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Title: An Essay on Professional Ethics

Author: George Sharswood

Release date: August 20, 2007 [eBook #22359]

Language: English

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Transcriber's Notes
Minor typographical errors have been corrected
without note.
A table of contents, though not present in the
original, has been provided below:
PREFACE.
INTRODUCTION.
PROFESSIONAL ETHICS.
APPENDIX.
No. I.
No. II.
No. III.

Professional Ethics.

AN ESSAY

ON

PROFESSIONAL ETHICS.

BY

GEORGE SHARSWOOD.

Id non eo tantum, quod si vis illa dicendi malitiam instruxerit,
nihil sit publicis privatisque rebus perniciosius eloquentia: sed
nos quoque ipsi, qui pro virile parte conferre aliquid ad
facultatem dicendi conati sumus, pessime mereamur de rebus
humanis, si latroni comparemus hæc arma, non militi.
Quinct. De Inst. Or.

Second Edition.

PHILADELPHIA:
T. & J. W. JOHNSON & CO.,
LAW BOOKSELLERS AND PUBLISHERS,
NO. 535 CHESTNUT STREET.
1860.

Entered, according to Act of Congress, in the year 1860,

BY T. & J. W. JOHNSON & CO.,

In the Clerk's Office of the District Court for the Eastern District of Penn'a.

C. SHERMAN & SON, PRINTERS,
S. W. Cor. Seventh and Cherry Streets, Philadelphia.

TO

MY HONORED MASTER,

JOSEPH R. INGERSOLL, LL.D.,
INSCRIBED

AS A

TESTIMONY OF

RESPECT AND GRATITUDE.

PREFACE.
The following Essay was originally published under the title of "A
Compend of Lectures on the Aims and Duties of the Profession of the Law,
delivered before the Law Class of the University of Pennsylvania." A
portion of it had been read by the author as an Introductory Lecture at the
opening of the Fifth Session of the Law Department of that Institution,
October 2d, 1854. The young gentlemen, alumni, and students of the
school, who were present on that occasion, requested a copy for
publication, in order that each of them might possess a memento of their
connection with the Institution. The author preferred to publish the entire
Compend than merely a part of it. He hesitated much in doing so, because
the questions discussed are difficult, and opinions upon them variant, and
he could scarcely hope that he had in every case succeeded in just
discrimination. A review of the matter now, when a second edition has been
called for, has suggested, however, no important change in the principles
advanced, though a few additions have been made, some inaccuracies
corrected, and an introduction upon the importance of the profession, in a
public point of view, prefixed.
G. S.

INTRODUCTION.
The dignity and importance of the Profession of the Law, in a public point
of view, can hardly be over-estimated. It is in its relation to society at large
that it is proposed to consider it. This may be done by showing its influence
upon legislation and jurisprudence. These are the right and left hands of
government in carrying out the great purposes of society. By legislation is
meant the making of law—its primary enactment or subsequent alteration.
Jurisprudence is the science of what the law is or means, and its practical
application to cases as they arise. The province of legislation is jus dare—of
jurisprudence, jus dicere. The latter is entirely in the hands of lawyers as a
body—the former almost entirely.
Legislation is indeed a nobler work than even jurisprudence. It is the
noblest work in which the intellectual powers of man can be engaged, as it
resembles most nearly the work of the Deity. It is employed as well in
determining what is right or wrong in itself—the due proportion of injuries
and their remedies or punishments—as in enforcing what is useful and
expedient. How wide the scope of such a work! The power of society over
its individual members, or, in other words, sovereignty, which is practically
vested in the legislature, is a type of the Divine power which rules the
physical and moral universe. "There is one Lawgiver," says the Apostle
James. Not that the Supreme Being is the sole universal lawgiver in the
sense of a creator of law, whose will alone determines the boundaries of
right and wrong. God is the creator of the beings who are the subjects of
law. He is the author of law—the one lawgiver—in the same sense that he,
who first discovered a plain figure, may be said to be the author of all
theorems, which may be predicated of it. He who first called attention to the
curious curve, made by a point in the periphery of a wheel as it turns on the
ground, is in a certain sense the discoverer of all the truths, which may be
mathematically demonstrated in respect to it.
Law in its true sense is not the work of mere will—not an act of intellectual
caprice. It is a severe and necessary deduction from the relations of things.
The Divine legislator sees and knows these relations perfectly. He can draw

no wrong deduction from them. He can make no mistake. Whatever laws
have certainly emanated from Him are certainly right. This is the sense in
which it is true that "there is one Lawgiver:" all others but attempt the work;
He alone is competent to perform it. There is no mathematical certainty in
our reasoning on moral as there is on physical relations. We know that the
three angles of a triangle are equal to two right angles with an assurance we
can never have in regard to any moral truth whatever. The Divine law is a
deduction necessarily and mathematically certain as much so as any truth in
geometry. Human law can aim only at such a probable deduction as results
from a finite and imperfect knowledge.
The system of law delivered by Moses to the Jews deserves, therefore, the
most careful study at the hands of all who believe him to have been a
divinely commissioned lawgiver. These laws were not intended for any
other people than the Israelites; they were adapted to their circumstances,
climate, country, neighbors, to the period of the world when they were
promulgated, and during which they were to prevail. They were certainly
not meant as a model for any other form of government, for any other
people, or for any other time. Many laws are to be found there which are
unnecessary and superfluous if applied elsewhere. Many actions, innocent
in themselves, are prohibited. All the mala prohibita are not mala in se. But
one thing is as clear as a sunbeam, and that is a very important light to the
student of Ethics; if God was the author of these laws, nothing morally
wrong was commanded or allowed by them. When it was said of the Jews
through the prophet, "I gave them statutes which were not good," it cannot
mean not morally good; laws which it would be sinful in them to obey. The
word in the original is not the word appropriated in that language to right,
conformity to rule, but to goodness in its most general sense. Good statutes
mean wise and expedient statutes. By no process can the logical mind be
brought to the conclusion that the perfectly wise and good lawgiver, in
framing a code of laws for any people, would impose as a punishment "for
the hardness of their hearts," a penalty, submission to which would itself be
punishable as a sin against the law of nature. He might command or allow
as such punishment what in itself was inexpedient and injurious to them,
and which upon the promulgation of a new law repealing the old and
prohibiting what it allowed, would become by the sanction of the same
lawgiver thenceforth universally malum prohibitum. The authority of God

