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Cornell University Library
The American lawyer, as he
was— as he is-
3 1924 018 771 265
(IJnrnpU ICaw ^rtjool library
f'ORfcEl.T vv RhELL
Cornell University Library
original of this
the Cornell University Library.
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the United States on the use of the
" Commerce Act.THE AMERICAN LAWYER AS HE WAS—AS HE IS—AS HE CAN BE BY JOHN Author of " The " Interstate R." &c." "The Anglo-Saxon Century. NEW YORK 1907 . THE BANKS LAW PUBLISHING CO." " Commercial Trusts. &c.. DOS PASSOS NEW YORK BAR OF THE Law of Stock Brokers & Stock Exchanges.
DOS PASSOS .Jopyright. by JOHN R. 1907.
the Literature. and his under which he Oath is Authorized to 50 CHAPTER Nature of Lawyer's Vocation VI 68 iii . and the Conditions Practice. 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. since the Civil War 35 CHAPTER V The Education of the Lawyer. the Stage.
IV CONTENTS CHAPTER VII PAGE The Lawyer's Political Employment as a Legislator. The Duties of a Legislator 85 CHAPTER VIII 115 The Obligations of a Lawyer CHAPTER IX The "Duties" of a Lawyer 124 CHAPTER X Causes and Remedies 164 . and in other Capacities.
Still each is capable of separate. In the inis expressed through the ballot box. the Bar. They all in view. INTRODUCTORY. and the Stage. in shaping the course and destiny of the nation. and more or less created. A 1 . —the by the Pulpit. CHAPTER I. public thought is reflected. I shall four great organs of public opinion. as citizens.THE AMERICAN LAWYER. not undertake to estimate the relative value of each of these organs. as creative forces. terim of these official utterances. but it is impossible to discuss one without keeping them They are parts of a whole. the ears. bear the same close relationship to each other that the nose. do to the head. It is assumed that what the people of the United States really think or want. the eyes. the Press. and the throat.
They framed the former instrument. affairs.2 THE AMERICAN LAWYER. honest. but it is only by acquiring a correct knowledge of them all. the crude sentiments of the people. and devoted to the administration of mand . of the people. but I must elucidate it. by brief reference to the Pulpit. it subject to the lawyers. is most profound and penetrating. — — that lawyers should be intelligent. both the right and interest of the whole people to delators. My subject is the Bar. going too far to and afterwards as lawyers and Judges. therefore. At least. the Press. first as politicians. here and there. It is. with a written Constitution. and for the people. The lawyers swarm in all of the departments of the National and State Government. While this is said to be a government add. 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. and the Stage. is by the people. then as legis- — not. In a confederation of States like the one which we have established. in all branches of public and private life. They both make and interpret the laws. must be filtered through the lawyers. that one can fully comprehend the combined influence which these four organs may have upon existing distinctive treatment. perhaps. capable.
it is to be classed among the most important of commands. the laity has paid no attention to the subject. 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. and . real. and control. has yet published the real nature of his calling going from the top to the bottom of it. In every aspect of life. introspection of itself. 6 When hundreds of lawyers are turned out upon the community each year. cover almost every inch in the extensive field of technical law. The reason is obvious. public the results of an investigation of the profession. It has been overlooked. by the lawyers in respect At least. judicial and legislative. Nor does the Bar make any full. to graze upon all of the pastures of public office. justice. every branch of the government. pable truth. or neglected. He who ventures therein must be prepared to quit the sacred precincts of precedent and stare decisis. when they swarm in. the important region of the lawyer's vocation seems Apparently no lawyer to have escaped them.— INTRODUCTORY. legal While the multitudinous treatises which writers have published. precedent. executive. and depend upon ethics. than legal. "Know thyself" was the Delphian invocation. no one has yet made to their office. It is a subject more literary and It carries one far beyond general.
4 the THE AMERICAN LAWYER. have hitherto received but When little recognition as living forces in society. the due relation of lawyers to other interests of the community. natural conditions. and then to inquire if they have lived up to it. which underlie human society. He must then say some ugly things about himself. accurately. they are unable themselves from technical and professional restraints. 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? .. Hence. It is of the first importance to endeavor to ascertain. and while their works have done something. he is very apt to run into a confession. except to themselves. Men do not like to confess. all of this. while many lawyers have doubtless ruminated upon the subject covering with their mind's eye the same field which I am about to traverse they have not screwed their courage to a point of putting their thoughts upon paper. while doubtless felt in a dim way. within to free itself. Hence the enormous importance of those aspects. to reduce the law to a science. which. lawyers become authors. yet its more comprehensive relations have escaped them. But beyond when a lawyer under- takes an honest introspection of his profession.
seems to and to the courts. but no one has raised the curtain upon the lawhistorical review of the profession periods. 5 Some the technical books have been written about of Warren published his lectures. treatment subject. and all phases of a lawyer's life and of his relations to his client. from remote and Sharswood has contributed a little work on Professional Ethics. of his calling." . lectures. beyond It is this narrow view. narratives. distinctive. covering legal romance and history. Social and Professional Duties of Attorneys and Solicitors. have been written and published. if it had been sustained in the text. one sees that the lawyer's vision have extended no further than to a contemplation of his duties to his clients. Besides. We look in vain for any adeof this quate. would have covered some of the ground gone over here. and essays. the broad title of which.INTRODUCTORY. And there are several books on the lawyer's technical duties and liabilities. In all of their writings. held to unexceptionable purity of quite well understood that to his clients is the lawyer conduct. and that he must be fair and honorable with the Court. yer in his full relations to society. These duties are imperishably i"The Moral. without stint. Forsyth's "History of Lawyers" is a most interesting obligations 1 lawyers.
6 THE AMERICAN LAWYER. They seem to be a part of the milk of his education. sometimes even of truth and justice. I know of no occupation more interesting. which he unconsciously imbibes before entering upon the duties of his office. with a very inadequate knowledge Fundamentally. it that. . The lawyers stop here in the survey of their and as there is no course of instruction. Accordingly. written upon the lawyer's mind. they believe of their calling. but from a failure to appreciate the real and full nature of their professional duties. It then will be seen. and bottom of their professional they should serve their clients at all sacrifices. than to attempt to hold up to the lawyer. a faithful picture of his real mission. not with malice prepense. that they start out in professional life. or book. mission. at the top career. that a large number of the lawyers are delinquents to society. which opens to them their full duties. is not surprising.
CHAPTER II. it appears. literati. the nobles and warriors of ancient times were ignorant of reading and writing. It was then. between the State and litigants. THE GENEALOGY OF THE LAWYER. in all countries. to 7 — . a body of men whose business and training fit them as interpreters of law standing. lawyers are a necessary part of civilization. In England. moralists. and law advisers. The and ing. and honored callThis distinction. who acted in the multiform relation of priests. trolled. the man of superior mind and education conBut apart from direct historical data. originally grew out of the superior knowledge of the lawyers. as it were. they at least regarded them as effeminate and inharmonious with their lives. and did not look with absolute contempt if they upon these arts. All knowledge was locked up in the breasts of Ecclesiastics. as it should be (but is not) now. a favored There must always exist. in connection with a government. profession of the law has been at all times.
and if they appeared to be such. they were to be received and sworn well and truly to serve in their offices. and an independent order of their own was the consequence. that all attorneys should be examined by the justices. Regulation of attorneys was 2 made in the reign of Henry IV.8 THE AMERICAN LAWYER. who had now become a very considerable body of men. XVIII." I. see that proper application of laws. and therefore. they were to be good and virtuous and of good fame. " His- 2 " History of English Law. page p. 422. IV. and by their directions their names should be put in a roll.. and especially that they make no suit in a foreign country. Hen. to make sure of their qualifications. The lawyers gradually segregated themselves from the ecclesiastical system. it was ordained by Stat. and such as were passed in the above manner "The Parliament began for provision i See Pollock & Maitland's Law. . Complaint had been made of the mischiefs arising from their ignorance and want of knowledge of the law. 211 et seq. 4. is made to individual disputes. 2d ed. tory of English I. Reeves puts it in this wise: to make some ordering attorneys. all other attorneys were to be put out. In England the law began to be cultivated as 1 a separate study in the thirteenth century." Vol. c.
this ordinance was also to be observed in the exchequer at the discretion of the treasurer and barons. the client did not understand it. Now the client can both read and write. " It was enacted. but the law is complex . so to speak. should diminish. 9 were to be put in their places by their masters (sic). being virtuous and learned. or otherwise. the justices might appoint others in their room. the client could not read or write. consisted in representing litigants before the courts for money. between himself and the court began to weaken. and never be received to make suit in any of the king's courts. Originally. that if any attorney was found notoriously in default. the intimacy. or ceased to act. however. and sworn as above mentioned. When the occupation of the lawyer. as a true friend of the court. and so far as his individual cases were concerned it was simply hu- man nature. by their clients. he should forswear the court. and that his usefulness. " It that is." The lawyer first appeared as a friend and adviser He worked with the latter to sift of the court.THE GENEALOGY OP THE LAWYEK. of record. out the truth and render justice. that his advocacy of his client's interests should overcome his independence. and notwithstanding that the law was simple and contained in a few books. was enacted that when qualified attor- neys died.
of affairs where individuals are compelled to repose confidence in others. and that without a trained legal very frequently knows not the way out of the woods himself. statutes. then applied to the illegal practices of lawyers as they are now." or in advocates guilty of collusive or deceitful practices. Inordinate zeal for clients. are their predominating traits. delity. most prominent illustrations of this truth. codes. and ambition to win. threatening with imprisonment the " serjeant countor. legal guide guide. passed King Edward the First's day (1275). . are mazy and tangled. cannot pursue in all of its labyrinths. the breach of it is the The lawyers are the . for the paths through adjudications. are powerful stimulants to human energy. stand in the path of success. and all kinds of personal sacrifices in the interest of the client.10 THE AMERICAN LAWYER. client and multifarious. century. Human nature was very much the same in the thirteenth. and often sweep away moral and legal barriers. It is a characteristic of the human mind to be faithful to a trust to be over. Fi. not the rule.exception. and law treatises. and the it. as it The brakes were is in the twentieth. to excesses in advocacy This has led them exaggeration of facts —and — often to gross which sometimes to crime. and a statute is cited. untiring industry. zealousness.rather than underIn all the varieties zealous in its performance.
and of unlimited confidence. is the primary sin for which the lawyers are answerable. 11 is The only importance of the above references to show that at all times there has been a tendency on the part of lawyers. and when and how the confidence is bestowed. generally from excess of zeal. to overstep the limits of true professional bounds. they chiefly arise out of their relation to the State. But will be set forth in the subsequent chapters. of power and opportunities. The abuse . What this power is. sometimes from greed or ambition. and not to their clients.THE GENEALOGY OF THE LAWYER. They all of also serve to apprise the present Bar that the evils are not characteristic of this era.
It is said that comparison gives definiteness well. they depended upon an eloquent presentation of their causes. from instruction and association. the old and new regime of lawyers is this: the great aim of the old lawyers was to master the elements of law. and clearness to thought. and I put the old generation of American lawyers on the farther side. to speak with some authority The fundamental difference between of the past. disappearing law. they stood nearer to 12 . A PARALLEL BETWEEN THE PAST AND PRESENT LAWYERS OF THE UNITED STATES.CHAPTER III. I am drawing a line between the period before and after the Civil War. understand anything it with something else. I cannot speak with complete knowledge of the It was gradually I was not of it. I and that we never can without comparing when I became an apprentice to the gathered enough. old generation. I thus institute a comparison which I think is happy. however. and the new ones on this side of the line.
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.
the right of the pledgee is payment of a note. in entire ignorance of its previous decision in the Williams case! A century ago such a precedent would hardly have passed unnoticed. The case of Williams was controlling upon the court. consisting of a different personnel. without notice to the pledgor. nor was its attention called to it in the points of counsel. and no new or independent consideration is required to support the waiver. B . in the latter case of Toplitz. the pledgee proceeds on the note. he is liable for damages occasioned thereby in an action of the note. but the court. upon default in payment of be waived by agreement. may the vicissitudes of the doctrine of stare decisis under present conditions were powerfully displayed in the above litigations. and that if. public or private or otherwise. after having waived his right to a strict performance of the contract. or course of conduct on his part. which leads the pledgor to believe that a forfeiture will not be insisted upon without an opportunity given him to redeem. declaration. conversion. 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. to so dispose of it.PAST AND PRESENT LAWYERS. without notice. on either side. did not remember Now previous decision.
hardly contradictory statements. and the binding? Naturally. I cannot afford space for others. and of the several States.18 THE AMEEICAN LAWYER. and those States of the highest courts of the in- dividual years. inasmuch as last decision. Yet thousands of dollars were lost by the unsuccessful litigant in the first case. and of the principles of jurisprudence. This is only one illustration. the whole question apparently remains open. Now which which is of these decisions is right. unfortunately. No doubt they are within the recollection and reach of the Bar. was made and as much saved by the fortunate plaintiff in the second. or industrious precedent hunter. Alas! for the uncertainty and instability of stare decisis. These views are further illustrated in reading the decisions of the Supreme Court of the United States. disregard of the rule of stare decisis. —say for of the last twenty-five illogical Such a mass bad reasoning. in sufficient number to show how sensibly weakened the doctrines of stare decisis has become. without any knowledge of the previous one. or logically. by virtue of a multiplicity of decisions which cannot be unearthed. . even by the most lynx eyed. and. conclusions. such a lack of knowledge of elementary law. and an ignorance or contempt of the history and spirit of the Constitution of the United States. it But.
. Let anyone. that it can be said of it. Fisk * is a good illustration. S„ p. undertake to enter into the extensive field of decisions. and judge-made law. 713. and hence it is. has been so twisted and turned by the judicial minds which have grappled with it. 19 can be imagined to exist. aff'd 93 N. By the Code of Procedure of 1 30 Hun's Rep. it is because he has no inThat simple enactment.PAST AND PRESENT LAWYERS. 113 U. as it were. is fencing with the forms of the law. Y. created by the interpretation of the Commerce Clause if of the Constitution. rarely can be brought to the surface. Legislative. have accumulated so fast and thick. 652. Courts are ashamed to confess that a precedent which they have made is wrong. that elementary principles. as was repeated of the "Year Books" a precedent can be there found on any side. It requires great courage to overrule a freshly made decision. buried — thousands of feet deep under mountains of precedents. tellectual perception. The case of Fogg v.. to-day. for example. p. and most of the time the real issue is buried out of sight. 61. Legal practice. the Civil War. "jumped. of any subject. and whose history is so well known to students of the American Constitution." But I must return to my parallel. since he does not emerge with a mind scratched and bleeding from the thousand thorns there existing. which anyone chooses to espouse.
that the practice of examining a defendant before trial did not prevail in the Federal Courts. They transferred the cause to the Federal Court. There was not the slightest the ground. The defendant was at his wits' end. and those who did cared nothing about avail of a decision of the Circuit Court of the United States. was to it. The defendant appealed to the General Term of Supreme Court.20 THE AMERICAN LAWYER. But the Circuit Court judge held. that the defendant could not cut off an examination. But his lawyers were equal to the emergency. already begun in the State Court. in fact. was not traversable under the then Act of Congress. which in turn affirmed the original order. sued out a habeas corpus from the . The order was sustained. for the motion to transfer. The object^ of the transfer. He must submit to the examination. however. because but few knew of the existence of the case. by a removal to the Federal Court. The affidavit that a fair trial could not be had. It was granted. Then he carried the cause to the Court of Appeals. The plaintiff applied for an order for the examination of the defendant. New York. under certain circumstances a party to an action may examine the other party before trial. upon the statement that the defendant could not have a fair trial in the State Court. put himself in contempt. The defendant then refused to answer.
— When possess. the great schemes of present times. to entrap the unknowing. even audacious. not. it the defendant died. have almost disappeared. Real eloquence. under these conditions. What kind of a mental make-up must a lawyer States tice. under which he staggers like Christian in the "Pilgrim's Progress." under the weight of his sins.PAST AND PRESENT LAWYERS. wakeful. and he must create. and a knowledge of sound elementary law. a fresh. to attain prominence? He must be sharp. and the lawyer is burdened by the incubus of form and statutes and codes. or make effective. like . 21 of the United States. understanding the necessities of commercial development. bold. precedent at his tongue's end. so that his clients will not be entangled in the meshes of modern legislation. he must be a good business man. which springs up as grass. and not one word had ever been heard of the merits! Every practicing lawyer can furnish one or more similar stories. clever. hot. in the choice of remedies. he must be quick of speech. with the multifarious provisions of a Code constantly at his beck. every year. 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. holding that he escaped examination by removal. and that august tribunal set him free.
sometimes even usurping the client's discretion and judgment. They cut a In a word. comparison between the past and present is . A judicial inquiry into the rights of parties for "points" A means a search and forms and precedents. In point of morals.22 THE AMERICAN LAWYER. and he is a better business man. the flint musket to the rifle of twelve cartridges. As a class. He has no less brains no less natural intelligence. deliverance from them. I can discover little or no difference between the past and present lawyers. small figure in his professional merits. It is a lamenlawyer. or talent. for recourse to them. — . to assist their clients in good or bad causes. or in natural ability. he is withal. the lawyers always have been ready. and experience. he finds of him. Simply. are not sought for. not disadvantageous intellectually to the latter. than the lawyer of yore. to avail themselves of all the weapons at hand. armed with different weapons. 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. to have a happy when he cannot have none even in any other kind mental equipment. life. to the breechloader which automatically pours out its murderous fire every second. justice. Powder has given way to dynamite.
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
be always ready and physical resolutely and placed in his courageously. when the legislatures are in session. illustrating century. utterances of the . is languages. which establish the limit of legal oratory. to be able to stand up before his fellows and be listened to. crisp. It has always been one of the most absorbing passions of man. of history.in necessarily an orator. of metaphysics and of logic. The study literature. all of its attendant glories and attractions. and poetry . brief. The scenes have The age of forensic eloquence has gone. The great book of human nature must ever lie open before him.PAST AND PRESENT LAWYERS. to the actual bone of the The practical. is now heard in the United States in a week. More involved the character every conceivable kind of rhetoric. than Athens or Rome listened to in a oratory. defend the causes hands. But the real orator has almost entirely disappeared from the legal stage. to 27 and train his mental to. It is a psychological felicity that perhaps preponderTo-day it is the domiates all other ambitions. with modExordiums and perern lawyer have succeeded. from twenty minutes. nating passion of all Americans to talk. shifted. true and false. faculties. of language. Every oral argument must be boiled down. to two hours. orations are abolished by rules of court.
THE AMERICAN LAWYER. and the graces of rhetoric are neces- sarily banished. attained before the addresses are made. of from one to five hundred pages leaving nothing to the imagination. I say in general. or indolent judiciary. Of course it counts to be able to "sum up" group quickly the facts together. too busy. The his skill of the the are lawyer in handling witnesses. in such minds of a few of the more intelligent jurors. To supply that which cannot be spoken. I do not mean that wrong is perpetrated. the placing of light circumstances the a tell dramatic —these upon the jury. The great raise en scene effects are what bring results. or to instruct an ignorant. that in times past the . In general. but not in a greater proportion than long ago. what are called legal "briefs" have expanded. to means which a way as to catch the am trying to make clear is. or intelligence. who dominate and capture their fellow jurors in the jury room. In proportion as legal oratory has been curtailed.— 28 contention. professional success is In jury trials. mainly — because the Bar their learning is afraid to trust everything to and industry. for juries often go astray. twist capacity to all and magnify in facts. the results of jury trials are just. briefs are made to an ab- surd length often reaching a good-sized duodecimo. of the judges who are to read them. The distinction I well.
Philadelphia. David wore a swallowtail coat and brass buttons. he carefully placed his gold snuff box in front of him. another way exemplified the difference between past and present. and after many minutes of clever preliminary acting. took from his pocket a bandanna. without any rage. No modern lawyer is apparently satisfied with . The great criminal lawyer." George M. and began his classic. Before he addressed a jury. ornate. silk handkerchief. and the copious accents of legal knowledge flowed from his lips and found lodgment in every listener. whether addressing a court or bar. and strong.PAST AND PRESENT LAWYERS. and yet so keen so deep. voice was pitched so that every word was heard without a loud or dissonant sound. his With a gentle and graceful gesticulation. and sympathetic trousers. Wharton. So gentle. he bowed gravely to the Court. glanced slowly and carefully around the court room. In looks and size he was not unlike Napoleon. and yet so clear. in — jury. now and Place an ancient and a modern locomoand one cannot suppress an exclamation. 29 advocates and advocacy were different. The lawyers before the war. also of the Philadelphia of Paul Brown. blew his nose in the true spirit of a snuff fiend. a buff vest. and the lawyers of to-day. address to the "gentlemen of the jury. are as different as the steam engines of then. tive together.
It has always been necessary to check them. himself unless he can shout and use passionate or furious gestures.30 THE AMERICAN LAWYER. classical scholar. too rhetoric! much business. X. sharp. The judges now to clear his give an advocate hardly time throat. what is greatest. half an hour. he is often encouraged by an admiring client. nor profound lawyer. to tolerate Of course I do not forget the neverfailing tendency of lawyers to talk in infinitum. for its master and to evoke clear busi- ness results from complicated conditions: crisp. and quick. And after "a great physi- cal" effort (as some wit has justly pronounced of voice and body." an "eloquent presentation!" To such base uses truly have we come! I refer to Mr. and not brains. who acclaim it "a great speech. of New York as one of the best illustrations of the modern lawyer neither an eloquent nor finished speaker. or audience. Hardly a lawyer ever believes he has . too many impatient jurors. and. as circumstances classic demand. and yet having elements it) — of all of these. that he pect may have twenty but brusquely inform him minutes. In all ages the habit to talk illimitably has ex- isted. a mind practical pre-eminently ability to distinguishable details. such Alas! To ex- would too be eloquence under altogether absurd. conditions there are many cases on the calendar now. or an hour.
all that he has to say. functions the very head and — — . of logic. was superseded by arms. 31 the the most of his time. which. or by violent denunciation or inflammatory appeals. rhetoric. When that mode the noblest of his front were gone. closed the era of pure constitutional discussion. That discussion. cases. and. and how can you blame him for not imitating David Paul Brown? Circumstances truly alter Of course I am speaking of civil trials.PAST AND PRESENT LAWYERS. . scientific pursuit. as a purely intellectual and classic. in its great aspects. regardless Still. and it was the most august function of the lawyer. had been kept alive by the friction between the States. In criminal cases there is still room for real and order. both in the courts and the legislatures. modern jury lawyer makes He bangs away at the facts anything he simply hammers into his halfhour limit. I may add. It is sometimes heard. The truth is that the profession of the law. reached its zenith its Augustan Era —at — the commencement of the Civil War. It is not to be expected that lawyers should escape the influence of a war. or of slick and measured entreaty. to engage authoritatively in of controversy it. as a first consequence. or really oratorical effective oratory. or in a calm and seductive voice. said enough. He uses just those particular weapons which will catch the jurors. in tones of thunder.
