. demand charged with crime. under such circumstances. from that moment the liberties of England are at an end. and in proportion to his rank . without which. almost passionately. in preserving and upholding the forms of the law. notwithstanding his own moral conviction of If the elements constituting the crime guilt. to client. can be imagined. independence. In doing this. charged. As Erskine eloquently. — said: "I will for ever. he assumes it before the hour of judgment. he performs a double duty one to the community. can have no existence. from what he may think of the charge or of the defense. are. should be proceeded against in a legal and orderly manner. the most valuable part of the English Constitution. and the other to his client. nay.
and which commands the veryjudge to be his counsel. as is known. by a court and jury. quite irrespective of individual knowledge. was made in a great public case. in the sense that he has a moral conviction of the guilt of his client. 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. Why could see that the . in whose favor the benevolent principle of English law makes all presumptions.158 THE AMERICAN LAWYER." This utterance. and reputation. because he often does know. which he has derived. through the ordinary channels of in- and upheld. might be used with equal force by an accessory after the fact. upon the ground that he cannot know that his client is guilty. yet the principle applies to every case where law can be invoked in behalf of a party. A lawyer can always demand that the forms of the law should be complied with of the lawyer. puts the heavy influence of perhaps a mistaken opinion into the scale against the accused. whom formation. and that his duty to forms of the law are carried out. The argument that the lawyer cannot know of the guilt of his client until he has been officially adjudged so. I do not place the right a client. until his guilt has been officially and finally declared.
in order to do effectual justice. it is in first place requisite that he knows of the felony committed. or punall persons who aid. trial or punishment makes the assistor an accessory. commission of crime. where a felony is actually complete. or assists the felon. or who. to punish. and who relieves. fore. as. There- make an accessory ex post facto. aid. with the same reason as the lawyer. given to a felon to hinder his apprehension. because the person whom he had assisted. after its commission. 159 not every accessory after the fact declare. had not been adjudged judicially guilty? In every civilized government. And generally any assistance whatever. in the ishment. to comforts. severely. that the nearest relations are not suffered to aid or relieve one another. And so strict is the law. is An accessory before. that he could not know that a crime had been committed. furnishing him with a horse to escape his pursuers. a criminal to escape detection. rules are adopted in the body of the criminal jurisprudence. a house or other shelter to conceal him.THE DUTIES " OF A LAWYER. An accessory after the fact is a person who knows a felony to have been committed. or open force and violence. capture. If the parent assists his the — . or after the fact. to rescue or protect him. or abet. money or victuals to support him. or abet. recognized as almost as bad as the principal criminal.
If these views be correct. if who have any of them com- mitted a felony. or the servant his master. the receivers become accessories ex post facto. because she is presumed to act under the coercion of her husband. real service do not believe that any can be . 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. or shelter. and all advocacy in his attempts to acquit clients. We see. or the child the parent. does not come within this rule. or even receives his wife. or a moral employ his of the arts of conviction. To do this he can — — knowledge and experience. criminals to escape their just and necessary punishment. A married woman. if he simply demanding that the forms law be carried out. with what strictness and severity. it would seem to follow. that the lawyer's duty. for the maintenance of society. therefore.160 child. is quite clear. the hand of the law is uplifted against those who aid. the master his servant. And and I the confines his efforts to rules of the community cannot suffer. to defend a person in those cases where he has a belief. without a resort to dishonest and covert means and practices. of the guilt of his client. however. THE AMERICAN LAWYER. or assist. if the brother the husband receives the brother.
With a of the general nature of his duties. all for kinds of conditions constantly condown. would give us a race of ideal lawyers at once 1 l Keen. 15. 659.: THE DUTIES OF A LAWYER. it is court in the real meaning of the term. Court. laid down in beautiful but strong language. and a useful officer of the court. whether he will aid. that "lawyers are ministers of justice. or in considering any more conception with the himself to determine. a rule which. In the complete performance of the latter." p. that a court is a place where justice 1 is judicially ad- and the remarks of an eminent Equity Judge. Germain. lawyer No special rules can be laid or defeat. whom they practice" —the lawyer — cannot go far astray. the lawyer becomes the most useful and important member of the community a true patriot of his country. And Christopher St. a faithful and intelligent representative of his client. in the discharge of his duty. front him." p. Lord Langdale. justice. " Reports in the Rolls * "Doctor and Student. 161 rendered to the profession by pursuing this line of thought further. if it could be followed. acting in aid of the Judge before ministered. K . the author of the immortal Dialogues between a Doctor and a Student. Keeping in view that he is an officer of the specific full propositions. of the Laws of England. nearly four 2 centuries ago.