as a lawgiver is certainly not confined to a mere declaration of what is right
or wrong by the law of Nature.
There can be no merely arbitrary laws. It is necessary to bear in mind that
we are now considering the province of the legislator, who ought to enact
no law without an end. "Civil legislative power," says Rutherforth (B. II, c.
vi, s. 10), "is not in the strict sense of the word an absolute power of
restraining or altering the rights of the subjects: it is limited in its own
nature to its proper objects, to those rights only in which the common good
of the society or of its several parts requires some restraint or alteration. So
that whenever we call the civil legislative power, either of society in general
or of a particular legislative body within any society, an absolute legislative
power, we can only mean that it has no external check upon it in fact; for all
civil legislative power is in its own nature under an internal check of right:
it is a power of restraining or altering the rights of the subjects for the
purpose of advancing or securing the general good, and not of restraining or
altering them for any purpose whatever, and much less for no purpose at
all." There are, therefore, no arbitrary laws which fulfil the end of law.
Doubtless the true objects of society and government may be mistaken by
him who sets up to be law-maker, or if those objects are properly
appreciated, the means for advancing them may be mistaken. It is not
wonderful that in a matter which demands the highest wisdom, many
should try and fail.
It becomes important to inquire what are the true ends of society and
government? Man is a gregarious animal—a social being. He may exist in
solitude, but he cannot enjoy life: he cannot perfect his nature. Those who
have watched and studied closely the habits of those irrational animals, who
live in communities, as the ant, the bee, and the beaver, have observed not
only a settled system and subordination, but the existence of some
wonderful faculty, like articulate speech, by which communication takes
place from one to another; a power essential to order. Man, the highest
social animal in the scale of earthly being, has also the noblest faculty of
communication.
The final cause—the reason why man was made a social being—is that
society was necessary to the perfection of his physical, intellectual, and
moral powers, in order to give the fullest return to the labor of his hands

and to secure the greatest advances in knowledge and wisdom. It is for no
vain national power or glory, for no experimental abstraction, that
governments are instituted among men. It is for man as an individual. It is
to promote his development; and in that consists his true happiness. The
proposition would be still more accurate were it said, society is constituted
that men may be free—free to develop themselves—free to seek their own
happiness, following their own instincts or conclusions. Without society—
and government, which of course results from it—men would not be free.
An individual in a state of isolation might defend himself from savage
beasts, and more savage men, as long as his strength lasted, but when
sickness or age came on, the product of the labor of his hands, accumulated
by a wise foresight to meet such a contingency, would become the prey of
the stronger. The comparatively weak-minded and ignorant would be
constantly subject to the frauds of the more cunning.
It is enough to look at the effects of the division of employments and the
invention of labor-saving machinery, to recognize the invaluable results of
society in the development of wealth and power. In a state of isolation a
man's entire time and strength would be needed for the supply of his
physical wants. As men advance in knowledge and wisdom the standard of
their mere physical wants is elevated. They demand more spacious and
comfortable dwellings, more delicate viands and finer clothing.

"Allow not nature more than nature needs,
Man's life is cheap as beasts'."

It is not true that men would be morally better or happier, if their style of
living were reduced to the greatest plainness consistent with bare comfort.
Our taste in this respect, as for the fine arts, as it becomes more refined,
becomes more susceptible of high enjoyment. When large fortunes are
suddenly made by gambling, or what is equivalent thereto, then it is that
baleful luxury is introduced—a style of living beyond the means of those
who adopt it, and spreading through all classes. Taste, cultivated and
enjoyed at the expense of morals, degrades and debases instead of purifying
and elevating character. Men, who have accumulated wealth slowly by
labor of mind or body, do not spend it extravagantly. If they use it liberally,
that creates no envy in their poorer neighbor, no ruinous effort to equal
what is recognized to be the due reward of industry and economy. The

luxury, which corrupted and destroyed the republic of Rome, was the result
of large fortunes suddenly acquired by the plunder of provinces, the
conquests of unjust wars. The most fruitful source of it, in our own day, is
what has been well termed class legislation—laws which either directly or
indirectly are meant to favor particular classes of the community. They are
supported by popular reasons and specious arguments, yet there is one test
of the true character of such laws, an experimentum crucis, of which, in
general, they cannot bear the application. Legislation, which requires or
which will pay to be bored or bought, is unequal legislation; and therefore
unwise and unjust. Bentham's rule, though false as the standard of right and
wrong, is in general the true rule of practical legislation, the greatest good
of the greatest number. It is expressed with the most force and accuracy by
that master of the science, Bynkershoek; Utilitas, utilitas, justi prope mater
et æqui: in which observe that the word prope is emphatic. Legislation for
classes violates this plain rule of equal justice, and moreover does not, in
the long run, benefit those for whom it is intended. The indirect evils upon
society at large are even more injurious than those which are direct. Men
are often thus poor to-day and rich to-morrow. The bubble, while it dances
in the sunbeam, glitters with golden hues, though destined almost
immediately to burst and be seen no more.
What government owes to society, and all it owes, is the impartial
administration of equal and just laws. This produces security of life, of
liberty, and of property. It has become a favorite maxim, that it is the duty
of government to promote the happiness of the people. The phrase may be
interpreted so as to mean well, but it is a very inaccurate and unhappy one.
It is the inalienable right of men to pursue their own happiness; each man
under such restraints of law as will leave every other man equally free to do
the same. The true and only true object of government is to secure this right.
The happiness of the people is the happiness of the individuals who
compose the mass. Speaking now with reference to those objects only,
which human laws can reach and influence, he is the happy man, who sees
his condition in life constantly and gradually, though it may be slowly,
improving. Let government keep its hands off—do nothing in the way of
creating the subject-matter of speculation—and things naturally fall into
this channel. There will be some speculators, as there will be some
gamblers; but they will be few. The stock market is filled with fancies,

which the government has manufactured and continues to manufacture to
order. It is the duty of government to encourage the accumulation of the
savings of industry. The best way to do so is to guard the strong box from
the invasion of others, and not itself to invade it. Property has an especial
claim to protection against the government itself. The power of taxation in
the legislature is in fact a part of the eminent domain; a power that must
necessarily be reposed in the discretion of every government to furnish the
means of its own existence. One grievous invasion of property—and of
course ultimately of labor, from whose accumulations all property grows—
is by government itself, in the shape of taxation for objects not necessary
for the common defence and general welfare. Men have a right not only to
be well governed, but to be cheaply governed—as cheaply as is consistent
with the due maintenance of that security, for which society was formed and
government instituted. This, the sole legitimate end and object of law, is
never to be lost sight of—security to men in the free enjoyment and
development of their capacities for happiness—security—nothing less—
but nothing more. To compel men to contribute of the earnings or
accumulations of industry, their own or inherited, to objects beyond this,
not within the legitimate sphere of legislation, to appropriate the money in
the public treasury to such objects, is a perversion and abuse of the powers
of government, little if anything short of legalized robbery. What is the true
province of legislation, ought to be better understood. It is worth while to
remark, that in every new and amended State constitution, the bill of rights
spreads over a larger space; new as well as more stringent restrictions are
placed upon legislation. There is no danger of this being carried too far; as
Chancellor Kent appears to have apprehended that it might be. There is not
much danger of erring upon the side of too little law. The world is
notoriously too much governed. Legislators almost invariably aim at
accomplishing too much. Representative democracies, so far from being
exempt from this vice, are from their nature peculiarly liable to it. Annual
legislatures—with generally two-thirds new members every year—increase
the evil. The members fall into the common mistake, that their commission
is to act, not to decide in the first place whether action is necessary. They
would be blamed and ridiculed, if they adjourned without doing something
important. Hence the annual volumes of our Acts of Assembly are fearfully
growing in bulk. It is not merely of the extent of local legislation, the vast
multiplication of charters for every imaginable purpose, or of the constantly