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.— 32 THE AMERICAN LAWYER. who were without a local center as in England. the cultivation of . As opposed to these. Then came the influx of wealth. until. the growing sense of empire. mere fractions of many separate communities. the Bar presented the spectacle of distinct bodies of men who. The sensitiveness as to the intellectual value of high legal attainment and effort was lost with the circumstances which had made them necessary. the creation of new sources of prosperity and power." Slowly and noiselessly as the falling tide. intellectual and scholastic attainments no longer win because they are rarely found combined with a practical and adaptable mind. Wealth has stolen his social position. but were split up into parts often incongruous. however deserving. successful war. every day becoming more numerous. gradually and imperceptibly. the change set in. which once made his office so illustrious in the land. the lawyer has been deprived of most of those splendid qualities. had been shorn of their highest centralizing motive.
agencies. much of his professional occupation and emoluments have been taken from him by combinations largely composed of laymen. and is disappearing behind the hills of the past like a setting sun. or that his general influence has been entirely disI affirm. . and position of the lawyer. clothed in the unattractive garb of a mere commercial agent a flexible and convenient gopanies. that his. however. in the legal profession. that his aristocratic sipated. rather than a deep and accurate knowledge of the principles of jurisprudence but always an exceptionally good — business man. often cultivating every kind of equivocal quality as the means of success. I do not mean to broadly assert that the calling of a lawyer has lost all of its honorableness. — between. in the char- acter. but even there the old guard of lawyers is succumbing to the influences which have wrought the change elsewhere. are illustrated in the large cities of the In the rural districts some traces of old professional life still exist. The change more vividly country. 33 eloquence has fallen into desuetude. influence. by "Title Searching" com- and collection and other mere business whose principal alleged merit towards the community is cheapness. and the lawyer stands before the community shorn of his prestige. and social prestige has disappeared.PAST AND PRESENT LAWYERS.
and influence. and out of the prolific womb of national life. a deep exists in its proper vigor. manners.34 THE AMERICAN LAWYER. different in education. no longer Since the war. a new legal epoch has been born. moral and intellectual standard has been lowered. and that the natural and legitimate influence. . and profound gulf has been made between the past and the present. and thought from our legal ancestors. has sprung up. a new race of lawyers. which the old regime possessed. which his office entitles him to wield. lacking the dignity. learning.
THE PRESS. are not ushered in and morals ners. and it is only when they are fastened upon us. that we are deeply aroused to their existence. not only in the national characteristics.CHAPTER IV. or New epochs by written and the declarations or proclamations as polit- ical principles sometimes are. and noticeably 35 . but in all proIt fessions. cannot be overlooked that the new historical era. manners. but noiselessly and gradually grow out of prevailing conditions life. Declaration of Magna Charta Independence. and political No one can accurately fix the evolution. inaugurated in this country by the Civil War. manof the people. like the parasite upon the tree. trades. in the habits. in national life. to the sound of trumpets and martial music. — commercial. They like — cannot be traced to a certain time and place. THE STAGE. of birth of national habits. was followed by changes of the most radical nature. SINCE THE CIVIL WAR. and habits of the people. and businesses. THE LITERATURE. social. AND THE BAR.
to advert to the Press. the Stage. quickly communicates itself to the others. the newspapers are almost unrecognizable. but he has photographs of the prinaccompanied cipal actors in these occurrences. because the throbbings of the telegraph give out every minute the news from all quarters of the globe. upon the breakfast table. are generally sympathetic. so in the professions of law. Contrasted with those of forty years ago. and in general literature. and this huge journal is placed. with more or less accuracy human and divine affairs —running the whole gamut —entering. into the minutest details of social and domestic life. before and after the war. It may at least serve the purpose of an illus- tration of the changes which have come over us. As I have said. The avidity for news — — . pictorial magazines. in a metropolis. furnishes a proper analogy and prelude to a study of the condition of the legal profession. by graphic pictures of the events. The reader is furnished daily with not only a full statement of the doings of the whole world. What affects the one. journalism. and then sold for a mere song. the organs of public opinion. daily all chronicling the events of the world. histrionic art. illustrated. every morning.36 THE AMERICAN LAWYER. and Literature. They are of the Bar. with of fiend- ish glee. like those of the body. because a brief comparison between these last-named occupations. now huge.
is to make money. inimitable and illimitable. The most paper is is striking feature of the modern newsIts function its diversified occupation. humor or fancies. THE LITERATURE. Imis ravenous. THE STAGE. as mere writings. His genius is reflected — in the advertising columns. however. 37 our business to knowis going to do. or arouse the pas- of the masses. not always Attic. have by no means vanished.THE PRESS. every event calculated to attract the notice. in sensational colors. however. The central aim of the newspaper proprietor. and the real purpose of journalism. It is part of whatever anybody has done." The personality of the newspaper owner never appears. or promptu productions frequently appear. Wit and humor also abound in the press. alas. becomes subordinated to the greed of the age "put money in thy purse. Advertisements are seduced from the shopkeepers and business community by a large circulation. in the daily and weekly press. The genius and talents of the newspaper writers. if tickle the sions. and the large circulation is gained by portraying. no longer simply confined to printing news and animadverting upon public questions it is no — . through the advertisement columns. which are strikingly brilliant and clever. with the choicest morsels of the best classic writers. The editorial has given way to the news column. and which will not unfavorably compare.
They furnish the sick and fever-heated needy with ice. A newspaper as thus con- ducted cal. and espouse the rights of the public in the civil — — money for these establishes na- detective bureau. self-supporting newspaper. not a journal! —a self -estab- lished. and the plans and details are blazoned . longer a guide and a teacher. They hunt down criminals and boldly usurp every duty of the district attorney. 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. but the whole body is advised thereof. and often to advance personal and political interests. and miscellaneous bureau! — in It must be admitted. and the hungry with soup. the left hand doeth. and perform manifold deeds of genuine benevolence. institution —the head sums prizes of A newspaper is which is a "busi- ness manager. politi- put motion by individuals to make money. a bureau. now an ties." gives promotes all kinds of charieleemosynary and other public works it It — and collects vast it of it purposes awards tional landmarks it — is an intelligence office and The journals outvie with each other in their advocacy. and financial support. of philanthropic measures. magistrate. and policeman.38 THE AMERICAN LAWYER. sporting. courts of is justice. literary. they establish summer and winter homes for the poor. however.
make — conspicuous parts of the paper. have become so frequent. that they are fatiguing. treat the recommendations of the journals with a feeling akin to contempt. They lavish and ostentatious gifts. 39 and "trumpet tongued" to the world. THE LITERATURE. its utterances are looked upon with amusement or suspicion. The readers. and no matter how brilliant. and parading the names of the donors in out. is still felt to be held by a kind of sufferance. And the privacy and sacredness of domestic life! It is an open book. its wails and shrieks. gradually. 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. Individual security. and death-like headlines. to weaken its influence with the people upon many public Its opinions and conclusions are bequestions. impossible for it is practically him to establish and maintain a newspaper. talented.THE PRESS. coming gradually less effective. THE STAGE. The effect of the change in journalism. has been. of its departure from the real and noble purposes of the Press. It is natural that when . if not often directly invaded. An immense capital is now required to conduct one of these metropolitan bureaus. satiated with sensationalism. and eloquent a writer may be. without great financial resources. I need not speak of it.
condemns vice weapand maintains the supremacy of the law. the chief glories of the drama. The new drama is almost entirely realistic and sensational. it holds up to approbation the lives and acts of virtue. And who goes to the theater to study pure Eng- — — In the main. The "theatrical world" also discloses radical changes. should be one of the most powerful organs of public opinion. in its pristine condition. In its proper sphere. There are many exceptions. the newspapers are transformed into advertising bureaus. of course. In a word. have been entirely divorced from it. actors. The aim of the proprietor is to catch the advertisers is —that of the advertisers to catch the public. The ability. exist. talent. The stage. or wit. satire. and as the rule. through the terrible ons of ridicule. genius. they must lose all moral force as leaders or teachers of public thought. literature and poetry.40 THE AMERICAN LAWYER. In going to a theater. a community discovers that newspapers discuss public questions for the pure pecuniary benefit of their owners. the best we can hope to see is some adlish? . and directly or indirectly. but even they have not wholly escaped from the prevailing influence. 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.
ennobling thoughts of a dramatic filled author. are frequently consigned to the flames. he must be tricked out with the appliances of modern "art" before he can be Descending lower. all hopelessly mingled together which tend to convert the actors into clowns. with an ambition to do something real for his age. comes general literature. covering almost every and habits. which is expected to compensate for any poverty of higher attributes in the actor or the author. Lastly. and a senseless display of tumbling. tossing. But the theatrical manager knows the public taste. Shakespeare cannot any longer stand on his own unaided merits. we have to "draw. THE LITERATURE. and vaudeville. trivial puns. Need it be speciAcrobatic feats. majestic. The actor has hardly a distinctive chance to shine. books and periodicals are yearly . He must "hit" that And the beautitaste between wind and water. or the waste-paper basket. Myriads turned out upon the world. fied? made and shuffling upon the stage tragedy. — — ful." something in comparison with which the rudest Thespian buffoonery of the ancient time was respectable and interesting. 41 mirably 'arranged spectacular effect. THE STAGE. The sensual and material tendencies of the age are nowhere more strikingly illustrated than on the stage. vulgar witticisms. closely following prevailing fashions of belles-lettres.THE PRESS. comedy.
that there were congregated in an acre lot. but Pickwick had the felicity to mingle with. insure may yield the requisite attraction to admire the ingenuity displayed in all this. Dickens recounts with inimitable humor." to be an author. tortured into a thousand — shapes. expression.42 THE AMERICAN LAWYER. and science are ransacked to furnish material which. or to say it in such a way that it may appear to be new. The whole character of that notoriety profit. To see one author in those days was a sight to be remembered. these The great. When Madame Leo Hunter gave her fete champetre. judgment tempering into sobriety. and invention. 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. conceivable theme of leading human of thought. and We may species of writing which so largely influences the mental habitudes may be roughly summed up . It is no longer a question of learning. nearly all of the authors of the day. but one of "knack. all of them in a morning all real authors! History. are now only incidental and very rare. is characteristics productions the effort to say something new. It is one of the wonders of the age to see how many men and women have devoted themselves to writing books. geography. but does the merit of it rise higher? The solid basis of a classic taste. and talk to.
43 it has many shades and is by no means confined to mere purely imaginative productions. into thought A singular evidence of the decline of the true aesthetic faculty is the little encouragement given to Poetry of the highest order. but degrees and many and action.THE PRESS. abroad with them by the word "sensational". fearing a controversy in which they cannot convince. while they toss the books aside. Much of paper. but it has ceased to be a thing which men take to their "business and bosoms. one-half of the world of literature would disappear in the abyss of time. which enable newspapers and books to be published. as we have shown. The public yields to the fascination. and. and much of it is good. and. and the improvement in the art of type- setting machinery. and the standards they' impress. modern litera- . yet it is certain that without great poetry there can be no great poetry has undoubtedly been written in these days. fabulously low. THE STAGE. THE LITERATURE. carry the tastes they form." A practical thought. If the price of paper were raised to ten cents a pound. It affects the Pulpit. at a price. the Press. it even invades the scientific. in view of the multiplicity of these productions. and can only feel themselves degraded. is the extremely low price literature. The few who cherish models are so much at a discount that better ordinarily they shrink from obtruding them.
and the owners of newspapers. are the great organs of which I have spoken. are their faithful representatives. These organs They change As they are. and Stage are likely to be healthy. with the habits and thoughts of the people. social. political. There is very little see-sawing between the Press. and — — intellectual condition of a people. they are apt to be demoralized or sick. would receive a deadly blow and shall I the people an untold blessing? And what — the responsibility of the publishers for this The classic publishers! who dote condition? upon the best models of English literature! The same remark applies to them as to the theatrical managers. They are usually reflective and not creative forces. They are generally upon an even keel. — and Literature. and the People. the Pulpit. In these days they rarely lead and make public opinions. The barometers which reveal the moral. Press. if it is abnormal or diseased. they oftener follow it." "Behold the de- . Stage. Critics who assume to rise above the surface of things. They feed the public with the food they relish and give them plenty for their money. is THE AMERICAN LAWYER. so are the people. are constantly saying: "Look at the Press —how low and degraded.— 44 ture say. If public conscience is healthy. The moral sense the conscience of a nation is exposed through public opinion.
THE PRESS. intellectually and morally. and facilitate the transfers of real estate. in the practice of the law. has passed from the hands of individual lawyers into lating to titles. THE LITERATURE. other companies were formed. It was as quick. ture. to search or investigate titles. these companies. who were "Conveyancers. for a fee incomparably lower than that charged by a considerable body of the profession. One of the first changes. are too clever only when the people require them to be so. the Pulpit "Even not what it was demoralized. Returning to the law. They give the people exactly what they demand." Later. until the entire business re- known as and transfers of real estate. They are low and coarse. fashions. a few lawyers organto the ized a company. More than thirty years ago." condition of the Stage. It would seem quite if striking changes should not have crept into that profession. THE STAGE. 45 praved once. as the other organs of public opinion. tastes." is is "The Bar. unnatural. morals. Title companies were incor- . and unfaithful to their true missions. to adapt itself demands of new conditions. and habits. They and skillful to be out of tune with public conscience and taste." simply inviting the people These great organs generally hold up a faithful mirror of prevailing culcritics are But such to look at themselves. was created inside of the profession itself.
to and trust all manage decedent and organized were collect kinds of mercantile accounts. at Law" and professional glamour of become a business.46 THE AMERICAN LAWYER. It is the boast of some legal firms that their mere office expenses run over fifty thousand dollars a year. titles porated to examine the other companies to estates. as commissions. Nothing can betMost ter illustrate the change of the profession. these "trusts. individual members of the Bar. or banking department. some of the law firms in a metropolitan city. one imagines that he is in a commercial countingroom. with the change in their occupation. They attached themselves to all kinds of corporations. and law has colossal fees. solicitors. From "Attorneys and Counselors they became agents. are often paid to . and of the intellectual the Bar has flown. agencies to real estate. and gradually driven him into other fields of employment. and other combinations were formed to do general legal business. and commercial operators. The "outdoor" or office business of the lawyer has become the most profitable. or combinations. legal all by wholesale. The characteristics of the lawyers changed. These corporations." created to transact. formerly performed by have at length absorbed a very large share of the lawyer's former work. kinds of law business. Entering the offices of as officers and directors. practical promoters.
THE PRESS. Of course. Thousands of lawyers seek livelihood life. A vast contingent business has been inaugurated. It is known. The people do not seem to comprehend the . by the young lawyers. Through the door of politics most American lawyers reach the Bench. is to remove the lawyer far away from his technical and intellectual pursuits. and to cause him to forget. and business associations are often more cultivated. in which no litigation is involved. THE LITERATURE. by the voters. or neglect. The fact constitutes. one of the most demoralizing influences of the age. THE STAGE. social. criticised and yet tolerated. and a fee of one hundred thousand dollars is no longer regarded with astonishment. the inevitable effect of these employments. Vehement protests are Political. perhaps. upon the successful close of financial and business operations. than a knowledge of jurisprudence. but in vain. 47 them. In many transactions the lawyers are half bankers and half lawyers. enter created fast enough for them to politics to advertise themselves. and promcannot be inence in political and the offices fill. if not sanctioned. the true mission of his profession. One lawyer received more than a million of dollars as a contingent reward. to change his habits. others because they cannot gain a livelihood in any other Some manner. talked of. from time to time made against it.
than he has to turn water into wine. If a lawyer can obtain judicial position. beyond all of these things. It lowers the respect which lawyers should have for the judges. the majority have not the necessary accomplishments. and delays and other manifest which the people evenIts demoralizing influence upon the tually suffer. It removes But all incentive to study and real ambition. evils supervene. bar is indescribable. and the race is nar- rowed down to those who are willing to proclaim most loudly. or a proper concepLaw then becomes more tion of their duties. has no more chance to become a judge. the approbation of their brethren of the bar. They neither demand. it shows that the comor less a chance. The man with real accomplishments. supplant those of learning and fitness. refuses to enter into a contest for the judgeship. for all of bined influence of the bar. and spend their time in pulling the party ropes. nor care for. because while some good men are chosen. Lawyers become schemers and office-seekers.48 THE AMERICAN LAWYER. The people are the eventual sufferers. without political influences. in character and learning. seriousness of the practice. their own merits. or indifferent. to correct an evil which destroys its own prestige and morale. if they do they are In general the best equipped lawyer. The qualities of audacity and immodesty. by . is not strong enough.
. and path to professional glory by hard and laborious legal study and cultivation? If the lawyer can obtain clients by becoming a member of a social. what are regarded as. examined. what he is the always existing actual. Keeping them in open juxtaposition is the only real means to advancement and reform. why should he weary his brain and mental faculties with profound or steady intellectual occupation? If he can obtain references. uncertain why — independently. is the never to be realized ideal. As it is now. more important D issues. and what he should be. We must study both. 49 attaching himself to a political organization. the elections are general. or political club. receiverships. of a civic. trying. or church. The difference between what he is. THE LITERATURE. instead of tying himself to books. What he should be. or eleemosynary association. ness and character of each candidate could then be. why should he not become the inseparable companion of some friendly Judge? I am endeavoring to show what a lawyer is to-day. In the selection of judges. I believe the evils could be largely reduced by holding separate elecThe question of the fittions for the Judiciary. THE STAGE. should he take the more rugged.THE PRESS. and the merits of judicial nominees are lost sight of under. is as wide as the ocean. and patronage by cultivating the Judges.
the making of a These fundamental requisites to full lawyer are almost entirely all overlooked in of the courses of education offices. they should be taught the real mission of the lawyer which includes profes- To — sional ethics. and how.CHAPTER V. To produce lawyers who can perso he grows. law schools. to use a commercial phrase. form their duties. it is necessary to know of what. without any 50 followed in law . they are made. to know the course of studies they pursue before they are admitted to practice. Lawyers are made up to be mere instruments for their clients. the nature and object of law. they should be taught to cultivate a moral sense. the nature and duties of citizenship. and academies or colleges. AND HIS OATH. THE EDUCATION OF THE LAWYER. AND THE CONDITIONS UNDER WHICH HE IS AUTHORIZED TO PRACTICE. As the lawyer is trained. judge of the quality of our lawyers. the nature and duties of a legislator. but above and beyond everything else.
nay. 1 "To the student who begins the study of English Law. But if he approached it with a well-grounded knowledge. 51 attention being paid to their duties to the State. cussed. Domat. But it is true. of ethics. where remedies are dis- 2 Austin's Lectures.THE EDUCATION OF THE LAWYER. Kant. Pothier nor even Blackstone except in a fragmentary manner or any other book or course of studies calculated to impart the above fundamental knowledge is studied as part of the curriculum. or the mission a lawyer. Austin. Savigny. professional — — — — and rarely at all. without some previous knowledge of the rationale of law. The fact is extraordinary. incredible." 2 i ter See in this connection ChapX. of the general principles of jurisprudence. it naturally appears an assemblage of arbitrary and unconnected rules. One cannot blame the of legal study is professors. . and with a map of a body of law distinctly impressed upon his mind. knows nothing of moral philosophy. through the ordinary course of preliminary legal study. pervades and influences all legal education. he might obtain a clear conception of it. Montesquieu. Burlamaqui. I mean based upon codithe sentiment of codification. The curriculum fication. III 362. as a system. with comparative ease and rapidity. or organic whole. A candidate. Neither Paley. in general.
Sheldon Amos. Phillips in his able and independent discussion of Jurisprudence says: 1 "I firmly believe that the intolerable aridity. 27. and which. to itself. 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. and the inquiry how it has been done will become an easy one. not of the law do. Let him once clearly perceive how these questions have become necessary and how they are connected with each other. as it arises out of the conditions of human existence. before he comprehends What every jurist has first to its outlines. but of that great system of jural problems which forms the framework of all law." Let one more quotation. describe.52 THE AMERICAN LAWYER. embodying the authority of Prof. In like manner. is make himself master. the general perplexity and confusion of the young student of English law arising from the lack of clear scientific guidance: 1 Phillips' Jurisprudence. Mr. Let him once thoroughly comprehend what is to be clone. is entirely due to the infatuation with which the student usually persists in exploring the details of his science. 26. which may be pernicious and must be imperfect. . in his own vigorous and graphic language. usually attributed to legal study.