not wholly innate. and as part of it. that thou do nothing against Truth. which should guide the It is lawyer. and also that in every general rule of the law. fore. comes of training and education. it is necessary that thou ever hold a pure and clean conscience.162 THE AMERICAN LAWYER." "And I counsel thee. and genuine hard work. the lawyer is bound by study." But this conscience. self-denial. that all that house may be seen thereby. part of his legal education. as thou wouldest should be done to thee. that thou love that which is good. Along with. at some time to master the history and science of the Law itself. 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. that thou do justice to every man as much as in thee is. forasmuch as it behoveth thee to be occu- "As a light is in the pied in such things as pertain to the law. that thou do to another. and what he ought not to do. it is the result of an exact and perfect study and comprehension of and duties of a lawyer. I trust the lantern that is in thy conscience shall never be extincted. it doth not spring up spontaneously or by intuition. and most important. And if thou do thus. is set in a lantern. and fly that which is evil. It should be first. thou do observe and keep equity. and then. the office made the .
always. or flippant. on the other.THE by a course " DUTIES " OF A LAWYER. race. or the self-asserting. on the one hand. 163 of liberal reading. mind all and seek to eliminate from his narrow prejudices of nationality. All his powers. he should enlarge his sympathies. . that his standards of men should not be the abuse of the ideal. keeping in view. To a man of his so equipped is whole duty. and prepared. may become the limits fixed the cause of great evils. and run into the impractical and visionary. otherwise. but humane and generous. even when accompanied by mere honesty of purpose. in the clearest and fullest sense. the vision soon opened to him. by nature and circumstances. and creed.
inextricably. not exterminate. evils. as a whole. as one would raze a house. scatteringly. and build a new one in its place. involved in the meshes of codification. They very rarely produce a full crop in the season in which they are sown. will essentially mitigate. and its evil results. existing 164 . that eventually a new race of lawyers will appear. in if my opinion. for they are. The seeds of reform are of slow growth. which. cannot be extirpated. The ground can be prepared. the present generation of lawyers. CAUSES AND REMEDIES. I proceed now to classify the existing con- ditions and their causes. Attorneys. which. now. Therefore it would be useless. or Solicitors. and it can be hoped. to attempt to reform. — or Barristers. and Counselors. divided into two classes. An old and pernicious system. and to suggest remedies. A conspicuously rotten plank may be replaced by a new one. will take effect upon the next generation.CHAPTER X. They bear fruit. until by degrees the whole edifice is sound. and new ideas of reform promulgated.
(a) and instruc- In length of time of legal apprentice- ship. in its addition the other necessary qualifications. or schools. from our expected future relations with that race. be able to pass an examination. It must go to the root of the evil. AND LEGAL EDUCATION OF LAW STUDENTS. A person a to who possess real. qualified. No certificates from should be accepted. wishes to study law should elementary education. IMPERFECTIONS. the Latin language and general should know literature. He should. It must begin at It must be contemporaneous with the bottom. of an actual examination. and colleges. under the direction of properly appointed. Deficiencies in education tion of law students. AND LOOSENESS IN THE PRELIMINARY. but each candidate should pass through the ordeal.CAUSES AND REMEDIES. legal apprenticeship. and. II. 165 FIRST: THE FIRST CRITICISM IS THAT THERE ARE GENERAL DEFICIENCIES. Reform of the law cannot be superficial. in one other modern language. ELEMENTARY. Insufficient educational requirements and examinations preliminary to matriculation as a legal apprentice. also. preferably Spanish. examiners. I. as proof of these requirements. .