recurring tampering with the most general subjects of interest, finance,
revenue, banking, education, pauperism, &c., that there is reason to
complain; but scarce a session of one of our legislatures passes without rash
and ill-considered alterations in the civil code, vitally affecting private
rights and relations. Such laws are frequently urged by men, having causes
pending, who dare not boldly ask that a law should be made for their
particular case, but who do not hesitate to impose upon the legislature by
plausible arguments the adoption of some general rule, which by a
retrospective construction, will have the same operation. It is a most
monstrous practice, which lawyers are bound by the true spirit of their oath
of office, and by a comprehensive view of their duty to the Constitution and
laws, which they bear so large a part as well in making as administering, to
discountenance and prevent. It is to be feared, that sometimes it is the
counsel of the party who recommends and carefully frames the bill, which,
when enacted into a law, is legislatively to decide the cause. It is time that a
resort to such a measure should be regarded in public estimation as a
flagrant case of professional infidelity and misconduct.
This brief sketch of the true province of legislation is enough to evince its
vast importance. How great is the influence of the lawyers as a class upon
legislation! Let any man look upon all that has been done in this
department, and trace it to its sources. He will acknowledge that legislation,
good or bad, springs from the Bar. There is in this country no class of
lawyers confined to the mere business of the profession—no mere attorneys
—no mere special pleaders—no mere solicitors in Chancery—no mere
conveyancers. However more accurate and profound may be the learning of
men, whose studies are thus limited to one particular branch, it is not to be
regretted either on account of its influence on the science or the profession.
The American lawyer, considering the compass of his varied duties, and the
probable call which will be made on him especially to enter the halls of
legislation, must be a Jurist. From the ranks of the Bar, more frequently
than from any other profession, are men called to fill the highest public
stations in the service of the country, at home and abroad. The American
lawyer must thus extend his researches into all parts of the science, which
has for its object human government and law: he must study it in its grand
outlines as well as in the filling up of details. He is as frequently called
upon to inquire what the law ought to be as what it is. While a broad and

marked line separates, and always ought to separate the departments of
Legislation and Jurisprudence, it is a benefit to both that the same class of
men should be engaged in both. Practice will thus be liberalized by theory,
and theory restrained and corrected by practice. The mere abstractionist or
doctrinaire would aim at the formation of a code of great simplicity: the
practitioner sees in it the parent of uncertainty and injustice. Legal
propositions cannot be framed with the certainty of mathematical theories.
The most carefully studied language still leaves room for interpretation and
construction. Time itself, which works such mighty changes in all things,
produces a state of circumstances not in the mind of the lawgiver. The
existing system, it may be, is an unwieldy, inconvenient structure, heavy
and grotesque from the mixed character of its architecture outwardly,
inwardly its space too much occupied and its inmates embarrassed by
passages and circuities. The abstractionist would at once demolish it, and
replace it by a light, commodious and airy dwelling, more symmetrical and
chaste in its appearance, better fitted for the comfort and usefulness of its
inhabitants. The practitioner, who has become familiar with it, who
observes and admires that silent legislation of the people, which shows
itself not on the pages of the statute book, and receives its recognition in
courts of justice only after it has ceased to need even that to give it form
and vitality, and who understands, therefore, how, with little inconvenience,
it is made to accommodate itself to every change of condition, sits down to
a careful calculation of the cost and risk of such wholesale change. History
and practical experience, alike, suggest to him, that the structure is a castle
as well as a dwelling, a place for security as well as comfort; that its
foundations have been laid deeply on the solid rock—its masonry more
firmly knit together by the time it has endured. Yet he will not deny that
what can be done consistently with security ought to be done. It is worse
than in vain to oppose all amendment. It will break down every artificial
barrier that may be reared against it, if it be not quietly and wisely directed
in those channels which it seeks at the least expense to security and
stability. Surely it is not conceding too much to this spirit to admit, that
laws should be composed in accurate but perspicuous language, without
redundancy of words or involution of sentences; that the policy of public
measures should not be wrapt up in the folds of State mystery; and that all
legislation should be based upon the principle of leaving the greatest liberty
of private judgment and action, consistent with public peace and private

security. A blind attachment to principles of jurisprudence or rules of law
because they are ancient, when the advancement of the useful arts, the new
combinations of trade and business, and the influence of more rapid and
general intercourse demand their repeal or modification, is as much to be
deprecated as rash innovation and unceasing experiment. Indeed it scarcely
ever fails to defeat its own end, and though it may retard for a while,
renders the course of reform more destructive than it otherwise would have
been. True conservatism is gradualism—the movement onward by slow,
cautious, and firm steps—but still movement, and that onward. The world,
neither physically, intellectually, nor morally, was made to stand still. As in
her daily revolutions on her own axis as well as her annual orbit round the
sun, she never returns precisely to the same point in space which she has
ever before occupied, it would seem to be the lesson which the Great
Author of all Being would most deeply impress upon mind as he has written
it upon matter; "by ceaseless motion all that is subsists."
What has thus been very cursorily presented will evince that it is the
province of legislation, by slow and cautious steps, to amend the laws, to
render them more equal in their operation upon all classes, not favoring the
rich more than the poor, nor one class of either more than another,
providing an easy, cheap, and expeditious administration of justice by
tribunals, whose learning and impartiality shall be so secured as to possess
the confidence of the community, and by general rules for the regulation of
conduct and the distribution of estates most conformed to the analogies of
that system, which is familiar to the people in their common law.
Great as is the influence which the profession of the law can and does
exercise upon the legislation of a country, the actual administration of law is
entirely in their hands. To a large extent by private counsel, by the
publication of works of research and learning, by arguments in courts of
justice to assist those who are to determine what is the law, and to apply it
to the facts, as well as in the actual exercise of judicature, this whole
important province of government, which comes home so nearly to every
man's fireside, is intrusted necessarily to lawyers.
In this country we live under the protection of written constitutions; not
only so, but written constitutions, which have assumed to place limits upon
the power of majorities, acting at least through their ordinary