" "Modern nate and collateral. and is not quite sure whether he where. and place of a science. however. more indestructible than anything he can find in Text Books of English Law. or a systematic exhibition of what is universal and everlasting." A candidate for the Bar must. He knows not where he is going. that what he perchance be there. i before admission. Systematic View of the Science of Jurisprudence. is in search of. that in the course of instruction of the Columbian University lectures upon the very competent person. or in the successive modifications in the substance of law itself. may in He draws near." he says.THE EDUCATION OF THE LAWYER. ." and the "History of European Law " are given by a glad to say. the loose guesses of politicians and moralists. the dreary register of meaningless variety. But it is subordi- "Elements of Law. " He hears of 'Jurisprudence' and he has a is He thirsts dim hope. and for want of time inadequately appreciated. 53 "It cannot be surprising. and yet who affect just sensitiveness enough of conscience to interfere with their unflinching interpreta1 tion of a single law. page 508. the reckless verbiage of those who have studied just law enough to confuse the spontaneous workings of their conscience. deeper. Professor Munroe Smith. "if the young English student approaches the Science of Jurisprudence with somewhat of a quivering heart and trembling gait. or wanting to go. going. he is often enough regaled with nothing more satisfactory than a story of incessant change. I am Civil Law. anyfor something broader.
and yet know nothing of the ethics and mission of the profession. The student attends a course of lectures. that the candidate A man is a fit person to be admitted to the Bar. of legal age. Moral character means. is subjected to desultory examinations. Besides these requisites. The general educational qualifications are ordinary. Chap. applicant must pass an examination before an examining board of lawyers. skims through a few legal works. an ability to show. at this time. may have a good character. in some States. A smattering of history. the examination for admission to the Bar. relation which lawyers bear Government. is superficial. grammar. and the American people. by a certificate from third persons. to criticise in detail the curriculum. which are the sine qua non to admission everywhere. 1 Let it suffice that it is entirely inadequate to produce a lawyer. crams himself for a final "quiz" i See Post. the and Latin. . for two or three years.54 THE AMERICAN LAWYER. geography. The applicant is only required to have been an apprentice. as intimated. X. or. and possess certain moral and educational qualifications. It is Considering the to this unnecessary. and of the United States. be a citizen of the State in which he applies to He must be practice. produce a certifi- cate from a law school or college.
and wonder why they are life so feebly equipped. they . When they first see the light of the pro- fessional world. like around in brought into professional new-born babes. They know almost nothing of the real office. one can put a log of wood in a machine. They are theorists and They have no clinical experience. and generally. without having been under the care or tutelage of an active prac- Modern methods of legal education are akin to the age. therefore. — — bloc. The preliminary education which they have received does not carry them beyond the point of their examination. Lawyers are machine made. they look astonishment. and when they embark into actual professional work. and mission of the lawyer. and it comes out a box of matches. withal. and lawyers are manufactured en titioner. out in their professional journey with a keen sense of their own incompetency. students. moreover. They are intelligent enough many of them savants and remarkably bright men. The aim of law schools and colleges is to manuHardly any of the facture the lawyers quickly. start Young lawyers.THE EDUCATION OF THE LAWYER. and the sole aim is to carry it safely through the final examination. By a patented process. instructors or professors have any practical knowledge of the profession. 55 before the Examiners of the Court. and he is a lawyer. but each of them has a large class of students on his hands.
authoritie that maner and fourme aforesaid. being not a tice as coming. to set uppe use or exercise anye Crafte Misterye or Occupacon. any occupation were required to serve an persons practicing apprenticeship. based upon an oath. hereafter referred to. 5. has at all times been to place limited restrictions upon admissions to the Bar.56 THE AMERICAN LAWYER. baker. or broker. and on whatever 1 scale. Eliz.. tailor. for obvious reasons. for anciently. as follows: Stat. nor to set anye person or woorck in suche the least as Apprentice. where a certificate. in after the first daye of Maie next not bee lawful Misterye Arte or Occupacon. No duly certified applicant can practice the profession of law without such a license. 1 This was not always the law. which they have been licensed to hold. While any person may set himself up as a car- penter. as evidenced first by rules of the court. and afterwards by statute. is XXIV. nowe used or occupied within the Realm of Englande or Wales. 4 (1562-63). powers. for it shall worchman at this daye any pson or psons. orels having served as an Apprentice as ys . and duties of the office. Chap. or pursue any other legal occupation (except that of medicine. The student must first obtain a license from the court. the policy of the law. Sec. in his relation to the court and the community. banker. he desires. This at once gives the lawyer an official position. as will be seen by all the Statute which I quote. is necessary). by Manuell Oocupacon. other than such as doo now lawfully use or exercise any Arte Misterye or except he shall have been Appren- ys aforesaid. little have —certainly no adequate —idea of the functions. agent. Except he shall have been brought uppe therein Seaven Yeares at occupie "And the be it further enacted aforesaid. in any place.
viz: the lawyer was regarded as the origin of this of the court." acting under the supervision and control of the latter. the associate. if ever. with marked good sense.THE EDUCATION OF THE LAWYER. are authorized to represent themselves." it is generally in connection with some effort to punish him for a dereliction of duty. The court. The courts accordingly mark out of the qualifications these officials —their own officers. used in its original and just sense. therefore. and justly — they rarely avail themselves. he is now and he became. The profession of the lawyer. suitors." offending or dooing the contrary . when a lawyer is styled "an officer of the court. shall or will become a Journeyman. stands out distinctly and separately distinguished from other trades and occupations. or bee hired by the Yere. Litigants 57 who might otherwise complain. and the reason for it is as strong to-day as when the office was first created. viz: to signify that he aforesaid. "an officer of the friend. and this term is rarely. upon payne that willingly shall forfeit and lose for every for default fourtye Shillinges every monethe. as styled (but for different purposes than those for which the distinction was first applied to him). In these days. and to advocate their own causes a privilege of which. clear. He starts on his professional officer of career marked is as an official —an the court. the adviser.
the ten- dency of the courts -everywhere is not to regard the lawyer as an arm of the court. to furnish him with 30. but if his . Still. Undoubtedly they can always be called upon to assist and aid the court.58 is THE AMERICAN LAWYER. are not any more numerous than they were at one time in Naples. and esprit de corps of the profession. is So far as any demonstrated policy are five. and assist the court in the administration of justice. Addison is authority for a story that when Innocent the Eleventh desired the Marquis of Carpio. or five hundred. in every community. They may be said to always rest under the command of the court. Still. the lawyers are officers of the court. Another feature of the subject is. in existence. so much as to hold him at arm's length —to treat him as one ready and willing to accept. they that the profession is full to repletion. aid. if not actually seeking. or five concerned. rights to which he is not entitled. This liberality has been appreciated. that no restrictions are placed upon the number of lawyers who may practice the profession. the public seems to be indifferent whether there hundred thousand lawyers. the Marquis answered him that for his swine he could not spare them. Indeed. the effect of which. upon the manners. culture.000 head of swine. bountifully The lawyers have increased to such proportion. can be readily imagined. an officer to advise.
turn their professional labors and merchandise system. through the influence of nepotism. or suppositions drawn. has frequently sole incentive to his adoption of the legal profession. 59 Holiness had occasion for 30. 2. the effect legal incompetents. The fact that social or political influence. with more fortunate brethren. 429.THE EDUCATION OF THE LAWYEK. No statistics. educational. still others. as for society. unlimited blessing to a certain class of lawyers. could secure him a snug been the berth. he had them at his service.000 lawyers. They both suffer. The enormous increase in the number of corporations has been an into a regular business or partnerships. or knowledge. finding nothing to do. . or practical ability. is as bad for the latter. p. as to the i number of law- " Remarks on Italy. lacking the ability. their intrusted to them. in a few years seek other employments. furnished a delightful haven to many a lawyer. and various by associations other kinds of occupations." Vol. 1 The Marquis must have of turning out hordes of had a large estate! Of course. with natural. otherwise unequipped. I believe. These corporations have. Hundreds of lawyers. to perform the work ships. many of them eke out a meager and starving existence by filling clerk- and other subordinate positions. have ever been made. in a corporate position.
so that the gates are thrown wide open. ever be placed upon the number of lawyers entitled to practice. to the very class who are least qualified. to encounter the steep and stony paths that lead to genuine success. there would be fewer candidates. and access made easy. in the supply very largely exceeds the demand. language of political economy. another book . when they have passed through to admission. all go to swell the ranks. which offers inducements there are now for individuals to become members of the Bar. the that.60 THE AMERICAN LAWYER. My purpose at present is only to draw attention to the effect of all this on the lives community. mistaken notions of the true nature of the profession. As long as a course of study exists. No limit should. There are other concurring causes. prentices were fully convinced that to become a lawyer meant serious study and application. with a mere smattering of intellectual training. Young ambition. or perhaps could. yers necessarily required to transact the business of the country. the profession will be filled to repletion. As to its personal effect upon the and fortunes of the aspirants. but it is generally agreed that vastly too many for such service. the pride and vanity of parents and friends. of course. except by ordaining such rigid preliminary studies and qualifications as would act as a If candidates enrolling as legal apdeterrent.
and the table compiled from the same source shows the following result in ensuing decades: Year . might be written.939 practicing lawyers in the United States. It is 61 enough to say that no miseries are greater than those which follow the mistaken choice of a profession.THE EDUCATION OF THE LAWYER. The census shows that in 1850 there were 23.
the Federal Courts. a if he be admitted matter of comity. but I think to the discredit — — of the profession. to the State in which he admitted. as a rule. importance than those which he owes his clients. he only acquires a smattering dition of the law. if not of greater. them. because litigants do not. and who has been licensed to practice. the lawyer's duties to the government are of equal.62 THE AMERICAN LAWYER. But. cannot be presumed to comprehend any of the principal branches of the law. is The sphere and to or confined. undertaking either separately. of the lawyer's operations is limited. or in conjunca privilege very fretion with his law practice quently availed of. although. and to turn upon the community hordes of incompetent practitioners lowers the standard of the profession. It may be said on the other side. At best. as I shall show. he frequently appears in courts outside of his State. as therein. deprives of of some the Bar of the learning and respect which are so . that any lawyer who has simply passed through the formal system of study prescribed. that nobody is injured by this ignorance. employ young lawyers. who fight and struggle along many years before they attain the full confidence of clients. own In the present inflated and complicated conit goes by the mere saying.
and of England and France. The profession and the community alike (indeed. A professional morale the student. the results become obvious. in this respect they may be considered one and the same interest) are entitled to some better guarantee. meeting with the same quality in those who are delegated to examine. The forms which are given below practically illustrate those of all of the States.THE EDUCATION OF THE LAWYEE. is quickly ascertained and understood. This oath throws some light upon the lawyer's real functions and duties. with such an initiative. can be in equally shown to by the work accomplished previous examination. but where the tendency of the whole system is to produce a class of in- competents. but these. Great talent and strong bias. and nullifies the influence which naturally possesses in private and public affairs. 63 necessary to enable it to defend and exercise its proper position. it is vain to say that the evil corrects itself. . in the individual may overcome all diffiit culties. applicants and examining boards standing on exactly the same level. that the student's real education begins after admission. towards the profession. The oath which the lawyer takes before entering upon his official career is slightly different in each of the States. with their results.
as the case may demean myself. and that you will behave yourself in the office of Attorney within this Court. according to the best my ability. do swear that I will truly and honestly demean myself in the practice of a So- . as an attorney and counselor of this Court.64 the american lawyer. United States Supreme Court. 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. . Court as to the client . according to the best of your and with all good fidelity. York. You do swear Constitution of (or affirm) that you will support the Constitution of the United States and the this Commonwealth. . uprightly and according to law. that you will use no falsehood. I. and that I will faithof fully discharge the duties of the office of attorney and counselor-at-law. I. as well to the for lucre or malice. . and that I will support the Constitution of the United States. Pennsylvania. New I. (or affirm. nor delay any person's cause learning and ability. England. do solemnly swear be) that I will (or affirm.
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.
NATURE OF LAWYER'S VOCATION. or by whatever name the original process may be In called. — — lawyer approves the client's demand. the most powerful magnate. the lawyer's vocation has been enfeebled. apart from this fact. 69 While. the he is the day after . 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. He is the sole officer authorized to cause a civil action to be begun. a legal processes flow. date. fact. or the most influenIf the tial citizen or corporation. writ. The lawyer's mandate the summons. as a supernumerary of the court. is the fountain head from whose source all of client. signed to a summons. At the instance cial He he becomes the offiauthor and creator of all judicial proceedings. yet the defendant must obey. the action unjustified. — commands the appearance in court of the highest or lowliest individual in the land. The demand may be unfounded. or in A lawyer. is the beginning of legal proceedings. veriest tyro in admitted. process which will bring into court the proudest millionaire. if not totally destroyed. or cause to be issued. New York the lawyer issues the original man- His name. in law. he is an officer of very great authority and power. the whole proceeding utterly without merit.
property. it its machinery . serenely." and one whose authority is hardly exceeded by that of any other official. exempted from acts which often. can be. His ordinary mistakes of law. easily.70 THE AMERICAN LAWYER. the Courts computed by consulting the records of which show the number of suits — finally dismissed. is forsooth. all suits are begun or defended. demands of a professional it blackmailer. we find that it arises from the necessities of politi- cal organization. suit is and expense are involved. cannot be made the basis of a legal demand against him. or judgment. secure from liability. of litigation. How many of such mistakes are made. may in which character. known to any system Upon the ipse dixit. and although after years. or rests dormant until some one sets self-acting. An individual who possesses powers like those which I have described. tittle of justice or the profession may. ment of the lawyer. Inquiring into the origin of the lawyer's power. through his negligence or design. yet the lawyer dismissed sits. the as unfounded. an "officer. without a right. or judgof government. The law is not automatic. have caused untold mischief and damage. in his office. how many causeless actions are instituted. summon the worthiest and purest indi- vidual to answer the be.
—the criminal and the is civil. . in motion. . enunciated by the supreme It says to its subjects power for (as of the State. who put in motion the machinery of the law. human government. ab— "thatthe which in doth moderate the force and power. The law is naturally separated into two great systems. but until somebody complains." In the concrete. it is When a crime committed. a law is a mere brutum fulmen. Murder goes unpunished if it is concealed. Blackstone puts it). When we ascertain the reason and philosophy of the subject. or rules. are the shalt not do this or that thing. of certain principles. regarded as an act aimed at the entire community. violated both by individuals and communities. stract. that given by Hooker. it con- being of God is sists of declarations. that which doth appoint the form and measure of working. a Law to his working. and often are. theft escapes notice if no prosecutor appears.NATURE OF LAWYER'S VOCATION. Now. is 71 A good definition of Law. we begin to appreciate the full scope of the lawyer's powers. the official and authorized agents. "thou shalt or thou These rules may be. and manifold civil rights are invaded where the party injured seeks no redress from the courts. as applied to political existence. and so ." lawyers. the same we term a Law the very.
a complaint and an answer. parts of a suit. the complaint. such as policemen. viz: the summons which brings the parties before the court. and district attorneys. the of the multiplicity of interlocutory and inter- vening orders and proceedings. sheriffs. the judgment. which are met with in ordinary legal and equitable actions. coroners. the execution. magistrates. It strikes at the But when a civil injury is inflicted or property. start the wheels of justice which bring the offender to punishment. 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. these orderly machinery of the law must exist. constables. which litigants pass through. a judgment and execution. the lawyers intervene upon person and set the machinery of the law in motion. and all laration. the trial. A crime inflicts a blow upon the whole autonomy people. before a final judicial settlement of their rights is reached. this — — . There always must be a complainant and a defendant. or dec- answer or plea.72 THE AMERICAN LAWYER. The "machinery of the law. by the service upon the delinquent. a hearing and a decision." does not only mean commencement of a suit. of the State. the appeal. soon as its existence is known. sworn officials. Wherever justice is administered. the issue.
the law of quate remedy to the parties injured. and without them. are coeval with the administration of justice. and although they are called the "forms" of the law. if the that machinery is properly and regularly run. but without the necessary appendages for enforcing them. are necessary and substantial parts of practical jurisprudence. unless by a relapse to methods purely Without the ability to give an adearbitrary. and. of Now. all of the intricate they arrange the movements. exact justice between litigants. though in a primitive and summary way. after a fair would be nothing but a series insipid declarations. they are absolutely essential to the correct determination of legal controversies. fast or slow. so they operate harmoniously together. these forms are lowed. 73 fol- Even in a barbaric state. hearing. the law simply would be a bundle of abstract principles. is reguThey study lated and watched by the lawyers. conduct. and they are designed and intended to produce as a whole. declaring rules for human and directing their observance. which run after they are set in motion. The orderly parts of a suit. and delicate mechanism. In a civilized community these forms nicely are and delicately adjusted to each other. . Hence these orderly steps in a suit.NATURE OF LAWYER'S VOCATION. every motion the wheels of form. therefore.
troversy is lost sight of. workmen. primarily charged to determine. therefore. the fencing. however much own creation. is amazing. in a cloud of technical sparring and conflicts. as it exactly describing the citizen. very great. with their motions and counter motions. The moral responsibility of the lawyer becomes. the suit becomes one of public concern.74 like skillful THE AMERICAN LAWYER. between the institution of a suit and a Judgment. in advance. and the lawyers come to the front. the his use the word "Subject" advisedly. . whether his client has a just claim or defense. Directly the machinery is set in motion by the lawyer. and whole course of the law. The foregoing suggestions introduce the lawyer in his first great official relation to the community standing between the Subject and the — I Law. in his relation to Law. the put in motion. they learn to direct. and his office assumes an importance which superficial inquiry would not ascribe to it. no matter how small or great the amount. The legal which is had under a Code. when one remembers that Courts exist to render speedy and exact justice. is may be the work of Upon law the lawyer's advice and judgment. until the real concontrol. He is a kind of judge preliminarily He is — inquiring into his client's rights and duties. The clients disappear.
is the law and lawyers that suffer most. and the evil effects are felt all through the body of the law. he defeats the objects of the law. or the evasion or denial of a legal claim. to the effects of his he advises the commencement an un- just suit. involved.a NATURE OF LAWYER'S VOCATION. to separate the chaff of fraud. in the settlement. or jury. In the commencement of need. he prostitutes and brings its administration into disrepute. suits. Client and counsel become involved in a common atmosphere of suspicion. and patriotism. or principle. of fact and truth. Law is "humbug" — . He poisons the founand contempt tain of justice at its source. fulfill to the former. all the 75 A judge. It rests prudence. The importance of the whole subject to the lay community is apparent from this purely material aspect of it. learning. a sense of its in adequacy to its ordained purposes. to the less latter it brings a shallow reputation for clever- ness. ally appears. if from ignorance. and a greater or its forms. or indifference. from the wheat action. largely and sincerely blended with contempt. For. exaggeration and doubt. therefore. degree of moral reprobation attaches to their In the ordinary judgments of men. it actions. eventu- forms of the law are involved and the public are taxed for the general expenses of the courts. the lawyer has of honesty. of dishonesty. with him to preserve the purity of the legal system.
It is hard to detect him. chicane. all his knowledge of the scope and influence of his profession. are brought into play. true objects. he is representing another's interest. deflect the course of justice. Sheltered in the garb of his The client. not essentially different from other scamps. should be fully instructed. in a litigation. but they are made in the name of the His education. in all of their duties and functions. insidiously and secretly. his training. prohibit him from uttering one word. and express statute. of lawyer a cunning scamp. the defenses. client. in each and every step. The lawyer's opportunities for good and for evil. passed in professional counsel. not of paramount importance that individuals who are clothed with such extensive powers. pleas. and defraud the law. and more to be feared. the pretenses of the the lawyer's are frequently own work.76 THE AMEEICAN LAWYER. and the lawyer's tracks and identity are swaUowed up in the personality of the former. And both public policy. are powerfully illustrated. and is not responsible for his client's morals or frauds. the lawyer can always. before they are permitted to Is it exercise them? Picture the baleful influence upon the law and . mere game the office. except that he is better protected.
diverting and stopping the machinery of the law. 77 society. ignorant of the principles of law. and chicanery.NATURE OF LAWYER'S VOCATION. and defame. only to defeat and evade the legislative will and public policy. defraud. and such talent as they may possess. experience. A great upon the financial moral responsibility promoters of that Company. who pays most for the service. with not ennobled. is a good illustration of one phase of the subject. and objects of their profession. badly educated. In the first rank. yes. and every device of cunning and deceit. of lawyers. in the lowest rank of the profession. selling their knowledge. and of their contracts. clothed with so much power. can be found many lawyers whose services are sought only to enable guilty men to escape punishment. by liberal of the scope and study or association! Picture the lawyers training themselves in a school of dishonesty. ability. minds not elevated. The formation of the Northern Securities Company under the laws of New Jersey. resorting to to gain their end! Do such lawyers exist? Do such practices prevail? Unfortunately. only to show their clients how to cheat. only to open a door for others to avoid the consequence of the civil law. without penalty or to the client damage. trickery. in the middle rank. I do not undertake rests . vilify. prostituting the forms of justice for gain.
S. The promoters were. S. neglect. not a penny's worth of property involved was located there. S. The promoters sought to thwart the laws those States. 166 Pipe S. and others not necessary Assn. to evade Statutes. A consolidation of the railroads. Not an individual of really interested in the affair resided in New Jersey. not a dollar of actual business was to be transacted there. there were several clear decisions of the Supreme Court of the United States.trust law of the United States stared them in the face in earnest protest against their acts. ter. measure or partition it. v. 175 U. or ignorance of public officials. Company was and sentiment of the country. Assn. . hoping. moreover. or the slothfulness. was a clear attempt to evade the laws of the States through which the roads ran. through the ingenuity of their lawyers. and organizing there. v. TJ. 171 U. blamable in this matfor they took their chances. S.. primarily. Freight v. and State and Federal 1 i U. 290. Yet they perseoverthrown by the vered.78 to THE AMERICAN LAWYER. Joint Traffic 211. & Steel Co. until their acts were Supreme Court of the United States. which showed them that their work was illegal. under the shallow pretense that the Northern Securities a mere holding Company. S. by going to the State of New Jersey. U. U. 505. The Anti.. embraced in that scheme. Addyston to quote.. and against the general public policy.
protect promoters. holders. corporations. 79 The decision of the four Judges in the lower court was unanimous against the Northern Securities Company. were overlooked. to the original scheme yet this dissension would have been avoided. as would have enslaved the finances and commerce of the country. say far — Examine its charter for confirmation of this result. vital aspects of the question. The statutes of New Jersey. and although this judgment was only ratified in the Supreme Court of the United States by four votes against three thus giving some pretense. stand as a shameful monument. If the Northern Securities Company had been upheld as a legal corporation. in favor of resist National and State Almost every law of that State. on the part of the Government I do not — — it was inadequately presented by design from it but. or color. if the case had been thoroughly presented.— NATURE OF LAWYER'S VOCATION. to cheat the general public policy of the country. has been craftily de- signed and built up. and each year new features to added to its corporation laws. themselves. in the hands of the promoters of the company. to the cunning of the lawyers in an effort to public policy. policy. through majority shareher corporation . not involved in a mere technical discussion. speculators. and New Jersey. The State coffers have been enriched by are it. it meant the placing of such untold power.