. (d) No instruction in the functions and duties of legislators. that he does not occupy a first rank in the profession. (c) No. evidence. instruction in criminal jurisprudence. of be actually spent. — may Notwithstanding this ignorant criticism. as a (b) Absolute want of instruction. and citizen. and Federal and State. awaken and exthe best mental and moral qualities of lawyer. (/) No. it is ercise. in the functions and duties of lawyers. should clerk. It is avoided and shunned as rather disreputable. It should be not less which three. that the study of criminal law. and the in- to fulfill this requirement in and attention neces- sarily superficial. connected therewith. and has an able man to perform the function. and 1 spirit of laws. To say of one "he is a purely criminal lawyer" involves. it be confidently asserted. in its origin and purpose. In fine. a certain obloquy. in a law office. instruction in the primary principles and elements of jurisprudence foundation. but i and practice the time struction is too short. constitutional. it is assumed. or inadequate.166 THE AMERICAN LAWYER. than seven years. instruction in American historical. law. and practice. or insufficient. Columbia College undertakes one of her courses. of legal apprentices. advocate. nature. or insufficient. and in the pleadings. (e) No. and professional ethics. It is fashionable to taboo this branch of jurisprudence. object.
Deficient and non-systematic education in all of the branches of law. substantially as follows 2. There Colleges.: : CAUSES AND REMEDIES. Case law is taught. in his commentaries. Most of . Pleadings. and Walker's American Law. the greatest institutional is writer. There are too hastily put together. The study of institutional law. has not considerable knowledge of criminal law. Evidence. instead of elementary Blackstone. law. (g) No. but a judicious selection can be made by competent lawyers. and Kent's Commentaries. Requirements of law examining boards is Academies and practically abolished. from Law are superficial. clinical training. The abolition of "case" law as a fundamental means of instruction. who III. 3. which should be dropped from a legal course. them are good and bad ones. or insufficient. in the office of a practicing lawyer. and the introduction of the study of law from text-books. In addition to prolonging the apprentice1 ship to seven years I advocate the following 1. by a complete mastery of Blackstone's. not a word. 167 impossible to conceive of a great civil lawyer. and Practice the — 1 Except in a few instances I do not mention the text-books which should be adopted.
The law of personal property." Judicious Selections from Savigny. 4. with such books as the following : < Paley's "Moral and Political Philosophy. 6." Montesquieu's " Spirit of Laws. Constitutional Law. and Equity and Common-Law practice. upon the history and chronology of the law reports. foundation." Puffendorf. Pothier. 15. Criminal Jurisprudence. 10. Grotius. together with the principles of legislation and the duties of legislators. 13. embracing Federal and State practice. Equity Jurisprudence. and the principles. study.168 latter THE AMERICAN LAWYER. The domestic relations. A course of lectures. Natural and civil law. 5. 7. 8. The law of corporations. The law of real property. The law of principal and agent. 12." Burlamaqui's " Natural Law. 9. and d'Aguesseau. and spirit of law. 14. or education. 11. The law of Executors and Adminis- trators. The law of contracts. Domat. Macintosh's " Discourses on the Study of the Law of Nature and Nations. including Federal and State. The law student should know the history of the re- .
have not embraced all of the involved in a complete legal education.CAUSES AND REMEDIES. of the law and PRINCIPALLY. ALL PRODUCING THREE OF THE WORST ENEMIES OF JUSTICE AND JURISPRUDENCE. This order of legal study is of course arbiThe study of the law. under proper tuition. 1 they were published or promulgated. 16. SO CALLED. 169 and where. BY WHICH THE PRACTICE OF THE LAW IS CONCENTRATED UPON FORM. but these. and. commencing with the organization of society. I. and under what circumstances. and opening up to the student. The study of selected cases. (1) DELAYS. and when and how it is commenced and pursued. It de- pends upon the tuition. But.. ports. (2) COSTLINESS. the study should be begun in a natural way. trary. instead of being a burden. the development of the law. TO SAY NOTHING OF ITS BALEFUL INFLUENCE UPON THE LAWYERS. can be made interesting and fresh. FROM CODIFICATION. E. RATHER THAN SUBSTANCE. They can be specially pursued if desired. and an effort. and all of the other subjects omit1 1 ted. such as Admiralty and Patent Law. INVITING AND CREATING WHOLESALE TRICKERY AND SHARP PRACTICES. it can be converted into a delightful occupation. are necessarily encountered topics by the student in his general reading. . primarily. AND (3) UNCERTAINTY. : logical and historical SECOND the existing state LAWYERS ARISES.