representatives. The construction of these constitutions, or constitutional
law as it is termed, forms a very important branch of American
jurisprudence. There have been, and are, in other countries, charters, written
or unwritten—organic or fundamental laws—but without this distinguishing
feature. The fundamental laws, thus established in point of fact, emanate
from the government, and have no sanction beyond the oath of those
intrusted with the administration of them, the force of public opinion, and
the responsibility of the representative to his constituent. Our constitutions
emanate not from the government, but the State, the society, the creator of
the government; and are, therefore, in the strictest sense of the words, leges
legum. The radical principle of our system is, that the act of the legislative
body, beyond or contrary to the power confided to it by the Constitution, is
a nullity, and absolutely void. The courts must so pronounce, and the
executive must execute their judgments with the whole force of the State.
Upon such a subject it is best to use the very language—the ipsissima verba
—of John Marshall, as, at the same time, expressing the doctrine with the
greatest force and perspicuity, and presenting, in the mere statement, the
most convincing argument of its importance. "It is emphatically the
province and duty of the judicial department to say what the law is. Those
who apply the rule to particular cases, must, of necessity, expound and
interpret that rule. If two laws conflict with each other, the courts must
decide on the operation of each. So if a law be in opposition to the
Constitution; if both the law and the Constitution apply to a particular case,
so that the court must either decide that case conformably to the law,
disregarding the Constitution, or conformably to the Constitution,
disregarding the law: the court must determine which of these conflicting
rules governs the case. This is of the very essence of judicial duty. If, then,
the courts are to regard the Constitution, and the Constitution is superior to
any ordinary act of the legislature, the Constitution, and not such ordinary
act, must govern the case to which they both apply. Those, then, who
controvert the principle that the Constitution is to be considered in court as
a paramount law, are reduced to the necessity of maintaining that courts
must close their eyes on the Constitution and see only the law. This doctrine
would subvert the very foundation of all written constitutions. It would
declare that an act, which, according to the principles and theory of our
government, is entirely void, is yet, in practice, completely obligatory. It
would declare that, if the legislature shall do what is expressly forbidden,

such act, notwithstanding the express prohibition, is, in reality, effectual. It
would be giving to the legislature a practical and real omnipotence with the
same breath which professes to restrict their powers within narrow limits. It
is prescribing limits, and declaring that those limits may be passed at
pleasure." (Marbury v. Madison, 1 Cranch, 177.) More weighty words than
these have never, speaking of human things, fallen from the lips of man:
weighty in themselves from their own simple but eloquent conclusiveness
—weightier still from their unspeakable importance, the immeasurable
influence they have had, and, it is to be hoped, will ever continue to have,
upon the destinies of the United States of America. The judiciary
department, though originating nothing, but acting only when invoked by
parties in the prosecution of their rights, is thus necessarily an important
political branch of the government. That department spreads the broad and
impregnable shield of its protection over the life, limbs, liberty, and
property of the citizen, when invaded even by the will of the majority. Our
Bills of Rights are, therefore, not mere enunciations of abstract principles,
but solemn enactments by the people themselves, guarded by a sufficient
sanction. They have not, perhaps, as yet, carried far enough their provisions
for the security of property from the unjust action of government. The
obligation of contracts has been declared sacred; the right of eminent
domain restricted by the provision for compensation. Yet, even as to
contracts, the legislature may still exercise dangerous powers over the
remedy, short of taking it away entirely, and over the rules of evidence. As
to eminent domain, they possess an undefined right to determine the time
and manner of ascertaining the compensation. Our constitutions are
frequently undergoing revision; and too much care cannot be exercised to
strengthen our securities in this quarter. Personal liberty, trial by jury, the
elective and other political franchises, liberty of conscience, of speech and
of the press, are able to protect themselves in a great measure from their
own democratic affinities. It is true, that there really is no difference
between wresting from a man the few dollars, the products or savings of his
industry for any period of time, and depriving him of his liberty, or chaining
him to a log, to work for another during the same period. Property
eminently stands in need of every parchment barrier, which has been or can
be thrown around it. An eminent Judge in our own State once threw out the
opinion that there existed in the Constitution no disaffirmance of the power
of the legislature to take the property of an individual for private uses with

or without compensation. "The clause," he argued, "by which it is declared
that no man's property shall be taken or applied to public use, without
compensation made, is a disabling, not an enabling one, and the right would
have existed in full force without it." (Harvey v. Thomas, 10 Watts, 63.)
Fortunately, the decision of the court in that case did not require a resort to
that reasoning, and but little examination was sufficient to satisfy the mind
that this obiter dictum was unsustained by either principle or authority. A
power in the legislature to take the property of A. and give it to B. directly,
would be of the very essence of despotism. When it is declared in the Bill of
Rights that no man shall be deprived of his life, liberty, or property, unless
by the judgment of his peers, or the law of the land, this phrase, "law of the
land," does not mean merely an act of the legislature. If it did, every
restriction upon the legislative department would be practically abrogated.
By an authority as old as Lord Coke, in commenting upon these same
words in Magna Charta, they are to be rendered "without due process of
law: that is, by indictment or presentment of good and lawful men, when
such deeds be done in due manner, or by writ original of the common law,
without being brought into answer but by due process of the common law."
(2 Inst. 50.) The American laws are numerous and uniform to the point (see
1 American Law Mag. 315); and the same eminent Judge, to whom
reference has been made in a later case, declared his adhesion to the sound
and true doctrine in the most emphatic language, without noticing his own
previous dictum to the contrary. "It was deemed necessary," said he, "to
insert a special provision in the Constitution to enable them (the legislature)
to take private property even for public use, and on compensation made; but
it was not deemed necessary to disable them specially in regard to taking
the property of an individual, with or without compensation, in order to
give it to another, not only because the general provision in the Bill of
Rights was deemed sufficiently explicit for that, but because it was
expected that no legislature would be so regardless of right as to attempt it.
Were this reasonable expectation to be disappointed, it would become our
plain and imperative duty to obey the immediate and paramount will of the
people, expressed by their voices in the adoption of the Constitution, rather
than the repugnant will of their delegates acting under a restricted but
transcended authority." (Norman v. Heist, 5 W. & S. 171.)

Yet, while the right of private property cannot be thus directly invaded, its
security against the acts of the legislature is not as perfect as it might and
ought to be made. The legislature must be allowed a large discretion in
judging what is a public use: on that pretext much may be brought within its
sweep unjustly, and the courts, in the absence of a constitutional rule, would
be embarrassed in defining its limits. Experience has shown that much
power to do wrong lurks under grants by no means essential to the public
good. Besides what has been before referred to, the assumption of judicial
functions by the Legislature and the broad field of Chancery jurisdiction
over trust estates, which it has been held that they may exercise
immediately, if they see fit, instead of vesting them in appropriate tribunals,
are fraught with serious danger. The proneness of bodies so constituted to
disembarrass themselves of the ordinary rules of evidence, to act upon ex
parte statements and testimony imperfectly authenticated, as well as the
absence of all legal forms from their proceedings, and their numbers,
among whom the responsibility of giving due attention to the case is
divided, add to the peril. The power of legislating retrospectively has far too
wide a scope; the constitutional inhibition of ex post facto laws having been
construed to apply to criminal or penal cases merely, restraining the
legislature from making that an offence which was not so at the time of its
commission, or increasing the punishment annexed to it. The course of
legislation in this country amply demonstrates the wisdom, and even
necessity, of extending the same prohibition to civil cases. There is no
particular or partial inconvenience, which could outweigh the general
benefits of a provision that no law, public or private, should operate
retrospectively upon past acts; that the judgment of the tribunals upon every
case should be according to the law as it was at the time of the transaction,
which the parties were bound to know, and in accordance with which they
are to be presumed to have acted.
As well in the domain of public as of private law, the great fundamental
principle for judge and counsellor ought to be, that authority is sacred.
There is no inconvenience so great, no private hardship so imperative, as to
justify the application of a different rule to the resolution of a case, than the
existing state of the law will warrant. "There is not a line from his pen,"
says Mr. Binney of Chief Justice Tilghman, "that trifles with the sacred
deposit in his hands by claiming to fashion it according to a private opinion