80 law. It lies in his power always to say. experience. who can and does work the greater harm to the community. In the case of the counselor. how wantonly he is violating his duty. and accumulation of statute. to which the lawyers can resort. have sought refuge from the public policy of the law. are accordingly limited. art. and by exposing and protesting. Public opinion is always on the alert. an asylum. for justification. His opportunities for accomplishing evil. to those cases where." The confused and contradictory condition. Shrouded in unlimited discretion. by skill. or sophistry. he acts in the under the public gaze. where rich and influential men. and general sentiment of the community. he. it . in the advice which he gives his client. away from the public gaze his machinations are in the dark. The business of the former is carried on in his office. and judge-made. has THE AMERICAN LAWYER. against unjust and illegal methods or results. is a perpetual asylum. but himself. law. no one need know. "1 was mistaken in the law or practice. however. unjustly. and are insidious and secret. in the court. overcomes the judgment and minds of the courts or juries. herself made Finally. as distinguished from the counselor. open — persuasion. it is the attorney. of all kinds — of practices.
81 acts as a counterpoise to the meretricious influ- ences of the dishonest advocate. many dishonest. One of the profoundest and most powerful reasons for divorcing the two branches of the profession arises from the above considerations. with which they may be practiced. they bury themselves within themselves. who. It is to be remembered. "Attorney and F . A litigant would be thus compelled to cross two The barriers before he could reach the court. necessarily. The names them. attorney would no longer be allowed to or defend. from the feeling of immunity from danger. pass through the hands of an independent counselor. his own cases in court. grow and strengthen. and when the time comes. or illegal claims. represent practically one office. and thus blindly invite a sometimes very rude form of resurrection. as a corrective. that all abuses inhering in any body of men. Insensible or scornful of extraneous opinion. sits in judgment upon the facts and law before so to speak. The work of the attorney must. they are presented to the court. prosecute.NATURE OF LAWYER'S VOCATION. where there are solicitors and barristers. and necessarily would become abortive by the refusal of an independent coun- selor to present Counselor" are although they still preserved in this country. He acts as a breakwater between the attorney and the court.
and eloquence. in the negotiations attending the settlement of difficult questions. the mouthpiece of his client in court. to be settled in court. in First. not strictly of a technical nature that is. the THE AMERICAN LAWYER.82 Here. . directly under the influence the In both relations. in the best interest of parties. therefore. but. his learning. which do not grow — out of misunderstandings. —where of he acts judges. He is also constantly called upon to exercise the best qualities of trained diplomacy. As it is counsel. transacted outside of court. He is employed as agent. as attorney in fact. as a higher capacity. or contests. genius. experience. the word implies. the lawyer draws to himself a multitude of other employments. lawyer is both an attorney and counselor. in becoming generally understood. wisdom. at every step. the attorney's practice comprehends all the business of the lawthe precincts of the yer. he acts in a more limited. free scope to his best is given endowments. second. As popularly understood. whose excited passions. and. as a purely advisory relation to his client. By virtue of his official character as attorney and counselor. have to be considered.
trustee. executor. ness. p. not only by the moral etiquette of the profession. 1 tensive field of employment. however. control. 83 and in a thou- sand and one other fiduciary relations. administrator. as I have shown. That it shall continue in its integrity i is an im- Ante. cleverness. and other private and the trusted adviser and friend delicate mat- of his client. His knowledge. who generally repose their lawyers in busi- the utmost faith and confidence. removed from in his The lawyer appears everywhere. an exbusiness. The confidence thus reposed is guarded. and there is all hardly an event of any magnitude in commercial affairs. He is family. but by positive statutory rules. ters. and is often consulted when the thoughts of the latter are in a chrysalis state. 46. which the ramifications and necessities of business create. A large share of this part of the lawyer's has been gradually usurped by corporations. judgment. and he becomes an important factor in moulding his client's final judgment. and. It constitutes the most sacred part of the lawyer's functions. are constantly drawn upon by in his clients.NATURE OF LAWYER'S VOCATION. experience. in which his co-operation and counsel are not solicited. and skill. and stages of business transactions. .
. that it behooves should not assist breaking it down.84 portant in THE AMEEICAN LAWYER. and it society. for its own sake. by vulgar and indiscriminate abuse of the character and functions of the lawyer as such. interest of society.
They are it. From the commencement of the government. the lawyers have absolutely dominated in the Federal and State Legislatures. AND IN OTHER CAPACITIES. the most interesting relation. In the analysis. Easily. THE LAWYER'S POLITICAL EMPLOYMENT AS A LEGISLATOR. which a lawyer holds to the community. most of is them engaged 85 and the Congress of the United States .— CHAPTER VII. useless and incoherent Statutes. therefore. of the lawyer's relation to the community. it becomes of parainterpreters of mount importance functions of to consider the duty and a legislator. they were the chief authors of the Constitution of the United States. outside of his technical occupation. As I have said. is that of a legislator. The forty-five State legislative mills (another has been since added to the list) are constantly grinding out Statutes. and of all the State Consti- tutions. the natural and necessary the guardians of it. THE DUTIES OF A LEGISLATOR.
The related. it is necessary that we should have legislators who understand their functions. in this connection. are the duties of a legislator? What are the qualifications which he should necessarily possess? Primarily. he should know the relation which a citizen bears to the State of which he is a — member. Primarily. and criminal. then. The subject requires separate treatment. is applicable to constitutional. This state of affairs produces two principal results: first. I can only say. —the legislators. the laws. To remedy these anomalous conditions. and. it must be charged to the individuals who make . many. as well as all of the branches of the law. it creates such uncertainty in the law as. Laws have accumu- with such rapidity. mark cial. that the jurisprudence of the United States is in a condition approaching inextricable confusion and doubt. millions each year. practically. the same occupation. to make justice a thing of doubt and chance. in the second place. He must understand the origin and purpose . that the responsibility for all of this unnecessary accumulation of Statutes rests somewhere. enormous expense amounting to many. the lawyers. What. commerother.— 86 in THE AMERICAN LAWYER. it entails upon liti- gants and the Federal and State Governments.
to conceive a condition of natural unrestrained liberty. and happiness. of society ical 87 of the principles which underlie politgovernments Federal State Municipal Looking back into a period before society was organized. relinquished his natural condition and liberty. in the effort of the mind. becomes a subject of some government. one is remitted to an age of poetry and myths. he more or but voluntarily. consciously. he can never divest himself entirely of civic homfor. but he can never enjoy natural or absolute liberty age. practically. or wherever he .. without any choice or consent of his own He may afterwards expatriate himself. was and own protection. it. in the human mind and experience. that. — THE DUTIES OF A LEGISLATOE. he eo instanti. comfort. For. briefly. is the supposed origin of human government. 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. natural liberty has ceased to exist — perhaps. never did exist. his fellow and sought refuge men. wherever he is born. and transfer his allegiance to another State. in fact. in organized association with This. when a person is born into the world. at all. So deeply has this view been rooted. and.
"In return for the abdication of your natural rights and freedom. and the latter gives allegiance. every babe is born into the world with a political halter around its neck. In a word. agree that there implied contract self to become a part all of the State — — I will support the State in emergencies. notwithstanding this fact." Hence. The citizen says. by which the former grants protection. because this forms the proper and only true basis of legislative operations.88 THE AMERICAN LAWYER. But. and I will only restrain so much of your natural liberty. withal. and. may roam. I will protect you and your family and your property. very simple. substantially. we can appreciate that most admirable definition of civil or political liberty. "I will give up my natural liberty I will bind my- writers all. Apart from the impossibility of tracing the origin of Society. he is always amenable to some government. the legislator must go back to the supposed origin of the social compact. The State rights are his advantages. as Burke says. This original social compact is very important." in reply. as is necessary to protect you. is an between the sovereignty and the individual. in substance. and your fellow citizens. by Lieber: "The natural liberty of mankind so far restrained by human laws as is necessary for the good of society. his says. ." Or.
for the Government. that country The is best governed which is least governed. in all normal and sound conditions of society. The fundamental idea is> to leave the citizen with as as is much natural liberty. Here is the secret —the corner stone — of all legislation. to make as few laws as possible for. laws are to be passed except those necesthe subject's protection. protection. and his fellow men's.THE DUTIES OF A. tion of the other members of society. Hence a legislator must keep constantly before him the origin and purpose of the social compact. and wherever these elements exist. unequivocal (not speculati-ve. not the people . except so to enjoy all of his natural as restraint is far necessary. 89 as is "Only necessary so far restrained for by human law of the good is society!" Conse- quently. or distinct. Government exists for the people. LEGISLATOR. not partial) benesary for fit No or advantage. for his own. "Is this proposed law necessary? Is it just? Is it for the true interests of . on the contrary. compatible with the interests and protecIn fine. the citizen liberty. individuals evade and escape from the operation of laws. It introduces confusion and uncertainty. He must ask himself. A multiplicity of laws does not produce good government. annuls and destroys its efficacy. but.
elles ont des rapports entre elles. elles doi- vent se rapporter au degre de liberte que la constitution peut souffrir. unnecessarily. a la qualite du terrain. a leurs moeurs. 1799. Ill. these questions.* 90 THE AMERICAN LAWYER. a leur commerce. Livre I. avec l'ordre des choses sur lesquelles elles sont establies. c'est dans toutes ces vues qu'il faut les considerer. What learning what experience—what industry. and whether the constitutes new or proposed law remedy. a leurs manieres. Basle. any : portion of the natural liberty of the subject?" As Montesquieu says "Elles doivent etre relative au physique du pays. A. the mischief involved. or the greater portion of them? passing it. a sa grandeur. avec 1' object du legislates. 106. . brulant. a la religion des habitants. L'Esprit Des Lois. chasseurs ou pasteurs. ou tempore. Enfin. an easy task or decide. it — is not always involves a knowledge of the existing institutions and laws. a lawyer requires who would faithfully adequate an — i"De ed. au genre de vie des peuples. By shall I take away. 1799. and its relation to the others and the whole. a leur nombre. a leurs inclinations. Chap. laboureurs. au climat glace. a leurs richesses. a sa situation. p. a study of each great leading industry and interest. the people." To answer. elles en ont avec leur origine. 1." Vol.
or State Legislatures. exigencies of society or situation. He would acknowledge that legislation. How many- which now confuse and perplex the lawyers. and judges. fulfill their real duties. the field of the lawyer's action is still enormous. who under- stand and laws." p. but simple. springs from the Bar." Having satisfied himself of the necessity. the legislator must — 1 — — » " Sharswood's Legal Ethics. would have never existed if these fundamental. popular demand. fulfill 91 the duties of a legislator! And contrasted with this standard.THE DUTIES OF A LEGISLATOR. good or bad. the justness of the law. the utility. que sera-ce d'un grand legislateur. Nothing instructive and interesting in this conis more nection than the seventh chapter of the second book of Rousseau's "Du Contrat Social" "Du Legislateur" in which he exclaims: "Mais s'il est vrai qu'un grand prince est un homme rare. 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. how deficient the modern legislator is! How few there are of legislators in the Federal. would have been avoided. . how many thousands of books and statutes which now encumber the shelves of the Law Libraries." And if this dictum be thought too broad. yet with every abatement that can be made. 25.
an existing law be proposed. brevity. 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. the its just- must determine its necessity. Another important feature of an American legislator is. that he must compare all proposed laws. 1826. precision. propres pp. compact above and of all the other considerations If an amendment to bearing upon the subject. This involves an accurate knowledge of these instruments. perfect clearness. Why is it that the most profound lawyers shrink from drawing statutes? Because there is no task so delicate and difficult. to be covered by the legislation? Simplicity. and knowledge. the principle. ed. he must know the in the light of the social 1 described. est la humaine. To sum up: legislator ness. . Chap. if a new law be proposed. humaine. then prepare Here he has need of the greatest skill. it. must here be observed. Ill.92 THE AMERICAN LAWYER. en tant qu'elle gouverne tous les peuple de la i " La " Elles doivent 6tre tellement raison terre. "DeL'Esprit Des Lois. what words shall be selected to express accurately and the thought. with the Federal and State Constitutions. What is the old law? sity? What What is is the evil? What is the neces- the remedy proposed? From clearly the infinite catalogue of language. the facts." Livre I. Loi. que c'est un tres grand hasard si celles d'une nation peuvent convenir a une autre. 135." Montesquieu. en general. experience.
v. Chap. and is void. 4. — Eockwell 2. finally. below. or repairs made upon a vessel engaged in foreign commerce." "An act to authorize the construc9. 1862. is void. without judicial process. 35 N. unmistakable. L. Kermit. in the State of in the New York. and unconstitutional legislation. Y. of the Constitution of 1846. and he be able to put the proposed legislation into clear. 482. 302. L. unnecessary. alone. and unequivocal must. since 1862. 1863. The People ex rel. 459. 93 and the remedy. 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. 1 1. 554. is unconstitutional. and a bond given pursuant to the act to release a vessel detained by virtue of an attachment issued there- of under. Unconstitutional so far as it authorizes the seizure and sale. is the cause of the unwise. Chap.— The act of 1862 providing for the collection demands against vessels. language. a large number of cases which show how constantly the courts have been occupied. Bohmer Haffen. Chap.— Section 1. Poole 3. 1 work of declaring Statutes unconstitutional. Y. of chapter 217 of laws of 1866. — Act unconstitutional v. L. the mischief. Sec. . Chap. old law. tion of a railway risania. I cite. 59 N. v. voluminous. of animals found trespassing within a private inclosure. which now fills our stat- The failure to observe these rules. 1866. 57. so far as it gives a lien for supplies furnished to. L. is in conflict with section 18. 390. and tracks in the towns of West Farms and Morin part. Y. all ute books and piles up our law books mountain high. 217. Nearing. 361. 161 N. of article 6. 1862. Bull. v. Y.THE DUTIES OF A LEGISLATOR. 48 N.
Palmer. 7. When one adds to this record. appeal from the award of commissioners. 8. H. A law tional. sioners. 7) declaring that the compensation for property taken for public use shall be ascertained by a jury or by commis- — In re Vil. 1866. —A — N. Laws of imposing an assessment for a local improvement without notice to. 2. the court may increase or diminish the compensation. 1. & O. 619. Chap. 1868. 9. Provided that the supervisors of the counties of Erie 6. Opening up further The provision of said act (See. is unconstitutional and void. 74 N. for the pur- — .. Middletown. Sec. is violative of the constitutional provision (Art. 196. 9). Sec. Y. or an opportunity to be heard. v. 77. Co. 1.94 THE AMERICAN LAWYER. as the said commissioners should certify to be necessary for the completion of the bridge. and Chautauqua should assess upon their respective counties a moiety of such further sum. Chap. 217. of 1870 in relation to the city of Albany prescribing that. on the part of the owner of the property to be assessed. — People ex rel. statute attempting to validate L. to the establishment of an in violation of the Constitution (article and void. a void subscription to capital stock of railroad unconstitutional. L. Yan Horn. Y. R. v. of the Courts of all the States of the Union. school fund. L. Stuart v. Sec. Amended by Chap. Y. 1869. The provision of the act 10. 1870. 57 N. 84. Y. 1869. The Board of Supervisors of the County of Chautauqua. Lee. not exceeding $10. People Allen. 1868. 4) providing that on 5. Chap. L. and in the Federal Courts. v. M. 43 N.000. 42 jST. the aggregate adjudications. 4. 7. and a hearing. the list becomes appalling. 183. 473. has the effect to deprive him of his property without due process of law and is unconstituL. 82 N\ Y. 1870. 404. 10. Y. Chas. L. etc. — An act of the legislature appropriating moneys from common is the capital of the astronomical observatory. R. to a like effect. Sec. Tit.
People 12. L. 34 N.— — THE DUTIES OF A LEGISLATOR. p. from whence are to be drawn three. 1871. 66 (right of appeal 694 (Village Act). etc. Y. 56 N. the common council shall nominate twelve freeholders whose names. 1870. by L. Jason Fairbanks. T. 942.— Amendment to L. V. into the history of the enactment and repeal of unnecessary statutes. People 13. 809. on town without consent. as amended from award of jury of dam- ages for street opening on giving bond for costs) invalid— as taking witbout process. Chap. and proceedings taken thereunder void. are to be placed in a box. 365. as the section itself. 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. Y. L. 1869. Menges 11. 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. Board. 14. 71 N. 714. 75. 1894. L. 95 investigation. Board. 291. who shall be appointed commissioners. 1893. 694. 59. on separate ballots. was unconstitutional and 588. —Legislature has no power to impose debt Thompson. so far as it relates to the confirmation of assessments. 694. 1878. Y. Chap. . 65 N. etc. Warren. 291. 810. v.— employ alien. p. Title 7. 513. 151 1ST. Town of 15. 2. City of Watertown v. is unconstitutional. T. p. 151 N. as amended by L. Sec.. 1871. v. 374. as Crime for People city contractor to amended by L. Titlb7.. prescribing qualifications for a jury to assess damages for as such a jury is not that required by Constreet opening invalid — stitution. Chap. void as infringing perS. v. Chap. sonal rights and due process of law. Chap. City of Albany. Chap. Chap. 1870. See Horton v. 75. L. void. L. v. Chap. 622. Chap. 1870.
1880. a joint contractor shall not be discharged upon his death. 569. 1876.96 lation THE AMERICAN LAWYER. was a pastime. 48. as the effect thereof is to destroy the negotiable quality of the bonds. Pboc. erty without process. L. 452. Code Civ. as depriving of lib- for refusal to answer controller's questions. . 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. 59. Y. its passage. v. and so it impairs the obligation of after contracts. Manhattan Savings Institution.— The provision of the act of 1873 authorizing the taking of lands for the purpose of such an association. 711. Bennett. Y. N. C. 93 N. 758. Providing that estate of 18. and thereupon giving the latter exclusive jurisdiction thereof. upon delivery by it to said institution of duplicate bonds. 60 N. Sec. Code Civ.— The provision of the act of 1880 (Sec. 1874. 17. L. L. 16. does not affect contracts — made prior to ST. Assn. Sec. Randall 19. In re D. L. 90 IS". and judicial conflict! " Justinian's task in reforming the Roman Law. L. compared to the herculean labor which is devolved upon the lawyers of the twentieth century. — 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. 1879.. which by its terms discharges the city of Yonkers. 77 Y. and an order made by the Superior Court for the purpose of making such a transfer was void. v. Sackett. 480. Chap. Otis. is unconstitutional. one of the greatest undertakings of ancient history. 20. 545. — Committal for contempt void. Chap. 1873. People ex rel. 204. Pboc. 4. by proceeding in invitum. 856. Sec. Alexander v. Y. Y. In re Grout. S. Chap. 4. 66 is unconstitutional and void.
92. 107 N. Y. The legislature has no power to deny. was unconstitutional and void. Co. — Rochester & C. v. Chap. 92 N. L. Turnpike Eoad Co. 96 N. 42. 58 N. 1882. Code Civ. Y. 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. for any cause. Chap. 1041) in regard to the selection and drawing of jurors in the city and county of Albany. declaring that the determination of commissioners. 1880. L. to a party who has been illegally deprived of his property. 681. Chap. B. Assuming the said act not to have been reported by the commissioners appointed by law to revise the statutes. 1881. the provision of the act of 1880 in reference to underground street railways. Joel. the said act is. 22. and so not within the exception (Art. Petrea. & M. Y.— The provision of the act of 1881 purport23. as amended in 1881 (Chap. 1440). therefore. 582. Laws of 1881). 190. As applicable to such a road. In re Eureka Basin. ing to authorize the E. Y. Chap. 128 N. Act prohibiting Turnpike Co. 128. In re N. Y. Chap." is unconstitutional — and invalid. 42. unconstitutional and void. Dist.— THE DUTIES OF A LEGISLATOR. access to the constitutional courts of the State for relief. 26. 532. S. relating to title to real property 24. 25. Pkoc. 637. Co. sold on execution. People v. Y. K. L. Sec. to acquire title to lands by proceedings in invitum. 1882.. 3. 410. — 21. Tucker. W. (Sec.— The provision of the New York Consolidation Act which declares that no compensation shall be al- G . etc. K.. therefore. 25) exempting from the operation of said provisions bills so reported. from charging toll for bicycles held unconstitutional as taking of property without due process of law. 1881. L. Sec. 346. L. confirmed by the court. Gilman v. as to grand jurors. " may be taken in lieu of the consent of said authorities. 677. — Purporting to amend the provision of the Code of Civil Procedure (Sec.