Behold the title to the New York Code of Civil Procedure! "An Act practice. and the forms of form tion of civil action. The difference between a common-law lawyer. and the practitioner under the Code. 1 1 Sec. and to change wholly the so-called grade. It should be called: "An Act to complicate. and ignorant. it would be more truthful its to say. Jurisprudence of ignorant. The Code has earned its perhaps. has and imper- of law. or standard. has written own epitaph. multiply. Reformers indulged in the futile. attempt to amalgamate law and equity. and proceedings courts of this state!" How own the irony of legal history frowns on this or. 3339: " There is only one distinc- suits in equity.170 THE AMERICAN LAWYER." between actions at law and . and proceedings of the courts of this State. The those actions and suits. to simplify and abridge of the the pleadings. fect codification. assumptious sentence. and pleadings. title it . have been abolished. of all its its intellectual been to deprive the practice science. is the difference between a surgeon and a butcher. Among other vain pretensions. befog. render uncertain the practice." The effect of the introduction into American illogical.
they carefully preserved. the Courts of Equity. Since the adoption of the Code in 1848. that one cannot cast his eye upon any part a daily bath. statement. without the sep- two systems. (as witness the banishment of Blackstone as a whole) upon which the maxims and rules of the law are founded. And. the distinction — index! I only indulge in this single.. 171 At the same time. forbetween law and equity is abolished in New York! The effect of modern American codification. which is not receiving courts new interpretation from the or without stumbling The effort to upon some gross blunder! make the law. relief. and to convert him into a disputer of the meaning of statutory language. of of the Code. Instead of seeking the truth. in what were known as Special Terms —where trials were had without a jury. the Courts and the Bar. 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. general. are engaged in the pursuit of technicality and form. CAUSES AND REMEDIES. and its forms and . from a study of the elements and principles of jurisprudence. sweeping. has been to divert the student. thousands of litigants have received purely equitable is Jurisprudence impracticable. I cannot undertake a full criticism of codification.
or its harmonious relations. — — — — The forms. has cost millions of dollars to suitors. to cause delay and expense in the administration of the law. to the whole of the law. fallacy. THE AMERICAN LAWYER.172 practice. was the system. an open book to all. In money. called "law reform. and right. and technique. of the violent criticism of the practice and pleading. Invoke the thousands . of the it — common law. and principally. justice. it has ruined at least two generations of lawyers and it will probably ruin two more. Never. complained of. ignorantly. as a science. of silent wit- vindicated. upon which public sentiment was created. has been to lower and cheapen the profession of the lawyer to throw the law into inextricable confusion and doubt to entail vast expense upon suitors to create law libraries filled with worthless books." has now been thoroughly exposed and exof common-law ploded. more completely and handsomely. We have now every one of the evils. in practice. to influence what was. in the old system. without the certainty which had been evolved from it. We have had in New York 1848) of nearly sixty years codification. containing records of disputes upon questions of form and practice and to substitute these latter and minor considerations for those of substance. of experience (since and the experiment has been a lamentable failure.
but. or the ability. not understanding what they destroyed. and supplied all deficiencies. when the pruning knife was to my mind. never arbitrarily imposed. simply the work came from the impatience of those who. the attempt to simplify has been to bemuddle. to accomplish it. and destroy to produce a — . calling for amendment. enshrined law reports. or who had an ambition to reform. and its practice. the manifold delays and intricacies of legal procedure. may have been the subject of some just criticism. collected in 173 New on the shelves of law libraries. To say nothing of the extra costs and expenses. struck a blow at the most prominent feature of the law. without the time.CAUSES AND REMEDIES. arose out of mere questions of form and practice. when a few simple amendments would have remedied which testify that in the all to dig redundancies up whole. all that was needed of —was. The forms of the common law. found it more easy to destroy barbarians. It . itching for the title of law reformers. nesses. but the wellconsidered growth of ages of experience. confound. than to understand or who. York. to cut down and cast out as worthless a whole body of judicial procedure. in the shape of legal precedents. to extirpate a whole system to correct a few evils inseparable in some shape from any system. most of the cases.