of what it ought to be. Judicial legislation he abhorred, I should rather say,
dreaded, as an implication of his conscience. His first inquiry in every case
was of the oracles of the law for their response; and when he obtained it,
notwithstanding his clear perception of the justice of the cause, and his
intense desire to reach it, if it was not the justice of the law, he dared not to
administer it. He acted upon the sentiment of Lord Bacon, that it is the
foulest injustice to remove landmarks, and that to corrupt the law is to
poison the very fountains of justice. With a consciousness that to the errors
of the science there are some limits, but none to the evils of a licentious
invasion of it, he left it to our annual legislature to correct such defects in
the system as time either created or exposed; and better foundation in the
law can no man lay." It is not to be denied that there is some difficulty in
stating with accuracy the limits of the rule stare decisis. One, or even more
than one, recent precedent, especially when it relates to the application
rather than to the establishment of a rule, is not of so binding a character
that it must be followed, even though contrary to principles adjudged in
older cases: but it is just as clear that when a decision has been long
acquiesced in, when it has been applied in numerous cases, and become a
landmark in the branch of the science to which it relates, when men have
dealt and made contracts on the faith of it, whether it relates to the right of
property itself, or to the evidence by which that right may be substantiated,
though it may appear to us "flatly absurd and unjust," to overrule such a
decision is an act of positive injustice, as well as a violation of law, and an
usurpation by one branch of the government upon the powers of another. An
example will illustrate this position. In the case of Walton v. Shelley (1
Term Rep. 296), in 1786, the King's Bench, Lord Mansfield, Chief Justice,
decided that a person is not a competent witness to impeach a security
which he has given, though he is not interested in the event of the suit, on
the trial of which he is offered. In Jordaine v. Lashbrooke (7 Term Rep.
601), the same court, in 1798, under the presidency of Lord Kenyon, rightly
overruled that decision. Now it so happens that Walton v. Shelley was
recognized as authority and followed in Pennsylvania, in 1792, in Stille v.
Lynch (2 Dall. 194), before it had been overruled in England: and though
limited as it was understood to be in Bent v. Baker (3 Term Rep. 34), to
negotiable paper (Pleasants v. Pemberton, 2 Dall. 196), it has never been
varied from since that time, though it has frequently been admitted that
Walton v. Shelley was properly overruled. It ought not now to be overruled

in Pennsylvania. "After the decisions cited," says Judge Rogers, in Gest v.
Espy (2 Watts, 268), "this cannot be considered an open question, nor do we
think ourselves at liberty now to examine the foundations of the rule."
Unfortunately our Supreme Court have not always put this sound and wise
limitation upon their own power. In the case of Post v. Avery (5 W. & S.
509), they declared in regard to a rule of more than thirty years' standing,
and confirmed by numerous cases, that they had "vainly hoped that the
inconvenience of the rule would have attracted the attention of the
legislature, who alone are competent to abolish it;" but as nothing was to be
expected from that quarter, "they were driven by stress of necessity" to
overrule a case expressly decided on the authority of the rule. (Hart v.
Heilner, 3 Rawle, 407.) And two years afterwards, after having made the
remarkable declaration that the legislature alone was competent to abolish
the rule, they nevertheless pronounced it "exploded altogether."
(McClelland v. Mahon, 1 Barr, 364.)
Lord Bacon says of retrospective laws: "Cujus generis leges raro et magna
cum cautione sunt adhibenda: neque enim placet Janus in legibus." Without
any saving clause may the epithet and denunciation be applied to judicial
laws. They are always retrospective, but worse on many accounts than
retrospective statutes. Against the latter we have at least the security of the
constitutional provision that prohibits the passage of any law, which impairs
the obligation of a contract, executory or executed; and it has been well
held that this prohibition applies to such an alteration of the law of evidence
in force at the time the contract was made, as would practically destroy the
contract itself by destroying the only means of enforcing it. There is no such
constitutional provision against judicial legislation. It sweeps away a man's
rights, vested, as he had reason to think, upon the firmest foundation,
without affording him the shadow of redress. Nor could there, in the nature
of things, be any such devised. When a court overrules a previous decision,
it does not simply repeal it; it must pronounce it never to have been law.
There is no instance on record, in which a court has instituted the inquiry,
upon what grounds the suitor had relied in investing his property or making
his contract, and relieved him from the disastrous consequences, not of his,
but of their mistake, or the mistake of their predecessors. The man who, on
the faith of Steele v. The Phœnix Ins. Co. (3 Binn. 306), decided in 1811,
and treated as so well settled in itself and all its logical consequences, that

in 1832 (Hart v. Heilner, 3 Rawle, 407) the Supreme Court, declined to hear
the counsel, who relied on its authority, invested his money in the purchase
of a claim which could be proved only by the testimony of the assignor,
found himself stripped of his property by a decision in 1845, the results of
which were broader than even the legislature itself would have been
competent to effect, or indeed the people themselves in their sovereign
capacity, at least so long as the Constitution of the United States continues
to be "the supreme law of the land, anything in the constitution and laws of
any State to the contrary notwithstanding."
But judicial is much worse than legislative retrospection in another aspect.
The act of Assembly, if carefully worded, is at least a certain rule. The act
of the judicial legislature is invariably the precursor of uncertainty and
confusion. Apply to it a test, which may be set down as unerring, never
failing soon to discover the true metal from the base counterfeit: its effect
upon litigation. A decision in conformity to established precedents is the
mother of repose on that subject; but one that departs from them throws the
professional mind at sea without chart or compass. The cautious counsellor
will be compelled to say to his client that he cannot advise. One cause is the
general uncertainty to which it leads. Men will persuade themselves easily,
when it is their interest to be persuaded, that if one well-established rule has
been overthrown, another, believed to be quite as wrong and perhaps not so
well fortified by time and subsequent cases, may share the same fate. Shall
counsel risk advising his client not to prosecute his claim or defence, when
another bolder than he, may moot the point and conduct another cause
resting upon the same question to a successful termination? The very
foundations of confidence and security are shaken. The law becomes a
lottery, in which every man feels disposed to try his chance. Another cause
of this uncertainty is more particular. A court scarcely ever makes an open
and direct overthrow of a deeply founded rule at one stroke. It requires
repeated blows. It can be seen to be in danger, but not whether it is finally
to fall. Hence it frequently happens that there is a sliding scale of cases; and
when the final overthrow comes, it is very difficult to determine, whether
any and which steps of the process remain. Shortly after the decision in Post
v. Avery, the case of Fraley v. Bispham was tried in one of the inferior
courts; in which the Judge, thinking that Post v. Avery, however the
intention may have been disclaimed, did in fact overrule Steele v. The