1884. Pleas from appointing Yutte. by the Act tional. in certain cases.98 THE AMERICAN LAWYER. 30. L. 90. Chap. not injurious to the — reason that community. Chap. Laws of 1885. it is. in some aspects. 1885. 99 N. 38. Scott. Foster v. 202. 577. Chap. prohibiting the manufacture or sale of any article " not produced from unadulterated milk. 7. 183. ment as enables him to comprehend the wants and necessities of his fellow men. Y. L. Pboc. 272. 458... 98. Y. Sec. a clerk as a referee is un- constitutional. Parmenter v.— Code Civ. — A legislative enactment which 28. 1884. does not give such reasonable time. and not fraudulently conducted. Court of Common v. Chap. article of food. Popflnger In order to sustain an indictment under 31. 377. from a period without limitation to a few months after the passage of the act. amended by chap. People Marx. Y. 154. Y. a higher term than even Suppose the Bar would seriously statesman. 98 N. 4. public health. Y. 183. Chap. by prohibiting the manufacture of cigars and preparation of tobacco in any form in tenement houses. 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. L. absolutely prohibits an important branch of industry. 60. 1884. The State of N. and may reduce the price of an v. The act entitled " An act to improve the 29. L. or cream — . and so is unconstitu(Sec. 102 N. Y." etc. In this respect. 672). Sec. is — unconstitutional. so far as it prohibits its In re Jacobs. and so is unconstitutional. A statute cutting down the right to commence an action upon a cause of action then existing. 135 N. the provision of the act of 1885 (Sec. solely for the it competes with another. 136 N. 27. 1885. Laws of 1885). is unconstitutional. L.
is un- Cromwell v. Levy v. 32. 1887. authorizing sales of lands for unpaid taxes in the county of Westchester (Chap. 123 N. T. 1887. the manufacture of an article simply "designed to take the place of butter " is not an offense. Substitution of indemnitor in action against sheriff. L. Chap. Y. 504. 271 and Chap. Chap. — People v. 103 N. Marcus. 1. T. L." it must be made to appear that the article manufactured was.— The provision of the act of 1887 confirming sales of land for the nonpayment of taxes theretofore made under the act of 1874. compelling em35. 1887. 160 N. Unconstitutionality of Mandatory Provision. 610. T. Laws — The provision of the Penal Code of 1887) prohibiting the sale or disposal of . Code of Civil Pbocedtjbe. 691. (Sec. ployee not to join labor organizations. not necessary or essential to the article itself. Laws of 1874). 1886.— The acts of 1886 providing. who did not sub- stantially fulfill these requirements. throw its 99 whole influence to prevent the election of individuals to the Legislature. void because constitutional. 310. and the appointment of a receiver therein. Chap. 36. so far as it seeks to validate a sale. amended in 1887. as deprivation of equal protection of laws. 34. 257. added by Chap.THE DUTIES OF A LEGISLATOR. 388. made in imitation or semblance of butter. O'Brien. are unconstitutional and void. made under 474. 97 N. a void assessment." which is " People v. 171a. MacLean. as so much of the provision is unconstitutional. 111 N. and for the winding up of its affairs by suit brought by the attorney general. Y. 688. Dunn. People v. 691. Penal Code Sec. Section 1421. Arensburg. L. by the use of ingredients. Y. Chap. in case of such a dissolution for the taking away from the company of its street franchises. 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. a misdemeanor. 33. 627. L. 185 N. from the same. 335a. S. void. 322.
100 THE AMERICAN LAWYER. T. Gillson. 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. Chap. Kyder. prize. (Sec.— Amended by L. 43 N. premium or reward to the purchaser. 294. 29.— Providing that no one but Attorney General shall proceed against insurance company. 1890.t. S. Constitution. 1890. Barckley. sale has been paid into court or deposited People ex rel i>. 871. amended by Chap. 400 (Insurance Law 1892. who became such power to Greel v. 59. how are they to be made available in a system like ours? These are the real questions. People 37. "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. is unconstitutional and void. Y. 389. void. Sec. Chap. Laws of 1889) authorizing the Special Term.my offer or attempt to do so upon any representation or inducement that anything else will be delivered as a gift. 124 N. 3. Sec. as to policy holder act. 500. as in v. Sec. 109 N. 56). . The Provision op the Code of Civil Procedure 39. L. 1893. movement? How are they to be But where would they find them? known? When found and known. L.— Prohibiting work by convict for sale is invalid as to contracts made prior to Constitution. 39. Y. Bronk v. 382. Ap. Chap. S. Y. Conde v. 258. City. requiring assessment for street paving to be apportioned according to foot frontage. 57 N". 400. 1582. L. Y. 190. Equitable. 1889. 40. Charter of Schenectady. an action for partition. 164 N. Withany article of food. is void as taking without process. 38. or . Chap.
Y. 488. 58 N. Board of Supervisors. void. St. 2. Agricultural Law. etc.— THE DUTIES OP A LEGISLATOR. People 44. void. 112. 937. — Authorizing construction of a cremator for destruction of garbage. 1015. — Conferring upon women the right to vote unconstitutional. 1892. 543. 214. 431. Hilton. Sec. Windholz. 141 N. People 48. 56 N. S. 467. — Unconstitutionality of act for payments N". as taking without due process. Chap. is void under Const. to drafted men by taxation.— As to committal of female in- ebriates without judicial trial. v. — A statute making void a contract entered made the by a citizen of one State with a corporation of another. and that cider vinegar made by State farms shall not be deemed such. 1892. S. void as discriminating. Co.. Hargreaves 46. 1893. Chap. Chap. v. 8. 45. Chap. as denying equal protection of laws. Amend. Chap. 996. void as to imported fish. Buffalo. Secs. U. 338. Chap. 86 N. Mass. as taking without process. Y. 090. L.. Sec. 47. S. Y. v. 41. S. 1892. 1143. L. Sec. 112. it is nevertheless true. West. S. that prototypes of the best class of legislators. Chap. 14. L. defining adulterated vinegar. Saviours San. 1892. 42. Y. S. 62 N. 110. — Misdemeanor to possess during certain seasons and inflicting penalty. do not always appear. 212. into v. fish v. Chap. insuring property within former State. unconstitutional as not providing . 101 out an intentional impeachment of the form of democratic government. 1893. L. and to be performed in the latter. 687. Mat. for school commissioners is In re Gage. Y. 1892. Y. Fire Ins.. 15. 664. 50. 159 Bush v. People 43. L. Y. L. L.— Prohibiting suits by foreign corporations without a certificate. 1892. 56 N. 376. L. Harden. in the recognized legislative assemblies.
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.
S. providing for committal of witness before commissioner of foreign court. Joel. by which a company's earnings are reduced 25%. as impairing obligation of a contract. 59 3ST. 48. 346. — Statute requiring appointment of person — Chap.. 32. Balcom v. 1899. L.106 THE AMERICAN LAWYER. 567. 13. Y.—Imposing transfer 30. 1899. 735. Sec. 61 Y. 1899. 1. Chap. 920. 358. 52 App. 166 N. unconstitutional. Y.— That laborers on public works be paid prevailing rate of wages. is — unconstitutional. 162 N. 80. 502. 171 N. Chap. L. S. An amendatory act passed in 1898 to the Turnpike Act (L. L. 51 N. 869. Leubischer. 415. Y. 849. In re Fallon. invalid. Chap. 1885. Chap. Chaps. pay the expenses of a person who has been indicted within its boundaries for a criminal offense in connection with his official dushall ties. — Rochester 79. City. of the official world. L. Matter of Pell. Y. 1899. as takiug away liberty of free contract.). The eye cannot be opened upon any department 78. 1ST. 1847. L. . Turning from we find that the lawyers occupy almost the entire horizon. Y. S. 700. list. etc. People 81. Y. Repealing all prior statutes as to secur83. 567. Providing that municipal corporations L. 37. Chap. void. Y. v. Tax. 58 N. In re Straus (Sup. 1898. — — McCann 84. highest on People ex 82.— Code. rel. v. 1899. void. ing prevailing rate of wages to municipal employees void as to claim of workman employed prior to repealing statute. Laws op 1899. 210). S. tax upon remainders or reversions vesting prior to June unconstitutional. 54 N. S. People v. 76. Coler. v. 1899. L. legislative to other fields. Chap. 192. 1897. Mosher. L. as against due process. 370.
77 N. 377. Haefelein v. as taking without process. People 87. etc. Div. 128. v. 614. 70 N. Y. 1897. S. T. recovery of moneys paid by vendee. 418. void. They. 107 of the Federal. 79 911. 15. Greene 88. and they swarm everywhere. unconstituof — — tional. 476. S. 90. as depriving county of a vested right. 94 N. as amended by L. Chap. 27. Chap. T. which she cannot be deprived without due process of law Ohap. Whiteley v. L. Niagara. void. v. guilty of misdemeanor. prohibiting sale of butter or cheese containing a preservative. v. 1900. 1901. Caminez. Grossman App. . 1900. or Municipal governments. Biesecker. Department. 534. State. Y. Contra. engross all of the judicial offices. —Amending viding that in cities of the first Cody v. 68 N. 166 N. 762. 1900. 85. Livingston sell v. and. 89. L. 1900. 86.— THE DUTIES OF A LEGISLATOR. 899. 466. 742 in so far as it affects prior judgments for. as taking without process. in the legislative and executive branches of the government. as not proper exercise of police power. Y. in default. Sup. — Prohibiting amended by New York v.— Providing for sale by auction by vendor. L. T. Good- Ooodsell. Jacob. boiling of garbage. L. void. 1900. void. 1067. Chap. v. void as to sales prior to its passage. Sec. Terry. naturally. T. Chap. L. without encountering them. Dempsey. 806. 83 N. —Agricultural Law. — Providing that a county should pay a bank its defaulting treasurer's overdraft. 1900. Judgment for alimony constitutes property of wife L. Chap. proand second class persons offering real property for sale without written authority from vendor or vendee. 510. T. 1212. 78 N. S. Penal Code Sec. S. 173 N. Livingston. 81 N. although a judgment had been given in favor of county in action by bank. Y.. Amending Chabteb N. as L. 485. S. T. Sec. 640d.
as taking without — v. 1901. giving salary to Alderman. 1901. against abridgment of citizens' privileges (Const. Y. 168 N. People 92. 503. Y.108 THE AMERICAN LAWYER. L. 96. MacMullen v. 1). 112. 1901. as taking away right of action altogether. 77 N. Young v. void. T. 1896. L. Y. 1902. 1367. S. Y. 639. they readily accept his 91. 145. 224. . In re Cook. 1897. city pensioners to bold city Chap. S. Y. Chap. 1902. City. void. — Forbidding v. 469. and the motives for Individuals imbibe alterations of old. L. from the lawyer notions of the principles of government. Chap. laws. S. Code Civ. 100. Seo. 1894.— For canceling of license certificate unless holder files an answer denying violation. 567. void. sec. Y. compelled to attend. as 1. 90 N. p. 451. S. 76 N. 94. 640. City. banks Chap. Y. Chap. as impairing a vested right. 1560. void so far as retroactive. 378. process. Chap. as taking without due process. In re Cullman. 1902. 671. Sec. 1899.— Providing that Act April 25. L. JF. 22. of Woodbury. 241.— 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. they hear from him the reasons for new. 1901. void. Y. In re Commonwealth. amended by L. Pboc. 81 N. employment.— Relief as to lost certificates of deposit. Chap. 410. Chap. criminal procedure in Pennsylvania. 97. as depriving of liberty without process. Caldwell. 83 93. 1901. but for no part of 1901. void. L. S. void.— Citizen of N. 618. as amended by L. as amended by L. 808. S. 92 ST. L. from engaging People in ticket Preventing any than common carriers brokerage business. on subpoena. S. 94. 98 N. Art. Act Jan. 95.
rel. 640. Chap. . prohibiting use of United States and State Flags for advertisement. 230. Chap. King Irving.— Amending Penal Code. Warehouseman may refuse to deliver goods to holder of receipt when another claims them. 1391. Sec. 86 N. 1902. 102. S. by L. — People v. — 99.'' p. Sec. L. 1 v. S. v. S. the people fit of incalculable bene- De Tocqueville. 227. McPike v. S. Providing that buildings within 500 feet of hydrant may be assessed although water not used. 1902. as taking without process. 1903. People ex 103. as to trusts created before Sloane 1094. L. Tiffany. special execution against income or its Proc. Y. debtor. 93 N. Sec. Chap. S. 1 when not of a purely partisan char- In times of excitement. void. Johnson. 194. void. and as beyond police power. 539. unconstitutional in part. 414. property. Y. 1897. 1903. 348. Chap. 134. 100. Chap. I. People u. 137. Y.— Commutation for good behavior only allowed to convict committed on definite sentence. amended by L. — Booth Co. as taking without process. 16. L. 1903. Y. 88 N. void.. " 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. 425.THE DUTIES OF A LEGISLATOR. T. 272. 272. L. Van De Code Carr. Green. Chap. L. Prohibiting possession in close season of trout taken outside the State. 591. and that he shall not be made defendant in action unless he claims interest.— As amended profits of judgment passage. Village of Canaseraga v. acter. 178 N. Y. void. 92 N. 1902. 101. Subd. 1903. 109 technical explanations of the causes and effects of legislation. in preserving order. Civ. when public resent98. S. void. as to offenses committed prior to its passage. 608. 90 N. Vol. 141. 97 N. Y. L. 149. 461. Chap. as infringing liberty and property rights.
v. 1905. changing method of electing directorate. void. Y. his devotion to existing rules and forms. as L. rel. Chap. Proc. Star Co. Equitable. as taking without process. to print There are some thirty-five additional acts declared unconstitutional in the State of New me them. void. 1904. pause here. 106. 90 N. S. 1904. Chap. 531. Y. — People ex 105. S. Chap.) special deputy commissioner to revoke liquor tax license issued prior to passage. 1904. Space will not permit already nauseatingly long. organizing the Equitable Life Assurance Co. S. 1853. Code Civ. Flynn. Municipal ordinance allowing projections beyond building line. or passion is ment aroused. About 1904. as taking without process. 655. 772 . . — McMillan v. Proposed amendment of charter of a corporation. 96 N.. Lewisohn v. besides. 108. requiring courts in certain districts to arbi- trarily regulate preference of causes. 176 N. 463. his respect for the law.110 THE AMERICAN LAWYER. Zimmerman. 657. His trained habits of thought. Klaw. 107. 697. as depriving judiciary of right to regulate the hearing by the circumstances of each case. 94 N. as outside police power. 497. 181 N. O'Brien. v. 253. amended by L. Privilege of witness provided for by Section 342 of the Penal Code not coextensive with that afforded by constitutional provision.— Authorizing taking without process. 793. Y. all combine to make him a power of great impor104. S. 65. T. 95 N. People I v.— As L. Riglanders. aff'd. 1904. He becomes a breakwater between the passions of excited citizens. Chap. void. 173. 173. Y. 365. S. 1905. the list is York. — Lord 109. L. 92 N. — Regulating trading stamps. Sec. L. void. People L. void. and the forms and rules of the law. (May 26.. the lawyer's influence ought to be great. Y. Chap. Y.
they instinctively act together in defense fundamental principles of liberty. upon the most important changes in the Constitution. p. as a free and voluntary promulgator of tance.: THE DUTIES OP A LEGISLATOR. in Ill these dangerous emergencies. in the choice of their representatives in the legislature. tance. that they may intelligently exercise the controlling power placed in their hands. of and trained oracles body of calm. intelligent. mingling The influence. and They have the same training. pre- law- yer. and of judgment in deciding. to be ultimate sovereign. community. his advice and judgment are received without suspicion or reserve." all. Judge Sharswood * says "It is its office (the Bar) to diffuse sound principles among the people. 54. justice. in the which may The characteristics of the lawyers are identical everywhere. they religion. . of Without premeditated or concerted action. and above formation of that public opinion be said in these times almost without a figure. As the sumed maxim still prevails that every man is to know the law. 1 Legal Ethics. as they are often caUed upon to do. in his social sphere. is always in proportion to the respect with which they are held by the of the law. the occupation of a it. As a voluntary instructor. becomes one this of great impor- without reserve among all classes.
is like Sir but in that different. of whatsoever form they may be. in the broadest sense. that." no such exclusive privilege exists. This is undoubtedly true. he was not a "pure" lawyer. so far as the gov* De Tocqueville asserts ernment of the United States is concerned. I cannot recall an instance. or even very great in Parliamentary debate. Perhaps Brougham comes nearest to it. converts them into fixed principles. but then. Mansfield was noted in his time. But in England. which is certainly "free. to de- are taught to observe form termine questions by certain fixed principles. shifts — champions of makeYet they rarely in a truly political sense. 1 special mission. act as an organized body never. and the general similarity of their habits of thought instinctively institutions. Some have been great there when charged with a Samuel Romilly. where a pure lawyer has been a great leader in the House of Commons. 350. the members of the legal profession will be found at the head of all political parties.112 THE AMERICAN LAWYER. The " Democracy America. as opposed to temporary and frothy declamation. . to respect and preserve prec- edents and existing to guard sacredly the rights of persons and property. of which he was writing. in all "free" governments. based upon the fundamental maxims of social and political right." p. and order.
Except in rare cases.THE DUTIES OF A LEGISLATOE. it seems that their political inspirations. ex necessitate rei. by that instrument. and ideas. 113 truth seems to be that the influence of the law- when not strictly official. on the other hand. H . education. The Constitution of the United States becomes the guide for most of our internal politics. means the highest state of civilization. furnishes a most striking picture of the difference between the two governments. The interpretation of a written Constitution. which. from which most of our political history takes its life A origin. constructionists —to —professional. the instincts. in the aspect in which I am here considering them. the substantial ex- clusion of the lay element of the community. comparison between the English and American Statesmen and orators. In the United States. as the sine qua non. when best administered. and training of the lawyers fit and adapt them for political life. has been of the subtle kind advocates and chamyers in England. to political education and advancement. and from the beginning of the government they have almost exclusively occupied the leadership of political parties. are limited and circumEven the tariff scribed. brings into public tech- a large body of lawyers nical. and American politicians must study it. — pions of justice.
and in life he has been a factor of the greatest importance. Pitt. Burke. and Gladstone and others are carefully studied. most of the greatest political acts. been challenged. when Sir John Eliot delivered his speech in the House of Commons. have been inaugurated and inspired by pure and technical constitutional lawyers. as early as 1628. Chatham. lawyer's influence public and private . as contrary to the In the United States. however. whereas in England. Canning. Chesterfield. and efforts of eloquence. the sphere of the has been unlimited. in the administration of all branches of the governments. on the petition of rights. and political students. Fox. and the orations of Walpole. down to the present time. the great speeches have been almost universally made by trained statesmen. legislation has Constitution. therefore.114 THE AMERICAN LAWYER. Sheridan. wisdom and In both countries. as models of British eloquence.
the limi- upon his right to practice. I also reverse the natural and logical order of the subject. in damages. I use the word "obligations" in a general and somewhat arbitrary sense. or negligent technical liabilities of a lawyer to his client.CHAPTER VIII. THE OBLIGATIONS OF A LAWYER. ascertained." Logically. and duties. should be. political and which prepares me to advance a step further in the inquiry. briefly. or of a class. it is their "duties. for a faithless. social relations. I have heretofore. and to endeavor to his vocation. As this is not an essay upon the ignorant. the nature of and his professional. sketched the system is under which the lawyer tations educated. it is necessary that all of the obligations should be defined and understood. the "duties" of an infirst dividual. by considering the "obligations" of lawyers before discharge of his duty. perhaps. it gen- 115 . At the same time. liabilities. because when a "duty" exists. ascertain the nature of his obligations. unnecessary to dilate at any length upon this aspect of the subject.
nevertheless. constitute the most important attribute of the law- am yer's office. deof the Courts have. for which he is liable to criminal punishment. existing. judged their violation to create criminal. defined the relations of the lawyers to their clients. cisions. and punished .116 erally carries THE AMERICAN LAWYER. There are three classes of these obligations: those arising out of acts of professional misconduct. all I mean to inall those of an enforceable character. These being ascertained and disposed of. and the courts. second. but which. with it a corresponding "obligation. I then in a position to deal with the "duties" of a lawyer to the community." The obligations which am now to speak of are well understood by the lawyers. or liabilities. for which he may be disciplined by the courts. and have adcivil. or perhaps never can be. but first. which never have been. enforced in civil or criminal tribunals. expressly or impliedly. They are his technical legal "obligations" to his client. or orders "obligations" in which the statutes. acting without the aid of juries. By clude those "obligations" of a lawyer. as they do." and the violation of an "obligation" involves or I creates a "liability. largely in foro conscientice. those acts for which he cannot be proceeded against criminally.
with the intent. Sec.. or consents to any deceit or collusion. for deceit or misconduct. and for the purpose of bringing an action thereon. a lawyer in may be criminally punished. in addition to forfeiting is damages to the party deceived.THE OBLIGATIONS OF A LAWYER. 2 Code. liable have his license revoked. his license may be revoked. those for which he fine. and he may damages to his offended client for his acts in one transaction. but only in damages to his clients. New York. the policy of the law i Code. third. or thing in action. For instance. with intent to deceive by statute. Or. The which fixed first class of obligations. That is to say. there may be no damages accrue from his acts. the court or a treble of -party. 1 guilty So an attorney buying a a misdemeanor. in the State of an attorney or counselor who is guilty of any deceit or collusion. by imprisonment. Some of these acts fall under all three heads. Or. etc. he may not be liable to criminal punishment. In these two enactments. 117 or the cancellation or sus- pension of his license to practice. . the neglect of are generally entails a criminal liability. and still others under one. Sec. and. 73. bond. others under two. may be held liable to the party injured in pecuniary damages. and to the revocation of his license. 70. he be may yet. is 2 guilty of a misdemeanor.