and unjust distinctions and arguments. They are put together quickly. The modern Codes produce artificial or paste lawyers. in the hands of an expert. has invited and encourages technical. qualities are put in a proper crucible. practice. sophistical. rubies. Out of the confusion. have diverted the legal student. and made to shine by false and artificial lights and colors. and blaze at a distance. doubt. Codification has prevented the full development of the sic qualities of intellectual. in the Code. narrow. and chaos of codification. in efforts to defeat real justice. I am of course speaking as a whole. but when their sparkle. to a search after cases. They shine. they are found not to be of the real quality. chattering and quarreling over the meaning of words. there will gradually be formed. that it is almost impossible to detect their spurious quality. and encyclopedias of law. without the magnifying glass. illogical.174 race of THE AMERICAN LAWYER. and forms. analyses. and foren- lawyers. or first water. pigmy lawyers. The manufacture of artificial diamonds. and emeralds has attained such a state of perfection. The multiplication of precedents. from the study of the elements and principles of jurisprudence. and perfect moral. Legal digests. a . He has become a mere "case lawyer." he stops at mere form.
THIRD: THE EXCESSIVE NUMBER OF LAWBOTH TO THE COMMUNITY OF THE PROFESSION. Already there have been. way-worn and come traveler. upon professional knowledge and accomplishments. which. which will closely resemble that of the common law. and continues illegal. IS DETRIMENTAL. much unnecessary and unfounded litigation is inaugu- and many disgraceful practices engendered. but upon sharpness and cunIn the effort to sustain themselves. in a jungles. pracand procedure. in its course. of legal forms. that like is. and fraudulent practices. encourages. logical tice. fate. and litigation. un- founded. YERS. It creates. be not the evil to some otherwise more Facilis descensus Averni. And the codifying fiend. in his devastating work. 175 and compact system.CAUSES AND REMEDIES. how many lawyers' offices does an individual need to visit. to procure an attorney to make a defense to a suit. if the legal lost mind. three codifications since 1848. leaving everything black and ruined. For example. still perseveres. demands. because necessarily many of the law- yers depend. practically. AND THE MORALE. and after years of experiment we will land exactly at the spot from which we started. like the ravages of a prairie fire. . where there exists no rated. spreads over the whole system of jurisprudence. not ning.
But when an individual wishes a lawyer to interpose a dishonest defense. or a present. It An number would follow. naturally. action. fall Besides. how much of the obloquy should upon the of. lawyers makes the profession cheap and common—pleexcessive beian. The lack of respect for the Judges. The lawyers will weave from a mere thread of truth. there are dozfense. If one sensitively honest lawyer be found. or an entire de- women spend days Cunning and trickery often displace real knowledge and ethics. if he wishes to institute an unfounded. AMONG THE MEMBERS OF THE BAR. possibly. or substantial answer? Men and in searching for a peculiar kind of precious stone. But do not place all of the blame upon the shoulders of the lawyers. he will probably not be fatigued in the effort to find him. clients? badly trained. curtail the number FOURTH: the general lack of manners. or a brooch. He will. not go beyond the first office. such as I here. ens of others who will act. And he will encounter the same experience. have briefly outlined would immediately operate to of lawyers. that the introduc- tion of a system. AND THE ALMOST TOTAL LOSS OF AN espHt de COrpS. or unjustifiable. as by not .176 meritorious THE AMERICAN LAWYER. a whole cause of action.
TO THE EXCLUSION OF INTELLECTUALITY. affected the prestige of the legal profession. and of the long and studious vigil? . its members. POSITION AND DISTINCTION. CULTURE.CAUSES AND REMEDIES." "The degree is of estimation in which held becomes the standard of the estimation in which the. As Burke says. like a fight between ruffians. for the profession. discourtesies brother among lawyers. any profession selves. of what use. making the practice of the law. for the possession of plunder. REFINEMENT. the respect for of the age and experience of lawyers. produces a contempt for each other. is the formation of character. habitually saluting 177 want them with uplifted hat. AS THE SOLE CRITERION. professors hold them- A good-sized book could be written upon this aspect of the subject. which should be refinement and This has. is When such a criterion adopted. political and only social attained learning. which we follow. undoubtedly. AND LITERARY. THE ADVENT OF WEALTH. or secure. Lack of manners. and. OR SOCIAL. OF ARISTOCRATIC. and deprived true ambition. evident that the ambition to excel by right methods must be crushed. then. by real merit. positions. It FIFTH: has enabled its possessors to buy. of it is and moral influence.