Phœnix, rejected as incompetent one of the nominal plaintiffs, a retiring
partner, who upon dissolution had sold out for a price bona fide paid, all his
interest in the firm to his copartners, who continued the business. A motion
was made for a new trial, and before the rule came on to be heard, Patterson
v. Reed (7 W. & S. 144) had appeared, and the court, on the authority of that
case, which decided that an assignment must be colorable and made for the
purpose of rendering the assignor a witness in order to exclude him, ordered
a new trial. Before the case was again called for trial, the first volume of
Barr's Reports had been published, in which the Supreme Court said: "The
time is come, when the doctrine of Steele v. The Phœnix Ins. Co. must be
exploded altogether. The essential interests of justice demand that the
decision in that case be no longer a precedent for anything whatever."
(McClelland v. Mahon, 1 Barr, 364.) And the Judge before whom the cause
was then tried had no other course left, but again to reject the witness, the
very same thing on account of which a new trial had been ordered.
The case of Post v. Avery is a most striking illustration of judicial legislation
and its mischievous results. It is usual to hear it excused on account of the
unequal and unjust operation of the rule reversed, by which one party was
heard but not the other, and the temptation it held out for the manufacture of
false claims, to be supported by perjury. But it is to lose sight of the real
question involved to raise such an issue: for, like the execution of a
notorious culprit by the expeditious process of a mob and a lamp-post,
instead of the formalities and delays of law and courts, it may be a very
good thing for the community to have rid itself of the offender, but the way
by which it was accomplished was a heavy blow at the very root of the tree
of public and private security.
There is another decision of the Supreme Court of Pennsylvania, not so
bold and avowed an act of judicial legislation as that just mentioned, but not
less transparent, which may be cited as strongly illustrating the same
consequences of uncertainty and litigation flowing from a disregard of the
principle adverted to. From the year 1794, there had existed in Pennsylvania
an act of Assembly limiting the lien of the debts of a decedent on his real
estate, at first to seven, afterwards to five years. No question ever arose
before the court in regard to it. Lien was considered to mean lien and not
obligation: lands to be subject to execution for all debts of the owner
prosecuted to judgment, and of course not barred by the Statute of

Limitations; and the limitation of the lien merely intended for the protection
of purchasers from the heirs or devisees or their lien creditors. Such was
recognized to be the true meaning of the law in 1795 (Hannum v. Spear, 1
Yeats, 566), and so distinctly ruled in 1830 (Bruch v. Lantz, 2 Rawle, 392);
yet on grounds palpably only relevant to what, in the opinion of the court,
the law ought to be, it was held in 1832, in Kerper v. Hoch (1 Watts, 9), that
the period named was a limitation not of the lien but of the debt itself, and
available in favor of heirs and devisees, volunteers under the debtor and
succeeding to his rights cum onere. As we have seen, but two cases are to
be produced of litigation arising out of this law carried to the highest
tribunal from 1794 to 1832. More than twenty cases are to be found
reported since, in which that court has been called upon to draw distinctions
and settle the precise extent of their own law. Thus a little complicated
system has grown up on this construction of the act. A volume, indeed,
might be written on Kerper v. Hoch and its satellites, when if the act had
been let alone to speak for itself, and the prior decision followed, it would
have been a simple and intelligible rule of action, until the legislature saw
fit to alter it. It seems that this consideration pressed upon at least one of the
judges, who joined in that decision; for in a subsequent case, when Kerper
v. Hoch was cited, that Judge, with characteristic candor, interrupted the
counsel with the remark: "We will abide by the rule, but it was erroneously
decided." (Hocker's Appeal, 4 Barr, 498.)
This, then, is the legitimate province of Jurisprudence, Stare super antiquas
vias, to maintain the ancient landmarks, to respect authority, to guard the
integrity of the law as a science, that it may be a certain rule of decision,
and promote that security of life, liberty, and property, which, as we have
seen, is the great end of human society and government. Thus industry will
receive its best encouragement; thus enterprise will be most surely
stimulated; thus constant additions to capital by savings will be promoted;
thus the living will be content in the feeling that their earnings are safely
invested; and the dying be consoled with the reflection that the widow and
orphan are left under the care and protection of a government, which
administers impartial justice according to established laws.
With jurisprudence, lawyers have the most, nay all, to do. The opinion of
the Bar will make itself heard and respected on the Bench. With sound
views, their influence for good in this respect may well be said to be

incalculable. It is indeed the noblest faculty of the profession to counsel the
ignorant, defend the weak and oppressed, and to stand forth on all occasions
as the bulwark of private rights against the assaults of power, even under
the guise of law; but it has still other functions. It is its office to diffuse
sound principles among the people, that they may intelligently exercise the
controlling power placed in their hands, in the choice of their
representatives in the Legislature and of Judges, in deciding, as they are
often called upon to do, upon the most important changes in the
Constitution, and above all in the formation of that public opinion which
may be said in these times, almost without a figure, to be ultimate
sovereign. Whether they seek them or are sought, lawyers, in point of fact,
always have filled, in much the larger proportion over every other
profession, the most important public posts. They will continue to do so, at
least so long as the profession holds the high and well-merited place it now
does in the public confidence.

PROFESSIONAL ETHICS.
There is, perhaps, no profession, after that of the sacred ministry, in which a
high-toned morality is more imperatively necessary than that of the law.
There is certainly, without any exception, no profession in which so many
temptations beset the path to swerve from the line of strict integrity; in
which so many delicate and difficult questions of duty are continually
arising. There are pitfalls and man-traps at every step, and the mere youth,
at the very outset of his career, needs often the prudence and self-denial, as
well as the moral courage, which belong commonly to riper years. High
moral principle is his only safe guide; the only torch to light his way amidst
darkness and obstruction. It is like the spear of the guardian angel of
Paradise:

No falsehood can endure
Touch of celestial temper, but returns
Of force to its own likeness.