Such acts comprehend. and it is only when the fraudulent intent is brought to the surface. any more statutes of a penal nature. for the violation of which he may be disciplined by the courts. They are spread upon the Penal and Civil Codes. that the law can be applied. and against the practice buying claims. What constitutes fact. against deceits or colluof of plainly pronounced. fine.118 is THE AMERICAN LAWYER. A lawyer who deliberately sits down to concoct or commit a fraud. and collusion always is very subtly arranged. duty. it is diffi- But the is first of the Statutes to which It is I have alluded a very important law. however. in . of any kind. an inactive one. or the cancellation or suspension of his license to practice. in the boundless region of professional discretion. Deceit lurks in the heart. can hide his tracks. so effectually. deserves more than a passing notice. yet to the credit of the Bar. These are difficult offenses to prove. sions of attorneys. a question of depending upon the peculiar circumstances of each case. and punished by imprisonment. with intent is to deceive the Court. young and old. unnecessary to cite know them. and the lawyers. with the purpose bringing suits thereon. and plainly revealed by acts. deceit or collusion. that cult to detect them. or a party. The second class of the lawyer's obligations. or license.
therefore. for they embrace all acts of bad faith. are held. and obedience. respect. fidelity. to a standard of morals. everything which a lawyer does. and corresponding to their opportunities. of fiduciary agents. but they exist almost wholly in judicial discretion in the conscience — of the courts. or of in any contumelious conduct contempt of the latter. in dealings with their clients. ments. that many acts which would not subject any other class. have been held It is sufficient to justify the infliction of severe penalties. a proof that They their morale at some was fixed at a level and in some way. in their dealings with their clients. his client. with their presumed attaintime. and moral misconduct. that lawyers in their dealings with their clients. . or in fraud or deceit of. or be- tween themselves. above and not below the average. 119 general. or of the court. to summary punishment. disobedience or These obligations are not generally defined by statutes. their in the case of lawyers. or rules of court. in violation of his duty towards. or omits to do. of the lawyers. and with the court. a principle of universal jurisprudence. must observe the strictest rules of honor. The Bar seems to comprehend these offenses by a species of intuition.THE OBLIGATIONS OF A LAWYER. It is important to note.
or contemptuous. to question the plenary power of the courts. The is spectacle of a lawyer acting amicus curice now altogether novel. deceitful. or to deprive No them of their licenses to practice and conviction by jury. This extraordinary power of the courts. Although the original ground upon which it is placed. that he is an officer. they must exercise a plenary. now exists more in theory than in practice. that when a lawyer's conduct comes to be questioned. and will soon disappear from sight. when a member of the profession incurs censure. is put by judges on the ground that lawyers are officers of the court.120 THE AMERICAN LAWYER. as I have more than once intimated. this always lost sight of. fine. judge him without mercy or stint. summary. and almost arbitrary. the courts. he is under a positive . the power law. disingenuous. to punish or discipline the lawyers. one has ever successfully attempted. for any act which they adjudge fraudulent. is Popularly. the discipline is so severe. However. power over these legal agents. when his professional conduct becomes the subject of judicial review. without a trial to discipline is unquestionable. to punish lawyers. Indeed. and that to inspire and maintain a respect for the law. clinging to the old theory. summarily. by imprisonment.
for the fidelity of a lawyer and his interests. but the rule. 121 disadvantage. But the number this of cases second class of obligations. for the lawyer to surrender his whole mental. and it is not a common sight. and ad- vantages are incalculable. to witness the spectacle of a lawyer. Subject to the hereafter. at the instance of a client. The one saving attribute for the lawyer. from the sensitiveness which the judges display to maintain a high standard of professional conduct. It is not the exception. and through him of society. 124. and no dangers that he will not incur. tual. which I recur 1 to when its discussing his "duties. Fidelity is the saving salt of human nature. There are no sacrifices which he will not make. intellec- and physical power to his client's cause." no risk is incurred to the lawyer's morale by its exercise.THE OBLIGATIONS OF A LAWYER. It speaks volumes. (especially one of any character or prominence) arraigned in court. is not large. when compared with breaches of trust by other fiduciary agents. and to his client ennobles whatever limitations it touches. p. which arise under it must be said to the honor and credit of the profession everywhere. . i Post. to advance the success of his employment. is fidelity to the client.
and when such cases arise. in the history of these infrequent controversies. for the violation of which he can be little made liable to is the party injured. even when the lawyers overstep all decent. and his failure to do so subjects him to the ordinary action for damages. in rules all of which instances. of importance in this discussion. and legal limits. moral. The illustrations of this general principle are . Hence the lawyer is not often cited to answer the complaints or grievances of his client. not often publicly complain of the overzealousness of their servants. The lawyer is bound to exercise honesty. therefore. can be found. which throws of a lawyer to the State. the violation of an obligation creates a liability. skill. the same as other agents and trustees. they are generally accusations of withholding moneys. in pecuniary damages. in light upon the duties Men do their efforts for success. The third class of the lawyer's obligations. As I have said. Little.122 THE AMERICAN LAWYER. prudence. in the management of all business committed to his hands. and the clients are silent. they do not arraign them for extra fidelity to their interests. the above referred to are enforced. or disputes as to strict compensation. and the lawyer is under a common-law duty in respect to his employment. and care. at the instance of his client.
in the hope that I shall at least open to the profession. to cases. some of the difficult and delicate questions involved in the subject. is above three classes a necessary prologue to the im- portant theme. and they have been sufficiently numerous. The consideration of obligations. to be found in 123 which their common-law duties have been defined by the courts. devoted esof the pecially to that subject. now so undefined. obscure. and misunderstood. which I shall proceed to discuss.THE OBLIGATIONS OF A LAWYER. . of the lawyer's real relations and duties to the State. in many justify the publication of treatises.
or to the rights of those to whom he is opposed. in those matters where to act for his client is a conscious wrong to the com- come now — munity. to perform and exercise the functions of his office. between the duty of the lawyer to his client and the State. most difficult. and another between his conscience and his client. to draw a line. tor.— CHAPTER IX. policeman. execuascertain their several duties. one office. The general duty of a lawyer is. or agent. in accordance with its nature. the obliga- tion to perform or exercise the functions of accordance with the nature thereof. THE "DUTIES" OF A LAWYER. of a constable. To we must know and I the character of their functions to encounter the of their powers. A "duty" in the sense in is. To of ascertain this duty. Between these lines lay the whole power 124 . which I am now an considering the subject office in generally. true nature of the We must understand the speak of the duty a sheriff. and delicate part of my task.
the lawyer has the supreme power of direction. so that they can realize how It near. extensive search into the subject. as Matthew Paris informs us. in the extensive pronunciamento which he issued. and that these acts have frequently called for very stringent measures against them. reputation. the affairs of business and commerce. It lies with him to suggest and to direct. In its general exercise. and which was . or tendency. that the lawyers. the Papal Legate in the Great Council held at London in that year. always opening to the Bar enormous returns in money. to overleap the bounds of conscience. in the commencement and conduct of litigated or other legal matters. While no one can hope. There is no In a very arbiter over him. For example. in 1237. as a class. I have found that there has always been a recognized temptation. will live up to the exact and best models of duty. and gives us the text. Living up to the most exact standards of professional conduct and ethics. 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. they are from ideal conditions.THE "DUTIES OF A LAWYER. but his conscience. or far. on the part of the lawyers. and influence. still remain. 125 and influence of the lawyer for good or for evil. it is well to have the lines constantly before the profession.
offi- as an officer and citizen. suspended from office and benefice until they have made proper atonement for the same. . or instruct the parties to give false evidence. decree. and if they are convicted for so doing. to the courts. to the court. or to suppress the truth. as an and adviser. . he owes respect and dignity in his deportment. Let all advocates beware that they do not themselves. or by means of others. ' The duty cer of a lawyer is threefold : —to the State. they shall be duly punished. We . he will plead faithfully not to delay Justice. intended to cover all of the evils of the age. do.' 126 THE AMERICAN LAWYER. that in cases in which he may plead. therefore. ipso facto. in the following language: "We have heard the cry of Justice. with the approbation of the council. included a separate decree against lawyers. but to defend his client both according to law and reason. rising to the assistance of Justice. and to his client. complaining that it is greatly impeded by the quibbles and cunning of advocates. that whoever wishes to obtain the office of advocate shall make oath to the diocesan in whose jurisdiction he lives. and candor or honesty in his statements and . as a fiduciary. . or to deprive the other party of it. . He owes loyalty to the State. both as a citizen and as a sworn officer of justice. suborn witnesses. those who do so shall be. all other matters notwithstanding. .
whole. plicable to both. He is appointed to conduct judicial proIf a conflict arise between his duty and his Client. performing this duty. and honest to his client. his primary duty is to the State. It is one complete. is a part of the judicial system of the Government. his knowledge. any more than he can be dishonest to the State and court. or a question of the rights of the citizens. to his client he owes his talents. and neglect the third. congruous.THE "DUTIES" OF A LAWYER. The lawyer cannot perform his duty to one of It these parties. ap- ceedings. it is impossible to separate this threefold like the Trinity. which State itself). If he attempts to go beyond this. He cannot be honest to the State. In every employment which the lawyer reIn ceives. 127 dealings with them. in which the Government the to position of the State in its whole corporate capacity is clear (not a mere question of law. cannot be divided into parts. is in fact the interest of the he must decide in favor of the former. any more than he can serve two. he Why? Because he strikes a blow at society. But duty. and neglect the other two. he can fulfill all of his obligations to clients and courts with fidelity and honor. and his fidelity. and dishonest to the court and his client. for the interest of that client is subordinate to the interests of all the other citizens con- — . his time.
magistrates. but the latter go unpunished because. or resorting to acts. or honest doubt as to the facts. influence.— ! 128 THE AMERICAN LAWYER. honest doubt as to the law. Is the one class of acts any less dishonest and lawless than the other? Policemen. are parts of the judicial system. lawyers. Of course. 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. to aid or abet clients to take undue advantage of the law? The former can be punished because the acts are capable of proof. each and all. he should not prejudge. which cause their violation. and knowledge. and in cases of doubt he is free to act as his conscience dictates. and all agree that a proper punishment should be meted out therefor. knowingly and deliberately. there is no adequate legal evidence. constables. . cannot be performed by giving advice. Salus populi suprema lex. sell their office. Yet how are these offenses worse than the conduct of lawyers who. stituting the State —who of are interested in main- taining the integrity the judicial system. His oath to maintain the laws. sheltered in the breast of the lawyer.
to corrupt a magistrate to permit a criminal to escape. He works under the guise of his employment. to pay a lawyer to use his knowledge to defeat the law. that his dealings with his client are confidential. 129 To bribe a policeman to shut his eyes while crime is being committed. The client is not apt to disclose a secret. somebody is wronged. or plot. and the occupation of the lawyer degraded. which is made for his — . He is alone with his conscience. The difference is not in the degree of the act. place the whole business upon the latter' shoulders. own benefit. but in the difficulty of detection. therefore. When a lawyer cheats the law. which is protected all over by the sacred armor of the legal principle. the act is so insidious that it is almost undiscoverable. carefully and delicately the game which his client and when the job is to play. so confidential that he not only cannot be made to disclose what takes place between them. represent his client. 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.s THE " DUTIES " OF A LAWYER. and the disresult in getting him into would closure of which The lawyer. but he is absolutely prohibited from doing so. to defeat the law is "put up" he can go into court. Therefore he works with perfect impunity. can arrange difficulty. and wrest from justice and the law.
whereas. or the other. I am bound to say. he is equally culpable. also be safely said that the prevailing popular idea of the lawyer. nothing else but the client's interests. case. in modern times. few lawyers have ever taken time to analyze their true relations in this respect. and think of. to the law and society. the that his profession consists in thwarting law instead of enforcing it. He insidiously fills the latter with false pleas and defenses. he is often the principal actor. It may is. the question as to how far his professional conjustice. is to look to. Is not this pure and simple dishonesty. and in fact. or knowingly aids the client in carryIn the one ing his own plans into execution. 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.130 THE AMERICAN LAWYER. the lawyer artfully puts forward the client. duct affects the administration of and is the general salutary condition of the State. is rarely regarded by them. and he appears merely as the representative. that the tendency of the lawyer. is — They are satisfied if the client and the general damage which such success may have worked. successful. almost lost sight of indeed. too often justified by facts. the performance of this work. In results to which the client is not entitled. The modern .
In castfor legal aid.THE "DUTIES idea of a great lawyer public no longer calls cessful" lawyers." Availability is sought for not great legal talent ing about — or learning. or unconscious of. If a citizen gets into criminal trouble. the interests of — They The law and of It is the justice. And the rights of the public of. and outside of the profession. of course. The them "great. he can accept the flimsiest case with impunity. When he is at the zenith of his professional fame. and. is OF one A. the greater his reputation. he is very clever and cunning and will get you out of any difficulty. but a successful practitioner. . lawyer goes with the current the more desperate the causes he wins." "Lawyer Jones is your man." "Do you want time and delay I know the man for you. 131 suc- who can most cessfully manipulate the law and the facts. LAWYER. relying upon his past record. defeat. wholly indifferent to. and wrangle and wrestle it through the courts. that the most brilliant and learned of the lawyers are employed to defeat or strangle belief." "Brown has great influence with the court. or thwart this law?" "Go to Smith. inside common justice. one constantly hears such phrases as these: "Whom shall we pick out to break. ! are never thought much less considered. or profound student. employ him. he can hoodwink the court and fool the jury." but "suc- Not a great jurist.
In some instances. of the lowest "shyster" or the most skillful counsel.is as well leaders of the bar everywhere. A successful lawyer. by any stranger. It is believed that big fees will command the It . he wishes to postpone paying his debts. as thus understood. and influence can be hired. known as any other public fact. good. every lawyer might be regarded as an intellectual prostitute. in any kind of a case. he magnitude and delicacy of the questions involved. whose time. the dishonest liti- makes choice (according to the . or. as to fees. and occupied. and of his means). whose experience. or indifferent. bad. In this view. and his ability to postpone and delay. his necessities call for a pettifogger. if he desires to enforce an illegal demand. — . well socially gant needs the services of a counselor who stands and politically. but who sometimes has not even a fair power of presentation. whose mind. that the lawyers of all classes can be hired by the first comer. who falsely brags of his intimacy with judges. whose capital stock consists of cunning and impudence. knowledge. 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. must necessarily be guilty in the course of his practice.132 if THE AMERICAN LAWYER. if he wishes to defeat a statute. who desires to comply with his terms. or the policy of the law. .
" and his air is more tri- umphant if it is a very bad one. to the most retainer — corrupt or infamous individual in the land. In fact. at the sacrifice of justice and say.THE "DUTIES" OF A LAWYER. his devices become more numerous. or pleas. or underhand. he be a man of fair natural. but fully. His acumen is sharpened. his time and influence. he must suffer some qualms of conscience. about this part of the lawyer's business. or intuition. of little — with feelings of real triumph. in any The flimsiest defenses. It has the approval of the people everywhere. of 133 many dishonorable and disloyal acts to the often will- State. There is nothing secret. successfully. to . the victories which he wrests from the law. right. It is his highest glory to be able to "I won that case. the community looks with perfect complacency and composure upon a transaction in which the leading lawyer sells his talent. No one has ever. and in time he begins to regard. his knowledge. assailed the right of a lawyer to accept a and employment from any man. are intercase. moral sense. 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. posed by the leading lawyers not by those in the middle rank of the profession. unconsciously sometimes.
are constantly witnessed. of the to Government licensing an army defeat of agents or delay justice. in any case. civil or criminal. for which society is organized. To such cases I do not refer. where the lawyer is deliberately made an instrument to thwart the law and justice and he knows it. and applauding the lawyer who shields and sustains him! To-day a multi-millionaire. Yet if one contemplates the true position which the lawyer fills in the Government. while. — I allude to those instances in which there is no doubt. as an auxiliary in the administration of justice. the evil that must result to society. the exact dispensation of which. for defeating the object which he The idea legal is created to promote. when he transforms himself into an agent. can take his pick of the Bar. is among the first purposes. promote or sustain illegal acts. is most extraordi- nary and anomalous. condemning the author and his acts. also in this connection. Remember what I have said about cases in which there is an honest doubt as to the facts. at the same time. these paradoxes in morals. .— 134 THE AMERICAN LAWYER. condemning in the most unmeasured terms the client and his performances. the right of everyone to insist upon the exact forms and principles of the law being applied. All these anomalies in law practice. or the law bear in mind. becomes apparent.
and which are so often illustrated by lawyers in their employment. Let me not be misunderstood. and which. as in the case of the lawyer. 135 sacrifices qualities of fidelity to. for it then accompanies a grave function and is Who can encompassed by many-sided duties. it should be more closely scrutinized. for the duty to the State begins at the point where the duty to the client ceases. So those for. no infidelity either to the client or the State. that is good. in the abstract. of which I have heretofore spoken.THE "DUTIES" OF A LAWYEB. and the client. taking it at its best. A de- . it claims exceptional privileges. and presumably of equally vital necessity. are no longer but become positive vices. in the mind of the advo- cate. as in everything else. doubt that it should then be safeguarded by an enlightened conscience? When it is so guarded. there is in reality no choice of evils. and blind attachment to the persons of individuals has ended in ruin and even criminality. 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. Fatuous When fidelity has no merit. But surely there are virtues. are virtues highly to be extolled. — — mistakes and excesses here. and both being bound up with each other. mutually to illustrate each other. they serve. A bad cause has had its votaries.
and he owes and can justly give him nothing more. The lawyer's duty to his client is. or desire for success or pushes him farther. for money. lawyers. to of his client at the ciple of fidelity.136 THE AMERICAN LAWYER. while a single act. in the actual working of tration of justice. skillful. and public opinion. of truth. a condition of things exists in which fidelity to the client and the duty to the court. private and public. rightly understood. termination. are in opposition to each other. and perverts and corrupts the adminisIf. any system of jurisprudence. on the part of the advo- devote himself at all hazards to the rescue expense of the Law. and diligent. and. It is. needs revising. fects. it may be. courts. . faithful. They and around us. cupidity notoriety. that the whole of that state of system. in plentiful measure. are with us. can have no vindication from the assumption that it is required by the princate. The lawyer's duty to society and the law must be constantly kept before him. or all of the acts. to the law and society. of one lawyer may not be enough to affect the foundations of justice. rather. to be honest. need no amplification. he immediately encroaches upon his duty to the court and the State. subversive Its evil of ef- that principle. therefore. If his zeal. for. then sign it is a sure things.
you may be sure that such acts have contributed largely to the result. Atlas had not a greater burden on his shoulders. gradually but into to give way and tumble perhaps not going too far to assert that the lawyers. of the system of government. fifty in distorting If the philosopher or let critic is looking for evi- dence of decay. as a class. misapplying and perverting its principles. 137 the combined acts of a body of lawyers oft repeated. or the law paralyzed. than the responsibilities of the lawyer in this regard. of profession — es- . silently and secretly gnawing cause It is it at the foundation of a great structure. for the minimum of respect and obedience. able to trace the effect of a or of a thousand. and he can make fairly accurate calculations as to the longevity. under which they exist and thrive. methods lectual of practice. are largely answerable. but if thousand legal agents spending their lives and prostituting the forms of justice. like an army of worms. dishonest and illegal upon the judicial system. will and magnificent surely ruins. him carefully examine the and the moral and intelthe legal condition. One may not be single. Let anyone consider the effect of forty or practices of lawyers. which the public has for the law.THE "DUTIES" OF A LAWYER. the wheels of justice become deflected. undermining the constitution and laws.
of the lawyer himself. where the influence of the lawyer is so potent for good or for evil and where in fact. is neither visionary nor impracticable. every branch of government. and may. But I have now reached a branch of the discussion where the utmost delicacy. the just and proper limits of their office. and judgment must be exercised in its treatment. pecially in this republican form of government. generally. by keeping. In applying effort to cause The them to follow these general principles to particular cases. disagree. a vast area of debatable ground is opened. as I have heretofore it. and adhere to a strict line of duty. and honest. the true functions of the Bar. men have. an intelligent and awakened conscience. is sufficient. as thus laid down. is dominated and ad- — ministered by him. and the exact nature of which they fill. without con- ceding that in it is subject to numerous exceptions The whole question rests largely. It is impossible to state any proposition concerning these duties. The general definition of duty. wherein many distinguished. endeavored to portray . which I have heretofore given.138 THE AMERICAN LAWYER. and conditions. thought. But a satisfactory conclusion may be reached. of members the office in constant view. to expose to the lawyers.
if a system of education is introduced. distinctive feature of their education. The profes- As sion of the law holds out a perpetual temptation weaknesses. exigencies of their clients. show that it has always been recognized.THE "DUTIES" OP A LAWYER. while far from being full and exact. and to either openly. to wander away from a strict line of duty. that the legislators and the courts have not been unmindful of the constant temptation to this class. illegally. or insidiously and secretly. that the to human lawyers possessed opportunities. the cultivation of a high moral sense is made a . commit many wrongs in behalf of their clients. many other deceitful and dishonest practices and schemes. shows. a different class of lawyers evils would soon appear. and many would gradually disappear. a review of the history of lawyers from their origin. the course of justice. The oaths administered to lawyers. to delay. or the conditions of . upon their admission. which brings before them a clear conception of their position in the consciences if government under which they live if their are educated and thus quickened. and to resort to. by the interposition of frivo- and unfounded defenses. to thwart and defeat just claims and demands. and use. fraudulent. according to the lous. I have intimated. If 139 the lawyers comprehend these things. These practices have varied.
and about which it would seem that no two just persons could disagree. Suitors of selves of the all kinds have freely availed themor avoid. as showing that the lawyers were in some respects no better in ancient days than they are at the present time. with great solemnity and earnestness. But they have grown so general and open. to sustain the lawyers in practices which were openly and flagrantly dishonest. their opportunities to delay. who had no to the estate . and public opinion has not only not closed its eyes to these things. claim whatever to and. that they have almost come to be recog- nized as a legitimate part of the lawyer's functions. For instance. not surprising. but it has openly encouraged. we find that arguments have frequently been put forth. was it. Whether of the if with the title a lawyer knew. of the payment just debts.140 the THE AMERICAN LAWYER. 2d. It is. that in the course of a research into these subjects. it was gravely debated in the sixteenth century between the Doctor and Student: 1st. justified in concealing that fact and of investing another. times. payment a debt. not only applicable to contemporaneous history. them. who knew the right and this criticism is And legitimate heir of a property. of and had the evidence. . Whether a lawyer. or approved. therefore.
or resourceful lawyers. frequent among lawyers and tions of legal ethics. In that celebrated trial. designing. was an honest 1 man. XV. I. Dialogue Chap." Dialogue I. . Chap. happily for the age. others. which was unnecessary. and collecting the money a second time The Doctor. None more glaring can be cited than the sentiments laid down by Lord Brougham. as those to which I have referred above. but there are many who may be needful to remind. upon queswhich seem to be equally and simple in their solution. knows in the discharge of that office but one person in the world. VI. to protect that Client at all hazards and costs to all others. Dialogue II. To save that Client by all expedient means. is the i "Doctor and Student.! THE "DUTIES" OF A LAWYER. which have done incalculable harm and damage to youthful. that Client and none other. Chap. by the appli- cation of the principles of common honesty. and had no entious and ises. in his defense of Queen Caroline. and among others to himself. that an advocate by the sacred duty which he owes his Client. discussions as plain since that time. he said: "I once before took occasion to remind your Lordships. XII. difficulty in reaching a conscirighteous conclusion in the prem- But there have been. 141 he was justified in concealing his knowledge.