RESULTING. can be obtained through politics. of the business. which has been to deprive the lawyers of a large part of their old business. not law. INTER ALIA. become the aim and end of the lawyer's aspirations. fact that the profession of politics can secure judicial positions. will be enlisted on the side of politics. IN THE FOLLOWING: Changing law into a business. and politics.178 THE AMERICAN LAWYER. supplant profound. effect of The . where hard common sense. then. fields of practice. and adds a positively corrupting element in the lawyer's ambition. such influence as the profession gives. and profits. and perhaps more important. good business judgment and acumen. and professional honors and emoluments. instead of pure counselors. and to drive them into new. legal knowledge and ability. technical. The THE RADICAL CHANGES WHICH HAVE OCCURRED IN ALL PROFESSIONS AND BUSINESS AND COMMERCIAL OCCUPATIONS AND RELATIONS. tends in the same direction. (very soon it will be through politics alone). SIXTH: The institution of incorporated companies and agencies to transact conveyancing and legal business with cheapness and guaranties. is based upon the ultimate outcome. If fame and power. where they become associates in business adventures. and where their compensation.
unnecessary and superfluous nay almost ridiculous. TO A GREATER OR LESS DEGREE. classic. WHICH FURTHER LIMIT THE TRUE SCOPE OF THE LAWYER'S FUNCTIONS. otherwise. also tends to lay open to . make the occupation of a lawyer. and finished legal arguments. EIGHTH: the existence Whatever tends. THE ADOPTION BY THE COURTS. — SEVENTH: the increase of litigation HAS CAUSED (PERHAPS. OR OTHER SOCIAL. as they destroy the taste. 179 Rendering the study and practice of forensic eloquence. OR EVEN CORRUPT. of an undefined FEELING AND SENTIMENT THAT JUDGES IN CERTAIN LOCALITIES ARE. I SHOULD SAY " FORCED"). to lower the proit fessional standard. OF RULES. IN JUSTICE TO THE BENCH. of ornate. FRIENDLY. SUSCEPTIBLE TO POLITICAL.CAUSES AND REMEDIES. These rules. They do not so much produce brevity of speech. tending more and more to degrade the law into a mechanical occupation. and eral all those habits of mind which connect the profession with literature and genknowledge. one of pure commercial business. and render useless the cultivation. INFLUENCES IN THE PERFORMANCE OF THEIR DUTIES. with all of their elevating and refining influences.
or influence. concealing his judicial discretion in a mist of meta- — . Not undoubtedly exists in many necessarily based upon its the physical corruption of the judges (a rare vice). in favor of his friends. equally as bad in judges. independent. and without regard to the harmony of the judicial system. This is the worst species of corruption because the judge. It makes it appear to the litigants that it is necessary to select not an advocate of a higher order of intellectual endowments. judgment of the highest importance the judge can throw his discretion. or opinion. legal in cases of intricacy or doubt. But this sentiment of our larger cities. this imputation. free from actual bribery. 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. the bar upon the and the com- munity. —there results is a moral corruption. or legal learning. upon the mind of the judge political —one to whom. or is the question "close" is —when where strict. but one exercising a supposed moral.— 180 THE AMERICAN LAWYER.
without client. and on the administration of the law. that in instances. TO SOME EXTENT. POSSIBLE. stifle own ability. 181 physical doubt and false reasoning. EXACTLY. The power .CAUSES AND REMEDIES. It is one of profound importance. which such conditions have upon the bar. and resort to means which more certain of success. In litigation involving large and important results. it is sure great hardship and wrong would occur. from expressing any final opinion upon this subject. contrary to his inner conscience. without a possibility of redress. awards the judgment. many some arrangement beof a contingent char- tween lawyer and acter. NINTH: THE ENORMOUS EXTENSION OP THE PRACTICE OF CONTINGENT COMPENSATION. the lawyers who breathe in such an atmosphere. readily. can be. and to the real equities of the case. HAS UNDOUBTEDLY AFFECTED THE CONDITION OF THE HOW GREAT. IT IS NOT BAR. appreciated and the clients and courts do not escape their are — the contagion. sacrifice their own convictions. TO SAY. The power and wealth I refrain of our corporations are so tremendous. It is also one of great delicacy. The natural demoralization. as bearing on the morale of the profession.