The object of this Essay is to arrive at some accurate and intelligible rules
by which to guide and govern the conduct of professional life. It would not
be a difficult task to declaim in general propositions—to erect a perfect
standard and leave the practitioner to make his own application to particular
cases. It is a difficult task, however, as it always is in practice, to determine
the precise extent of a principle, so as to know when it is encountered and
overcome by another—to weigh the respective force of duties which appear
to come in conflict. In all the walks of life men have frequently to do this:
in none so often as at the Bar.
The responsibilities, legal and moral, of the lawyer, arise from his relations
to the court, to his professional brethren and to his client. It is in this order
that it is proposed to consider and discuss the various topics which grow out
of this subject.
The oath directed by law in this State to be administered upon the
admission of an attorney to the bar, "to behave himself in the office of

attorney according to the best of his learning and ability, and with all good
fidelity, as well to the court as to the client; that he will use no falsehood,
nor delay any man's cause for lucre or malice," presents a comprehensive
summary of his duties as a practitioner.[1]
Fidelity to the court, fidelity to the client, fidelity to the claims of truth and
honor: these are the matters comprised in the oath of office.
It is an oath of office, and the practitioner, the incumbent of an office—an
office in the administration of justice[2]—held by authority from those who
represent in her tribunals the majesty of the commonwealth, a majesty truly
more august than that of kings or emperors. It is an office, too, clothed with
many privileges—privileges, some of which are conceded to no other class
or profession.[3] It is, therefore, that the legislature have seen fit to require
that there should be added to the solemnity of the responsibility, which
every man virtually incurs when he enters upon the practice of his
profession, the higher and more impressive sanction of an appeal to the
Searcher of all Hearts.
Fidelity to the court, requires outward respect in words and actions. The
oath as it has been said, undoubtedly looks to nothing like allegiance to the
person of the judge; unless in those cases where his person is so inseparable
from his office, that an insult to the one, is an indignity to the other. In
matters collateral to official duty, the judge is on a level with the members
of the bar, as he is with his fellow-citizens; his title to distinction and
respect resting on no other foundation, than his virtues and qualities as a
man.[4] There are occasions, no doubt, when duty to the interests confided
to the charge of the advocate demands firm and decided opposition to the
views expressed or the course pursued by the court, nay, even manly and
open remonstrance; but this duty may be faithfully performed, and yet that
outward respect be preserved, which is here inculcated. Counsel should
ever remember how necessary it is for the dignified and honorable
administration of justice, upon which the dignity and honor of their
profession entirely depend, that the courts and the members of the courts,
should be regarded with respect by the suitors and people; that on all
occasions of difficulty or danger to that department of government, they
should have the good opinion and confidence of the public on their side.
Good men of all parties prefer to live in a country, in which justice

according to law is impartially administered. Counsel should bear in mind
also the wearisomeness of a judge's office; how much he sees and hears in
the course of a long session, to try his temper and patience. Lord Campbell
has remarked that it is rather difficult for a judge altogether to escape the
imputation of discourtesy if he properly values the public time; for one of
his duties is to "render it disagreeable to counsel to talk nonsense."
Respectful submission, nay, most frequently, even cheerful acquiescence in
a decision, when, as is most generally the case, no good result to his cause
can grow from any other course, is the part of true wisdom as well as
civility. An exception may be noted to the opinion of the Bench, as easily in
an agreeable and polite, as in a contemptuous and insulting manner. The
excitement of the trial of a cause caused by the conflict of testimony,
making often the probabilities of success to vibrate backwards and forwards
with as much apparent uncertainty as the chances in a game of hazard, is no
doubt often the reason and apology for apparent disrespect in manner and
language; but let it be observed, that petulance in conflicts with the Bench,
which renders the trial of causes disagreeable to all concerned, has most
generally an injurious effect upon the interests of clients.
Indeed, it is highly important that the temper of an advocate should be
always equal. He should most carefully aim to repress everything like
excitability or irritability. When passion is allowed to prevail, the judgment
is dethroned. Words are spoken, or things done, which the parties
afterwards wish could be unsaid or undone. Equanimity and self-possession
are qualities of unspeakable value. An anecdote may serve to illustrate this
remark. There was a gentleman of the Bar of Philadelphia, many years ago,
who possessed these qualities in a very remarkable degree. He allowed
nothing that occurred in a cause to disturb or surprise him. On an occasion
in one of the neighboring counties, the circuit of which it was his custom to
ride, he was trying a cause on a bond, when a witness for defendant was
introduced, who testified that the defendant had taken the amount of the
bond, which was quite a large sum, from his residence to that of the obligee,
a distance of several miles, and paid him in silver in his presence. The
evidence was totally unexpected; his clients were orphan children; all their
fortune was staked on this case. The witness had not yet committed himself
as to how the money was carried. Without any discomposure—without
lifting his eyes or pen from paper—he made on the margin of his notes of

trial a calculation of what that amount in silver would weigh; and when it
came his turn to cross-examine, calmly proceeded to make the witness
repeat his testimony step by step,—when, where, how, and how far the
money was carried—and then asked him if he knew how much that sum of
money weighed, and upon naming the amount, so confounded the witness,
party, and counsel engaged for the defendant, that the defence was at once
abandoned, and a verdict for the plaintiff rendered on the spot.[5]
Another plain duty of counsel is to present every thing in the cause to the
court openly in the course of the public discharge of its duties. It is not
often, indeed, that gentlemen of the Bar so far forget themselves as to
attempt to exert privately an influence upon the judge, to seek private
interviews, or take occasional opportunities of accidental or social meetings
to make ex parte statements, or to endeavor to impress their views. They
know that such conduct is wrong in itself, and has a tendency to impair
confidence in the administration of justice, which ought not only to be pure
but unsuspected. A judge will do right to avoid social intercourse with those
who obtrude such unwelcome matters upon his moments of relaxation.
There is one thing, however, of which gentlemen of the Bar are not
sufficiently careful,—to discourage and prohibit their clients from pursuing
a similar course. The position of the judge in relation to a cause under such
circumstances is very embarrassing, especially, as is often the case, if he
hears a good deal about the matter before he discovers the nature of the
business and object of the call upon him. Often the main purpose of such
visits is not so much to plead the cause, as to show the judge who the party
is—an acquaintance, perhaps—and thus, at least, to interest his feelings.
Counsel should set their faces against all undue influences of the sort; they
are unfaithful to the court, if they allow any improper means of the kind to
be resorted to. Judicem nec de obtinendo jure orari oportet nec de injuria
exorari. It may be in place to remark here that the counsel in a cause ought
to avoid all unnecessary communication with the jurors before or during
any trial in which he may be concerned. He should enforce the same duty
upon his client. Any attempt by an attorney to influence a juror by
arguments or otherwise, will, of course, if discovered and brought to the
notice of the court, lead to expulsion or suspension from the Bar, according
to the degree and quality of the offence. The freedom of the jury-box from
extraneous influences is a matter of such vital moment in our system that