and yet it has been relied on over and over again by lawyers. in a letter to Mr. the author of those destructive and unfounded views. and he must not regard the alarm." p. . of Brougham." he piteously added. if his fate it should unhappily be to involve his country in confusion for his Client's protection. or spoken. to make "Ossa like a wart. Nay. the suffering. which contained worse doctrine than There that which I have just quoted. he must go on reckless of the consequences. and the great name of Lord Brougham is still used. "I have learned to love William M. and casting them.— 142 THE AMERICAN LAWYER. Ed. perhaps never was language written. the destruction which he may bring upon any other. separating even the duties of a parent from those of an advocate. Tweed!" which perhaps he might properly have done. Fo^th. Tweed and then. if need be." heard a lawyer use this quotation in the of William M. highest and most unquestioned of his duties. the torment. to sustain many ridiculous and false positions of advocates. but he need not have used Brougham. as far 1 i Forsyth's "History of Lawyers. to the wind. 380. to cover all kinds of dishonest practices and defenses. despite the fact back as 1859. publicly repudiated them by saying that they were used as a sort of political that. and his I defense — love together. 1875.
talent or knowledge of his own duty to do that for his client which his client in foro conscientim has no right to do for himself. nor his his client. unmitigatedly." . But is the advocate has no right." Oct. and called for the But in 1 has stuck like a burr to the profession ever since. to deed or put in evidence a forged will knowing it to be so forged. as. what without those appendages. whether it be right that. in his Essay on Bacon. and disastrously bad. that was the exaggeration of an impassioned advocate. 143 it A better defense might be. menace. and a band round his neck do for a guinea. whose opinion I quote. by rhetoric. by solemn asseveration. not merely believing. had no difficulty in discerning the proper limitations. but it exactly suited the caliber of those who were to profit by it. defending an innocent woman whose situation natures. for a gross exampie. by gesture. by indignant exclamation. by play of i "Table Talk.THE "DUTIES" OF A LAWYEB. In the discussion which ensued. his He has a right. utmost sympathy of chivalric any rational view it was wholly. and to do it with all the effect which any exercise of skill. he should do all that can be done by sophistry. men like Coleridge. it left it to his readers to say: "Whether it be right that a man should. it is bounden duty. to do everything which his client might honestly do. 27. And Macaulay. with a wig on his head. but knowing a statement to be true.1831: "There is undoubtedly a limit to the exertions of an advocate for may it be able to produce. he would think it wicked and infamous to do for an empire.
throws doubt upon the subject. would seem to be only necessary to it. when they are discovered to be false and without foundation in fact. by asserting that the lawyer "is not morally responsible for the act of the party in maintaining an unjust cause. some ceded duty." No sophistry can obscure such a position as being wholly against the common principles of i Legal Ethics. by terrifying one honest witness. . I deem to it. to prove And 1 yet even so pure a man as Judge Sharswood. pp. principles state which governed by the general have endeavored heretofore to (a) To knowingly commence suits for the recovery of unjust and unfounded claims. of those acts. without the consent of his client or the approbation of the court. to cause a jury to by think that statement false. he cannot retire from it. As an it act of this kind involves pure dishonesty. 85." features. unintentionally. therefore. 84. important to specify which I think must be conviolations of the lawyer's leaving other acts. or courses of profesto be I be clear sional conduct. 83. state it.: 144 THE AMERICAN LAWYER. or to continue their prosecution." and that "when he (the lawyer) has once embarked in a case. perplexing another.
office. 96. in a subsequent x that "Counsel has an undoubted right. The object in creating courts was to administer How. with knowledge of the "mor- party in maintaining an unjust cause. is turns atheist? A lawyer. I cannot conceive it. truth. p. and aiding in the "injuria. 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. If anything can be more distinctly immoral. then." offends his sense of what is just and 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 are in duty bound to refuse to be concerned for a plaintiff in the legal pursuit of a de- mand which right. ally responsible" for the act of a i Ibid. honesty. because he is willfully stabbing justice. right? How can the law be efficacious.THE "DUTIES" OF A LAWYER. by clearly affirming." which it is the object of all law to prevent or remedy. . is by its to become of the own chosen guards? What sanctuary when the priest facts. if it is slaughtered in the temple of justice.
in aiding his client to do the same kind of an act. walk into court and loudly proclaim the dishonesty of his client. the world has never altered its views as to the nature of the If and unmitigated immorality. him cheat justice. and there is no real excuse for not promptly abandoning such a cause. as to the form and method which a lawyer should adopt in retiring from a ease which he discovers to be dishonest. upon the acquisition of the knowledge. should feel no disappointof escape an easy avenue ment in failing to secure legal assistance. without violating the privilege above referred to. his friend. or business associate. but there is always — from such a situation.146 THE AMERICAN LAWYER. There may be some room for a question. a layman combines with. to help of this from the Bar. but that he should desert it. perhaps. and frequent rebukes kind. existing rules of law. at once. in addition to act. or assists. and he cannot. A man who is conducting a dishonest case. is guilty of a deeper and more striking offense because. in defrauding another of his rights or property. would have a quick and exhilarating effect. upon the morals of the liti- gating community. And the lawyer. and of its entire — . is perfectly clear. a lawyer is forbidden betray the secrets which come to him under to By guise of professional confidence.
and upon society in general. 2 fession "Usages et Regies de la ProdAvocat. apposite quotations could be cited from the writings of moralists to sustain these views. S. par M. When the laws can be easily thwarted. he violates officer of the law. It has almost come to be a proverb in the This is 1 ments See especially Whewell. 303." 2 acter of the lawyer (6) To knowingly postpone. has a direct and deep influence upon the morals of the lawyers. p. "Eleof Morality. which requires him "de refuser les causes dont il connaitrait l'iniquite. or de- feat. Legal controversies. II. talked about. Vol. XV. just demands. for I believe the subject perfectly clear. openly indulged in. 1 his oath and duty as an Many I but deem them is superfluous. have increased to such enormous proportions that there is little doubt but that such a practice. They are.THE 'DUTIES" OF A LAWYER. the moral sense of the whole community is deadened. however. ." etc." b. Cresson. but perhaps it is not more so in degree now than in the past. strikingly confirmed by the oath of office administered to an Avocat in France.. however. 147 the innate immorality of his conduct. and encouraged. 17. I. and legal claims or delay. c. is when the true char- understood and considered. one of the besetting sins of modern legal practice.
may be almost indefinitely postponed. it becomes perfectly plain that these practices. . The appeal comes to the lawyers. by a resort to — — technical There at is and dishonest defenses and excuses.' no doubt. in resorting to such some step practices. must inevitably be to the detriment of the principles of the law and justice. but I have not the means to pay it. And in the tions yet. 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. it is just and due. and sometimes the deepest consequences to friends. in a form which is almost irreThis. i Legal Ethics. in the life of a lawyer. often. when the subject is examined even most narrow light of the lawyer's funcand duties. hardly a lawyer who has not felt justified. family. it is the general open boast of lawyers that any just and legal claim. presents an every-day picture. p. of his career. of defending or postponing and legal claims. sistible. I want all the time you can get for me.148 THE AMERICAN LAWYER. 116. is as great as the violation of any other plain duty. and future prospects. The demoralization which is produced. are involved in it. law at all events.
that be impracticable. in the practice of inter- posing technical defenses. common and extended." (p." Of course. consequences ensue which are disastrous to the proper ad- ministration of justice. an application should of the question. and the declarations and pleas were not under oath. . from arguments or reasoning of this kind. to be falsehood in . There is no doubt. and it has made The the practice more is difficulty that. But that circumstance does not alter the principle. in such a case. The formal pleas put in are not sidered as false in this aspect. it would seem that a suitor has a right to all the delay. except such as are required to be sustained by oath. which I am here discussing. 149 Judge Sharswood evidently felt the delicacy and he meets it by ingenuously saying that. course of justice. be made to the plaintiff for time! But. however. which is incident to the ordinary instituted. by the abandonment of the lawyer's plain field of duty. appre- ciating the sults which generally refrom such application after suits have been refusal prompt he says: "If. to just claims. Pennsylvania existed under a pure common-law practice. The counsel may take all means purpose which do not involve artifice or himself or the party. 116) con- .THE "DUTIES" OP A LAWYER. when Sharswood wrote his little book. for this ". that many lawyers have received encouragement.
or disregarded. and in this aspect the form of the defense. rather than embark upon the doubtful voyage of a litigation. than these unrighteous and unjustiprocured by attorneys. "go to law and be involved in endless litigation and expense. annoyance. and trouble as substantially amount to a loss of their frequently claims. which may end in the far future. and the courts are established If for that purpose. and those which are attested by an affidavit. 'Individuals abandon their legal rights." "give it to the lawyers and be done with it. entitled to have them vindiof when they refused. the consequences may be as disastrous to the claimant as to the debtor. for necessitous and dishonest suitors. . There is in conscience no act which has brought upon the if administration of the law more reproach. or The cated. owner are has rights. is equally objectionable and truth." to law "Go and lose it all. Where is the line to be drawn? Certainly not between the formal pleas not under oath. these rights are postponed or defeated. and involve such expense. if unsupported by merit. He is an undisputed claim. fiable delays." are expressions that are familiar to everyone. plaintiff.150 THE AMERICAN LAWYER. The one is equally as false as the other. not contempt.
It may be conceded. A hardly appreciable evil. 151 in The "law's delay" has been English history. that tendency of modern times. and the respect paid to them by the lawyers and the courts. as well as other. these delays were to a considerable extent the result of the intricacies and forms of pleadings. and procured postponements under their cover. and Jarndyce v. but the criticism of delays predicated upon false and dishonest defenses is not answered by a recourse to the past. has now grown to such dimensions. proverbial. These delays constitute to-day a crying. as to involve all of the legal agents. business. was sufficient to attract that great poet's satire. In Chancery proceedings the delays were cruelly long and unjust. has been the general towards greater rapidity. in Shakespeare's age. Its danger lies in the fact that it has permeated . shameful reproach upon justice. but its origin and continuation. from time immemorial. Jarndyce. very different from those which are now invoked to support it. which. were based upon grounds. wholesale. open. in the transaction of legal. is not an exaggerated illustration of them. and without doubt many dishonest suitors sought refuge for time. and the adminis- tration of justice itself — it is applicable to a whole system. So far as I can discover.THE DUTIES OF A LAWYEE. which threatens the very fabric of jurisprudence.
to thwart the right of individuals to dispose by will. In the connection which exists between the Law. The this power is so apparent that I need not dwell upon it. It is an incentive to ambition. also threatens institutions. No more sacred or in- up with the growth of jurisimportance of rigidly guarding prudence. or even caprice. citizens and a most vicious practice of lawyers. it invites prudence and economy. must likewise be dangerous. as an instituted organism. so evil in themselves. The rule of permitting an individual to bestow his property upon his death according to the dictates of his will. classes everywhere unblushingly use the lawyers to procure unconscionable delays. judgment. all that subverts the morale of the latter. both directly and reflectively. and to thwart and defeat the payments of their just debts and demands. in lending the influence of their office. Whatever corrupts the community. to all. and those who are charged with its administration. These practices.152 all THE AMERICAN LAWYER. and if to one such vital organism. grows out of reasons which operate to sustain and make healthy the social organization. it teresting right grew . must be dangerous to the former. legal ability of their property and experi- ence. it is a powerful weapon for the proper education and discipline of families. Before I close under this head I must advert to of society.
in. A The question whether an advocate should defend a person for a crime of which he knows. No will is safe from their brazen and shameful attacks. when fully understood.THE "DUTIES' teaches charity. him to be guilty. generally. I believe. Upon feigned. until the doctrine of tes- tamentary disposition has come to be almost a mockery. do not intend to avoid the last-named issue by seeking refuge behind this third (c) proposition. and assumed grounds. lawyer is not justified in using or (c) resorting to dishonest means or practices in the defense of persons accused of crime. given to persons deliberately. and. that the subject. intentionally whom the testators to have it. has less practical importance than is generally ascribed to it. The sacred right and expressly desire not becomes nugatory. has always been a favorite topic for discussion. and out of. and when they are successful. and frustrate the testator's intention. which I have just laid down. 153 generates a respect for law and order. property is wrested from devisees and legatees. But the lawyers have rendered this plain principle of law nugatory. . In the outset. the legal profession. or believes. they break wills. I however. it is necessary to clearly define. and it OF A LAWYER.
largely. 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. what his disclosing information. there might be a defect in the technical proof against the defendant. On the other hand. he is a witness.154 THE AMERICAN LAWYER. made to him by his client. It may be. that there is a full. the peculiar circumstances of each case. upon ititious questions. case against the accused. Should the lawyer advise his client to plead guilty? Suppose he gave . the lawyer has personal knowledge of the crime. He may also derive his knowledge of a crime. for obvious reasons. duty? His mouth is closed by the law. which the confession would supply." of the guilt of the accused person. because the law prevents him from is In such a dilemma. be practically disqualified from acting as an advocate. technical. and consequently would. from a voluntary confession. the same as any layman. or sees. is what If meant by a "knowledge or belief. and must be conscientiously determined by the lawyer when they arise. even if he should wish to speak. if he is present at. its commission. communicated to him in his professional capacity. without his confession —which fact might influence the lawyer as to one course of conduct.
is a lawyer justified in defending the culprit? With this moral conviction of guilt upon his mind. in which prisoners have none. 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. or is belief. 155 such advice and the client refused to follow it? I repeat that each case must be determined as it arises. promptly.— THE "DUTIES" OF A LAWYER. which is not quickly communicated to the public. The court certainly can assign counsel. and from current and public report and rumor. is. as officers of the court. . With an opinion of guilt. do not. What question is. generally. meant. and about which the community. and lawyers in common. is derived from sources of information which are open to everybody. refer to. and upon which men generally form and base their opinions viz. would compel them to obey such orders. in view of its peculiar circumstances. No important criminal act is committed. that his knowledge. when the asked if a lawyer should defend a person accused of crime whom he "knows or believes" to be guilty. through the Press. briefly.. and their duty. therefore. based upon such sources of knowledge and belief. to defend all cases. keeping in sight the general principles which I shall hereafter. form an opinion.
The requirements of the law could not be met. social organization. as well as certain forms and rules for the trial of offenders. governed by law. the person who committed the bloody deed discovered and arrested. ance and stability. yet. These accused of crime. administration prudence. . all. a cold and atrocious murder may be committed. the guilty man would go unpunished. and satisfied. rests are indispensable conditions. criminal jurisprudence could without such general rules. There must necessarily exist in every community. criminal A person accused of crime. exact and clear definitions of crimes. juris- and humane. yet all of the witnesses who had knowledge of it should die. should is he of convicted. and justice would be thwarted. upon their continudepend the very existence of For instance. the application and enforcement of these forms of criminal procedure. While there is no doubt that. to of an intelligent. No system exist. prevent the conviction and punish- ment of guilty persons. right of The the lawyer. and the mind of the community morally convinced if of his absolute guilt. to defend persons upon broad and wellgrounded principles. is entitled to demand be that each.156 THE AMERICAN LAWYER. before of these conditions. at times.
without which. it is his duty to urge and demand the acquittal of his client. assert the dignity. In doing this. 157 that A his lawyer's right and duty. demand charged with crime. If the advocate refuses to defend. are lacking. charged. can have no existence. from what he may think of the charge or of the defense. and the other to his client. independence. almost passionately. from that moment the liberties of England are at an end. As Erskine eloquently. can be imagined. are. the most valuable part of the English Constitution. under such circumstances. and integrity of the English Bar. — said: "I will for ever. No finer or nobler exhibition of his real duty to the State. at all hazards. should be proceeded against in a legal and orderly manner. he assumes the character of the judge. and in proportion to his rank . notwithstanding his own moral conviction of If the elements constituting the crime guilt. impartial justice. in preserving and upholding the forms of the law. nay.THE "DUTIES" OF A LAWYER. to client. he assumes it before the hour of judgment. he performs a double duty one to the community. than the position of the lawyer. if the forms of the law are not complied with. 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.
as is known. until his guilt has been officially and finally declared. to defend he believes to be guilty. A lawyer can always demand that the forms of the law should be complied with of the lawyer. whom formation." This utterance. because he often does know. was made in a great public case. Why could see that the . might be used with equal force by an accessory after the fact. in the sense that he has a moral conviction of the guilt of his client. I do not place the right a client. and reputation. and which commands the veryjudge to be his counsel. puts the heavy influence of perhaps a mistaken opinion into the scale against the accused. The argument that the lawyer cannot know of the guilt of his client until he has been officially adjudged so. yet the principle applies to every case where law can be invoked in behalf of a party. which he has derived.158 THE AMERICAN LAWYER. upon the ground that he cannot know that his client is guilty. through the ordinary channels of in- and upheld. and that his duty to forms of the law are carried out. quite irrespective of individual knowledge. in whose favor the benevolent principle of English law makes all presumptions. by a court and jury. I place the right of the lawyer upon the ground it is that he is an officer of the law.
If the parent assists his the — . a house or other shelter to conceal him. given to a felon to hinder his apprehension. it is in first place requisite that he knows of the felony committed. is An accessory before. that the nearest relations are not suffered to aid or relieve one another. fore. or after the fact. There- make an accessory ex post facto. or open force and violence. where a felony is actually complete. commission of crime. or punall persons who aid. because the person whom he had assisted. severely. in order to do effectual justice. had not been adjudged judicially guilty? In every civilized government.THE DUTIES " OF A LAWYER. or abet. And so strict is the law. trial or punishment makes the assistor an accessory. and who relieves. to rescue or protect him. rules are adopted in the body of the criminal jurisprudence. or assists the felon. furnishing him with a horse to escape his pursuers. aid. in the ishment. or abet. to comforts. as. that he could not know that a crime had been committed. or who. recognized as almost as bad as the principal criminal. with the same reason as the lawyer. after its commission. a criminal to escape detection. 159 not every accessory after the fact declare. An accessory after the fact is a person who knows a felony to have been committed. money or victuals to support him. And generally any assistance whatever. to punish. capture.
however. for the maintenance of society. To do this he can — — knowledge and experience. the master his servant. or a moral employ his of the arts of conviction. THE AMERICAN LAWYER. therefore.160 child. does not come within this rule. if he simply demanding that the forms law be carried out. without a resort to dishonest and covert means and practices. or the servant his master. We see. to defend a person in those cases where he has a belief. If these views be correct. or shelter. And and I the confines his efforts to rules of the community cannot suffer. is quite clear. or even receives his wife. criminals to escape their just and necessary punishment. of the guilt of his client. that the lawyer's duty. if who have any of them com- mitted a felony. or assist. if the brother the husband receives the brother. it would seem to follow. and all advocacy in his attempts to acquit clients. the receivers become accessories ex post facto. the hand of the law is uplifted against those who aid. real service do not believe that any can be . or the child the parent. A married woman. with what strictness and severity. because she is presumed to act under the coercion of her husband. 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.
would give us a race of ideal lawyers at once 1 l Keen. lawyer No special rules can be laid or defeat. that "lawyers are ministers of justice. Court. justice. front him. In the complete performance of the latter. K . that a court is a place where justice 1 is judicially ad- and the remarks of an eminent Equity Judge. 161 rendered to the profession by pursuing this line of thought further. Keeping in view that he is an officer of the specific full propositions. laid down in beautiful but strong language. the author of the immortal Dialogues between a Doctor and a Student." p. " Reports in the Rolls * "Doctor and Student. and a useful officer of the court. Lord Langdale. the lawyer becomes the most useful and important member of the community a true patriot of his country. it is court in the real meaning of the term. all for kinds of conditions constantly condown. a faithful and intelligent representative of his client. nearly four 2 centuries ago. in the discharge of his duty. if it could be followed. With a of the general nature of his duties. Germain. And Christopher St. whether he will aid. a rule which. whom they practice" —the lawyer — cannot go far astray. or in considering any more conception with the himself to determine.: THE DUTIES OF A LAWYER. of the Laws of England." p. 659. 15. acting in aid of the Judge before ministered.
162 THE AMERICAN LAWYER. thou do observe and keep equity. 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. fore. that all that house may be seen thereby. And if thou do thus. it doth not spring up spontaneously or by intuition. and fly that which is evil. comes of training and education. the office made the . and as part of it. as thou wouldest should be done to thee. not wholly innate. is set in a lantern. and what he ought not to do. and then. which should guide the It is lawyer. self-denial. I trust the lantern that is in thy conscience shall never be extincted. and most important. It should be first. Along with. that thou love that which is good. at some time to master the history and science of the Law itself." "And I counsel thee. the lawyer is bound by study. that thou do nothing against Truth. it is the result of an exact and perfect study and comprehension of and duties of a lawyer. forasmuch as it behoveth thee to be occu- "As a light is in the pied in such things as pertain to the law. it is necessary that thou ever hold a pure and clean conscience. that thou do to another. and also that in every general rule of the law. part of his legal education." But this conscience. that thou do justice to every man as much as in thee is. and genuine hard work.
on the other. 163 of liberal reading.THE by a course " DUTIES " OF A LAWYER. the vision soon opened to him. keeping in view. race. on the one hand. even when accompanied by mere honesty of purpose. by nature and circumstances. but humane and generous. in the clearest and fullest sense. and run into the impractical and visionary. or the self-asserting. . To a man of his so equipped is whole duty. always. mind all and seek to eliminate from his narrow prejudices of nationality. otherwise. All his powers. or flippant. and prepared. he should enlarge his sympathies. and creed. that his standards of men should not be the abuse of the ideal. may become the limits fixed the cause of great evils.
and its evil results. in if my opinion. that eventually a new race of lawyers will appear. and to suggest remedies. will essentially mitigate. I proceed now to classify the existing con- ditions and their causes. — or Barristers. Therefore it would be useless. An old and pernicious system. the present generation of lawyers. and build a new one in its place. Attorneys. until by degrees the whole edifice is sound. as a whole. and new ideas of reform promulgated. as one would raze a house. or Solicitors.CHAPTER X. for they are. which. not exterminate. cannot be extirpated. inextricably. A conspicuously rotten plank may be replaced by a new one. CAUSES AND REMEDIES. The ground can be prepared. involved in the meshes of codification. divided into two classes. and Counselors. to attempt to reform. scatteringly. The seeds of reform are of slow growth. and it can be hoped. will take effect upon the next generation. evils. They bear fruit. They very rarely produce a full crop in the season in which they are sown. which. existing 164 . now.
also. and. from our expected future relations with that race. qualified. ELEMENTARY. wishes to study law should elementary education. examiners. AND LOOSENESS IN THE PRELIMINARY. under the direction of properly appointed. Deficiencies in education tion of law students. He should. II. but each candidate should pass through the ordeal. I. (a) and instruc- In length of time of legal apprentice- ship. IMPERFECTIONS. be able to pass an examination. of an actual examination. in one other modern language. Reform of the law cannot be superficial. in its addition the other necessary qualifications. It must begin at It must be contemporaneous with the bottom. No certificates from should be accepted. It must go to the root of the evil. and colleges.CAUSES AND REMEDIES. as proof of these requirements. the Latin language and general should know literature. 165 FIRST: THE FIRST CRITICISM IS THAT THERE ARE GENERAL DEFICIENCIES. AND LEGAL EDUCATION OF LAW STUDENTS. preferably Spanish. Insufficient educational requirements and examinations preliminary to matriculation as a legal apprentice. or schools. . A person a to who possess real. legal apprenticeship.