of these bodies. to contingent fees. a kind of fraud upon the court. The sists ethical objection. with lawyers. besides. the ordinary difficulties which surround the subject. conin party to the suit. do not prevail. the question of fees is changed into commissions. Without contingent arrangements. of the results of an appeal to the law. or helpless. When the interests of justice. with the interests of the community. often of a doubtful character. a formulator of It is. and therefore. their power would become oppressive and tyrannical. and concentrated methods. and with professional honor. In those instances. making the lawyer a . can be subserved. and this adds another powerful motive to contingent arrangements. are almost overwhelming. necessarily. such practice generally can be reconciled. But the point is whether the practice of contingent fees has not outgrown all just proportions. litigation. with the increase of litigation. and the lawyer being transferred to a mere agent. has increased. The uncertainty. and is not the direct cause of much unfounded litigation and blackmail.182 THE AMERICAN LAWYER. or divisions of profits. on behalf of a poor. and a perversion and confusion of the mind of the advocate. where pure commercial business results are sought for. without litigation. and when the fee itself in no wise takes advantage of his necessities. client.
in awakening and holding the respect of the community." but I have felt it unnecessary to open it fully here.CAUSES AND REMEDIES. See ante. in Court. alone. attorneys or solicitors. many cause- ELEVENTH: the lawyers should wear a IN COURT. 183 the non-existence of a division of the bar into two classes: 1st. he effectually controls the vast audience before him. counselors or barristers. p. 1 I alluded to this subject. the factitious influences are very great. I think have already I have said that this division would. 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. distinguishing them from suitors and spectators. for the In the administration of justice. and increase business. in England. or badge. GOWN OR APPROPRIATE BADGE The fact that lawyers do not wear a distinctive gown. profession. is another element. . " So may The world subject. and no matter how pusillanimous in figure or mind. which tends to decrease the respect of the community. of. 81. and. 'Much has been written upon this and con. the vast changes in. require the profession to be divided into two classes. 2d. : TENTH decided No matter how this question might have been many years ago. and making their calling a marked one. stop less suits which are now begun.
The Bar. as far removed from commercialism as possible. employment. and necessarily the people are less interested in public questions. in its pristine people. It will interest of social . where his mind is naturally affected by the bias of an advocate. I hope it is unnecessary to say that I love the profession. is the saving ingredient in the composition of a democratic liberty. it seems to me. The distinction between a federation of States and a Nationality. 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. That judgment is constantly called into exercise in every description of do- and personal concern. His mind and training incline him to free and pure thought and independent judgment. and securing sometimes restrains it. I shall Here end. when he enters the field of jurisprudence and politics. and have at heart members. is growing dim. in the and political happiness. while system of government.184 THE AMERICAN LAWYER. The country needs such a class more than ever. Trained in the knowledge of human nature. The freedom of some of my remarks will doubtless create antagonism in some minds. his acts and mestic opinions should be of the greatest value to the would build up a race of pure lawyers. I vigor. permeatall its ing and vitalizing it branches.
on a large scale. an entire sympathy. and for all those great purposes. it should not have written. and has had the least opportunity of actual contact with certain kinds of practice. 185 probably be the strongest where the lawyer himself is the purest. have called attention. in all those respects. I must freely and in the venerable language familiar maintain. With such I have Long and many-sided ex- perience and observation. I can pity the temptations with which it abounds even while I urge its reform.CAUSES AND REMEDIES. "Of this I put myself upon the counto which I try. That reform is needed. He will think that he advocates the interest of the profession by denying the existence of its evils. however. to us all. as the life of which has formed so large a part." . Otherwise I noble calling. The welfare of our is as dear to me. convince me of the truth of what I have written.
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