(c) No. it be confidently asserted. that he does not occupy a first rank in the profession. (d) No instruction in the functions and duties of legislators. and professional ethics. (/) No. It is avoided and shunned as rather disreputable. connected therewith. a certain obloquy. of legal apprentices. object. — may Notwithstanding this ignorant criticism. constitutional. that the study of criminal law. It should be not less which three. It is fashionable to taboo this branch of jurisprudence. nature. and citizen. (e) No. it is assumed. and the in- to fulfill this requirement in and attention neces- sarily superficial. In fine. it is ercise. but i and practice the time struction is too short. advocate. evidence. instruction in American historical. of be actually spent. than seven years. awaken and exthe best mental and moral qualities of lawyer. Columbia College undertakes one of her courses. or inadequate. instruction in the primary principles and elements of jurisprudence foundation. in its origin and purpose. in a law office. . and practice. and in the pleadings. or insufficient. and Federal and State. and has an able man to perform the function. and 1 spirit of laws.166 THE AMERICAN LAWYER. should clerk. in the functions and duties of lawyers. as a (b) Absolute want of instruction. instruction in criminal jurisprudence. To say of one "he is a purely criminal lawyer" involves. law. or insufficient.
instead of elementary Blackstone. substantially as follows 2. in his commentaries. There Colleges. 3. them are good and bad ones. law. has not considerable knowledge of criminal law. The abolition of "case" law as a fundamental means of instruction. from Law are superficial. by a complete mastery of Blackstone's. not a word. Deficient and non-systematic education in all of the branches of law. Evidence. but a judicious selection can be made by competent lawyers. Pleadings. Most of . Requirements of law examining boards is Academies and practically abolished. (g) No. Case law is taught. which should be dropped from a legal course.: : CAUSES AND REMEDIES. and the introduction of the study of law from text-books. or insufficient. who III. the greatest institutional is writer. In addition to prolonging the apprentice1 ship to seven years I advocate the following 1. 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. and Walker's American Law. in the office of a practicing lawyer. The study of institutional law. and Kent's Commentaries. clinical training. There are too hastily put together.
Criminal Jurisprudence. Domat. and spirit of law. with such books as the following : < Paley's "Moral and Political Philosophy. 13. 6. The law of contracts. The law of corporations. Constitutional Law. 12. The law of personal property. 15." Burlamaqui's " Natural Law. 8. Equity Jurisprudence. Macintosh's " Discourses on the Study of the Law of Nature and Nations. 9. 7. including Federal and State. The law of Executors and Adminis- trators. embracing Federal and State practice. 14." Judicious Selections from Savigny. upon the history and chronology of the law reports. study. foundation. 11. 4.168 latter THE AMERICAN LAWYER." Montesquieu's " Spirit of Laws." Puffendorf. Pothier. and Equity and Common-Law practice. 10. and the principles. Grotius. The law student should know the history of the re- . together with the principles of legislation and the duties of legislators. or education. The law of real property. and d'Aguesseau. A course of lectures. The law of principal and agent. Natural and civil law. 5. The domestic relations.
it can be converted into a delightful occupation. ALL PRODUCING THREE OF THE WORST ENEMIES OF JUSTICE AND JURISPRUDENCE. This order of legal study is of course arbiThe study of the law. (1) DELAYS. 16.. . have not embraced all of the involved in a complete legal education. such as Admiralty and Patent Law. under proper tuition. It de- pends upon the tuition. of the law and PRINCIPALLY. I. can be made interesting and fresh. and when and how it is commenced and pursued. and under what circumstances. BY WHICH THE PRACTICE OF THE LAW IS CONCENTRATED UPON FORM. E. AND (3) UNCERTAINTY. 169 and where. (2) COSTLINESS. SO CALLED. primarily. instead of being a burden. but these. 1 they were published or promulgated. the study should be begun in a natural way. But.CAUSES AND REMEDIES. and all of the other subjects omit1 1 ted. They can be specially pursued if desired. are necessarily encountered topics by the student in his general reading. FROM CODIFICATION. commencing with the organization of society. : logical and historical SECOND the existing state LAWYERS ARISES. RATHER THAN SUBSTANCE. the development of the law. TO SAY NOTHING OF ITS BALEFUL INFLUENCE UPON THE LAWYERS. The study of selected cases. trary. INVITING AND CREATING WHOLESALE TRICKERY AND SHARP PRACTICES. and. and an effort. and opening up to the student. ports.
170 THE AMERICAN LAWYER. and pleadings. multiply. Among other vain pretensions." between actions at law and . Reformers indulged in the futile. 1 1 Sec. assumptious sentence. it would be more truthful its to say." The effect of the introduction into American illogical. Jurisprudence of ignorant. and proceedings courts of this state!" How own the irony of legal history frowns on this or. to simplify and abridge of the the pleadings. and to change wholly the so-called grade. and ignorant. or standard. The Code has earned its perhaps. has and imper- of law. The those actions and suits. befog. of all its its intellectual been to deprive the practice science. attempt to amalgamate law and equity. has written own epitaph. 3339: " There is only one distinc- suits in equity. The difference between a common-law lawyer. It should be called: "An Act to complicate. and the forms of form tion of civil action. is the difference between a surgeon and a butcher. title it . render uncertain the practice. fect codification. have been abolished. Behold the title to the New York Code of Civil Procedure! "An Act practice. and proceedings of the courts of this State. and the practitioner under the Code.
the distinction — index! I only indulge in this single. and its forms and . the Courts of Equity. 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. CAUSES AND REMEDIES. Since the adoption of the Code in 1848. general. has been to divert the student. are engaged in the pursuit of technicality and form. sweeping. in what were known as Special Terms —where trials were had without a jury. Instead of seeking the truth.. 171 At the same time. 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. thousands of litigants have received purely equitable is Jurisprudence impracticable. of of the Code. statement. forbetween law and equity is abolished in New York! The effect of modern American codification. from a study of the elements and principles of jurisprudence. I cannot undertake a full criticism of codification. which is not receiving courts new interpretation from the or without stumbling The effort to upon some gross blunder! make the law. and to convert him into a disputer of the meaning of statutory language. they carefully preserved. that one cannot cast his eye upon any part a daily bath. And. the Courts and the Bar. relief.
" has now been thoroughly exposed and exof common-law ploded. We have now every one of the evils. to cause delay and expense in the administration of the law. without the certainty which had been evolved from it. has cost millions of dollars to suitors. in practice. justice. of silent wit- vindicated. and technique. to the whole of the law. — — — — The forms. to influence what was. of the violent criticism of the practice and pleading. as a science. has been to lower and cheapen the profession of the lawyer to throw the law into inextricable confusion and doubt to entail vast expense upon suitors to create law libraries filled with worthless books. of experience (since and the experiment has been a lamentable failure. THE AMERICAN LAWYER. an open book to all. Never. fallacy. it has ruined at least two generations of lawyers and it will probably ruin two more. of the it — common law. Invoke the thousands . in the old system. more completely and handsomely. containing records of disputes upon questions of form and practice and to substitute these latter and minor considerations for those of substance. ignorantly. We have had in New York 1848) of nearly sixty years codification. and right.172 practice. or its harmonious relations. upon which public sentiment was created. In money. called "law reform. was the system. and principally. complained of.
enshrined law reports. than to understand or who. in the shape of legal precedents. The forms of the common law. To say nothing of the extra costs and expenses. or the ability. never arbitrarily imposed. nesses.CAUSES AND REMEDIES. It . itching for the title of law reformers. York. when a few simple amendments would have remedied which testify that in the all to dig redundancies up whole. confound. and supplied all deficiencies. when the pruning knife was to my mind. but. simply the work came from the impatience of those who. and destroy to produce a — . most of the cases. to accomplish it. but the wellconsidered growth of ages of experience. found it more easy to destroy barbarians. and its practice. or who had an ambition to reform. not understanding what they destroyed. may have been the subject of some just criticism. struck a blow at the most prominent feature of the law. the attempt to simplify has been to bemuddle. to cut down and cast out as worthless a whole body of judicial procedure. all that was needed of —was. without the time. collected in 173 New on the shelves of law libraries. the manifold delays and intricacies of legal procedure. to extirpate a whole system to correct a few evils inseparable in some shape from any system. calling for amendment. arose out of mere questions of form and practice.
I am of course speaking as a whole. sophistical. illogical. and encyclopedias of law. a . chattering and quarreling over the meaning of words. and forms. Out of the confusion. to a search after cases. and unjust distinctions and arguments. rubies. and made to shine by false and artificial lights and colors. The manufacture of artificial diamonds. They are put together quickly. narrow. and blaze at a distance. but when their sparkle. from the study of the elements and principles of jurisprudence. without the magnifying glass. in the Code. He has become a mere "case lawyer." he stops at mere form. that it is almost impossible to detect their spurious quality. The modern Codes produce artificial or paste lawyers. there will gradually be formed. practice. has invited and encourages technical. and foren- lawyers. doubt. Codification has prevented the full development of the sic qualities of intellectual.174 race of THE AMERICAN LAWYER. in efforts to defeat real justice. The multiplication of precedents. they are found not to be of the real quality. analyses. and chaos of codification. have diverted the legal student. pigmy lawyers. qualities are put in a proper crucible. Legal digests. or first water. in the hands of an expert. and emeralds has attained such a state of perfection. They shine. and perfect moral.
that like is. IS DETRIMENTAL. how many lawyers' offices does an individual need to visit. of legal forms. which. practically. three codifications since 1848. For example. spreads over the whole system of jurisprudence. YERS. and continues illegal. like the ravages of a prairie fire. encourages. if the legal lost mind. . AND THE MORALE. still perseveres. leaving everything black and ruined. THIRD: THE EXCESSIVE NUMBER OF LAWBOTH TO THE COMMUNITY OF THE PROFESSION. and fraudulent practices. in his devastating work. much unnecessary and unfounded litigation is inaugu- and many disgraceful practices engendered. and after years of experiment we will land exactly at the spot from which we started. 175 and compact system. And the codifying fiend. way-worn and come traveler. un- founded. not ning. which will closely resemble that of the common law. in its course. logical tice. fate. to procure an attorney to make a defense to a suit.CAUSES AND REMEDIES. be not the evil to some otherwise more Facilis descensus Averni. pracand procedure. but upon sharpness and cunIn the effort to sustain themselves. in a jungles. because necessarily many of the law- yers depend. where there exists no rated. upon professional knowledge and accomplishments. Already there have been. and litigation. It creates. demands.
curtail the number FOURTH: the general lack of manners. there are dozfense. It An number would follow. if he wishes to institute an unfounded. lawyers makes the profession cheap and common—pleexcessive beian. or a brooch. not go beyond the first office. But do not place all of the blame upon the shoulders of the lawyers. a whole cause of action. ens of others who will act. He will. or an entire de- women spend days Cunning and trickery often displace real knowledge and ethics. or a present. as by not . If one sensitively honest lawyer be found. action.176 meritorious THE AMERICAN LAWYER. how much of the obloquy should upon the of. The lack of respect for the Judges. or substantial answer? Men and in searching for a peculiar kind of precious stone. AND THE ALMOST TOTAL LOSS OF AN espHt de COrpS. that the introduc- tion of a system. such as I here. have briefly outlined would immediately operate to of lawyers. AMONG THE MEMBERS OF THE BAR. And he will encounter the same experience. naturally. possibly. The lawyers will weave from a mere thread of truth. fall Besides. he will probably not be fatigued in the effort to find him. But when an individual wishes a lawyer to interpose a dishonest defense. or unjustifiable. clients? badly trained.
is When such a criterion adopted. TO THE EXCLUSION OF INTELLECTUALITY. REFINEMENT. AS THE SOLE CRITERION. produces a contempt for each other. and. of it is and moral influence. of what use. and deprived true ambition. which should be refinement and This has. evident that the ambition to excel by right methods must be crushed. by real merit. for the possession of plunder. and of the long and studious vigil? . positions. making the practice of the law. political and only social attained learning. habitually saluting 177 want them with uplifted hat. It FIFTH: has enabled its possessors to buy. professors hold them- A good-sized book could be written upon this aspect of the subject. undoubtedly. CULTURE. which we follow. THE ADVENT OF WEALTH.CAUSES AND REMEDIES. affected the prestige of the legal profession. AND LITERARY. OF ARISTOCRATIC. POSITION AND DISTINCTION. OR SOCIAL. like a fight between ruffians. its members. or secure. discourtesies brother among lawyers. As Burke says. then. for the profession. any profession selves. is the formation of character. Lack of manners. the respect for of the age and experience of lawyers." "The degree is of estimation in which held becomes the standard of the estimation in which the.
The THE RADICAL CHANGES WHICH HAVE OCCURRED IN ALL PROFESSIONS AND BUSINESS AND COMMERCIAL OCCUPATIONS AND RELATIONS. and professional honors and emoluments.178 THE AMERICAN LAWYER. supplant profound. technical. and politics. where hard common sense. then. fields of practice. effect of The . tends in the same direction. instead of pure counselors. RESULTING. good business judgment and acumen. can be obtained through politics. of the business. is based upon the ultimate outcome. and adds a positively corrupting element in the lawyer's ambition. which has been to deprive the lawyers of a large part of their old business. not law. (very soon it will be through politics alone). INTER ALIA. and perhaps more important. SIXTH: The institution of incorporated companies and agencies to transact conveyancing and legal business with cheapness and guaranties. become the aim and end of the lawyer's aspirations. and profits. If fame and power. legal knowledge and ability. where they become associates in business adventures. and to drive them into new. such influence as the profession gives. IN THE FOLLOWING: Changing law into a business. will be enlisted on the side of politics. fact that the profession of politics can secure judicial positions. and where their compensation.
make the occupation of a lawyer. IN JUSTICE TO THE BENCH. also tends to lay open to . one of pure commercial business. to lower the proit fessional standard. tending more and more to degrade the law into a mechanical occupation. They do not so much produce brevity of speech. of ornate.CAUSES AND REMEDIES. unnecessary and superfluous nay almost ridiculous. with all of their elevating and refining influences. OR OTHER SOCIAL. THE ADOPTION BY THE COURTS. and finished legal arguments. These rules. otherwise. classic. INFLUENCES IN THE PERFORMANCE OF THEIR DUTIES. as they destroy the taste. SUSCEPTIBLE TO POLITICAL. TO A GREATER OR LESS DEGREE. of an undefined FEELING AND SENTIMENT THAT JUDGES IN CERTAIN LOCALITIES ARE. 179 Rendering the study and practice of forensic eloquence. FRIENDLY. and render useless the cultivation. and eral all those habits of mind which connect the profession with literature and genknowledge. EIGHTH: the existence Whatever tends. WHICH FURTHER LIMIT THE TRUE SCOPE OF THE LAWYER'S FUNCTIONS. — SEVENTH: the increase of litigation HAS CAUSED (PERHAPS. OF RULES. I SHOULD SAY " FORCED"). OR EVEN CORRUPT.
or legal learning. and without regard to the harmony of the judicial system. this imputation. or influence. upon the mind of the judge political —one to whom. judgment of the highest importance the judge can throw his discretion. Not undoubtedly exists in many necessarily based upon its the physical corruption of the judges (a rare vice). or is the question "close" is —when where strict. free from actual bribery. or opinion. concealing his judicial discretion in a mist of meta- — .— 180 THE AMERICAN LAWYER. 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. legal in cases of intricacy or doubt. the bar upon the and the com- munity. equally as bad in judges. but one exercising a supposed moral. independent. It makes it appear to the litigants that it is necessary to select not an advocate of a higher order of intellectual endowments. —there results is a moral corruption. But this sentiment of our larger cities. This is the worst species of corruption because the judge. in favor of his friends.
stifle own ability. The power . NINTH: THE ENORMOUS EXTENSION OP THE PRACTICE OF CONTINGENT COMPENSATION.CAUSES AND REMEDIES. and on the administration of the law. from expressing any final opinion upon this subject. it is sure great hardship and wrong would occur. readily. contrary to his inner conscience. and to the real equities of the case. the lawyers who breathe in such an atmosphere. IT IS NOT BAR. many some arrangement beof a contingent char- tween lawyer and acter. POSSIBLE. appreciated and the clients and courts do not escape their are — the contagion. as bearing on the morale of the profession. can be. and resort to means which more certain of success. sacrifice their own convictions. It is also one of great delicacy. EXACTLY. The power and wealth I refrain of our corporations are so tremendous. In litigation involving large and important results. that in instances. which such conditions have upon the bar. TO SAY. without client. 181 physical doubt and false reasoning. TO SOME EXTENT. It is one of profound importance. HAS UNDOUBTEDLY AFFECTED THE CONDITION OF THE HOW GREAT. awards the judgment. The natural demoralization. without a possibility of redress.
But the point is whether the practice of contingent fees has not outgrown all just proportions. and with professional honor. can be subserved. without litigation. often of a doubtful character. making the lawyer a . with the increase of litigation. and is not the direct cause of much unfounded litigation and blackmail. and concentrated methods. When the interests of justice. a kind of fraud upon the court. a formulator of It is. of the results of an appeal to the law. and this adds another powerful motive to contingent arrangements. conin party to the suit. with lawyers. the ordinary difficulties which surround the subject. with the interests of the community.182 THE AMERICAN LAWYER. necessarily. are almost overwhelming. In those instances. of these bodies. has increased. the question of fees is changed into commissions. and when the fee itself in no wise takes advantage of his necessities. and a perversion and confusion of the mind of the advocate. do not prevail. such practice generally can be reconciled. besides. The sists ethical objection. and therefore. on behalf of a poor. or divisions of profits. Without contingent arrangements. The uncertainty. their power would become oppressive and tyrannical. client. or helpless. to contingent fees. where pure commercial business results are sought for. litigation. and the lawyer being transferred to a mere agent.
for the In the administration of justice. many cause- ELEVENTH: the lawyers should wear a IN COURT. 1 I alluded to this subject. and. is another element. and no matter how pusillanimous in figure or mind. GOWN OR APPROPRIATE BADGE The fact that lawyers do not wear a distinctive gown. in Court. I think have already I have said that this division would. 81. The single judge sitting in his judicial robes creates a certain feeling of awe. and making their calling a marked one. distinguishing them from suitors and spectators. of. : TENTH decided No matter how this question might have been many years ago. in England. stop less suits which are now begun. require the profession to be divided into two classes. which tends to decrease the respect of the community. the factitious influences are very great." but I have felt it unnecessary to open it fully here. or badge. he effectually controls the vast audience before him. alone.CAUSES AND REMEDIES. in awakening and holding the respect of the community. " So may The world subject. counselors or barristers. and increase business. 2d. profession. 'Much has been written upon this and con. . pro the outward shows be least themselves is yet deceived with ornament. p. See ante. the vast changes in. 183 the non-existence of a division of the bar into two classes: 1st. attorneys or solicitors.
is growing dim. The distinction between a federation of States and a Nationality. is the saving ingredient in the composition of a democratic liberty. I shall Here end. 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. his acts and mestic opinions should be of the greatest value to the would build up a race of pure lawyers. I hope it is unnecessary to say that I love the profession. That judgment is constantly called into exercise in every description of do- and personal concern. I vigor. His mind and training incline him to free and pure thought and independent judgment. The country needs such a class more than ever. where his mind is naturally affected by the bias of an advocate. and have at heart members. It will interest of social . The Bar. permeatall its ing and vitalizing it branches. in its pristine people. it seems to me. The freedom of some of my remarks will doubtless create antagonism in some minds.184 THE AMERICAN LAWYER. and necessarily the people are less interested in public questions. when he enters the field of jurisprudence and politics. while system of government. Trained in the knowledge of human nature. as far removed from commercialism as possible. employment. and securing sometimes restrains it. in the and political happiness.
I must freely and in the venerable language familiar maintain. convince me of the truth of what I have written. have called attention. Otherwise I noble calling. to us all. on a large scale. as the life of which has formed so large a part." . "Of this I put myself upon the counto which I try. With such I have Long and many-sided ex- perience and observation. it should not have written. an entire sympathy.CAUSES AND REMEDIES. however. 185 probably be the strongest where the lawyer himself is the purest. That reform is needed. in all those respects. The welfare of our is as dear to me. I can pity the temptations with which it abounds even while I urge its reform. and for all those great purposes. He will think that he advocates the interest of the profession by denying the existence of its evils. and has had the least opportunity of actual contact with certain kinds of practice.
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