the courts are bound to watch over it with jealous eyes. "It would be an
injury to the administration of justice," says C. J. Tilghman, "not to declare
that it is gross misbehavior for any person to speak with a juror, or for a
juror to permit any person to speak with him, respecting the cause he is
trying, at any time after he is summoned and before the verdict is
delivered." "The words thus uttered," says Judge Hare, "by one of the best
men and purest magistrates that ever filled the judicial office, must find an
echo in every bosom. The principle which dictated them does not require
the aid of argument or elucidation; it is native to the conscience, and will be
apparent to all who consult the monitor in their own breast. The wrong is
aggravated when the taint of personal interest mingles with it, as when
committed by a party to the cause, but appears in the worst form when it is
the act of attorneys or counsel, who are the sworn officers of the court,
whose duty it is to act as guardians of the fountains of justice, and who are
false to their charge when they defile or taint those waters, which they are
pledged to keep pure and unpolluted. Such conduct in counsel is a gross
breach of trust, for which a removal from the trust is but an inadequate
punishment."[6]
There is another duty to the court, and that is, to support and maintain it in
its proper province wherever it comes in conflict with the co-ordinate
tribunal—the jury. The limits of these two provinces are settled with great
accuracy; and even if a judge makes a mistake, the only proper place to
correct his error is in the superior tribunal,—the Court of Errors. It has been
held in a multitude of cases, that verdicts against the charge of the court in
point of law, will be set aside without limitation as to the number of times,
and that without regard to the question whether the direction of the court in
point of law was right or wrong. There is a technical reason, which makes
this course in all cases imperative. The losing party, if the jury were allowed
to decide the law for him, would be deprived of his exception, and of his
unquestionable right to have the law of his case pronounced upon by the
Supreme Court. Ad questiones juris respondeant judices,—ad questiones
facti juratores. A disregard by the jury of the law, as laid down by the judge,
is always therefore followed by additional and unnecessary delay and
expense, and it is never an advantage to a party in the long run to obtain a
verdict in opposition to the direction of the court.[7] It is best for counsel to
say in such cases, where nothing is left by the charge to the jury, that they

do not ask for a verdict. It has a fair, candid, and manly aspect towards
court, jury, opposite party, and even client. Instances of counsel urging or
endeavoring to persuade a jury to disregard the charge may sometimes
occur, but they are exceedingly rare when there is good feeling between the
Bench and the Bar, and when the members of the profession have just and
enlightened views of their duty as well as interest.
It need hardly be added that a practitioner ought to be particularly cautious,
in all his dealings with the court, to use no deceit, imposition, or evasion—
to make no statements of facts which he does not know or believe to be true
—to distinguish carefully what lies in his own knowledge from what he has
merely derived from his instructions—to present no paper-books
intentionally garbled. "Sir Matthew Hale abhorred," says his biographer,
"those too common faults of misrepresenting evidence, quoting precedents
or books falsely, or asserting anything confidently by which ignorant juries
and weak judges are too often wrought upon."[8] One such false step in a
young lawyer will do him an injury in the opinion of the Bench and of his
professional brethren, which it will take years to redeem, if indeed it ever
can be entirely redeemed.
A very great part of a man's comfort, as well as of his success at the Bar,
depends upon his relations with his professional brethren. With them he is
in daily necessary intercourse, and he must have their respect and
confidence, if he wishes to sail along in smooth waters. He cannot be too
particular in keeping faithfully and liberally every promise or engagement
he may make to them. One whose perfect truthfulness is even suspected by
his brethren at the Bar has always an uneasy time of it. He will be
constantly mortified by observing precautions taken with him which are not
used with others. It is not only morally wrong but dangerous to mislead an
opponent, or put him on a wrong scent in regard to the case. It would be
going too far to say that it is ever advisable to expose the weakness of a
client's cause to an adversary, who may be unscrupulous in taking
advantage of it; but it may be safely said, that he who sits down deliberately
to plot a surprise upon his opponent, and which he knows can succeed only
by its being a surprise, deserves to fall, and in all probability will fall, into
the trap which his own hands have laid. "Whoso diggeth a pit," says the
wise man, "shall fall therein, and he that rolleth a stone, it will return upon
him." If he should succeed, he will have gained with his success not the

admiration and esteem, but the distrust and dislike of one of his associates
as long as he lives. He should never unnecessarily have a personal difficulty
with a professional brother. He should neither give nor provoke insult.
Nowhere more than at the Bar is that advice valuable:

"Beware
Of entrance to a quarrel; but being in,
Bear it that the opposed may beware of thee."

There is one more caution to be given under this head. Let him shun most
carefully the reputation of a sharp practitioner. Let him be liberal to the
slips and oversights of his opponent wherever he can do so, and in plain
cases not shelter himself behind the instructions of his client. The client has
no right to require him to be illiberal—and he should throw up his brief
sooner than do what revolts against his own sense of what is demanded by
honor and propriety.
Nothing is more certain than that the practitioner will find, in the long run,
the good opinion of his professional brethren of more importance than that
of what is commonly called the public. The foundations of the reputation of
every truly great lawyer will be discovered to have been laid here. Sooner
or later, the real public—the business men of the community, who have
important lawsuits, and are valuable clients—indorse the estimate of a man
entertained by his associates of the Bar, unless indeed there be some glaring
defect of popular qualities. The community know that they are better
qualified to judge of legal attainments, that they have the best opportunity
of judging, and that they are slow in forming a judgment. The good opinion
and confidence of the members of the same profession, like the King's name
on the field of battle, is "a tower of strength;" it is the title of legitimacy.
The ambition to please the people, to captivate jurors, spectators, and
loungers about the court room, may mislead a young man into pertness,
flippancy, and impudence, things which often pass current for eloquence
and ability with the masses; but the ambition to please the Bar can never
mislead him. Their good graces are only to be gained by real learning, by
the strictest integrity and honor, by a courteous demeanor, and by attention,
accuracy and punctuality in the transaction of business.

The topic of fidelity to the client involves the most difficult questions in the
consideration of the duty of a lawyer.
He is legally responsible to his client only for the want of ordinary care and
ordinary skill. That constitutes gross negligence. It is extremely difficult to
fix upon any rule which shall define what is negligence in a given case. The
habits and practice of men are widely different in this regard. It has been
laid down that if the ordinary and average degree of diligence and skill
could be determined, it would furnish the true rule.[9] Though such be the
extent of legal liability, that of moral responsibility is wider. Entire devotion
to the interest of the client, warm zeal in the maintenance and defence of his
rights, and the exertion of his utmost learning and ability,—these are the
higher points, which can only satisfy the truly conscientious practitioner.
But what are the limits of his duty when the legal demands or interests of
his client conflict with his own sense of what is just and right? This is a
problem by no means of easy solution.
That lawyers are as often the ministers of injustice as of justice is the
common accusation in the mouth of gainsayers against the profession. It is
said there must be a right and a wrong side to every lawsuit. In the majority
of cases it must be apparent to the advocate, on which side is the justice of
the cause; yet he will maintain, and often with the appearance of warmth
and earnestness, that side which he must know to be unjust, and the success
of which will be a wrong to the opposite party. Is he not then a participator
in the injustice?
It may be answered in general:—
Every case is to be decided by the tribunal before which it is brought for
adjudication upon the evidence, and upon the principles of law applicable to
the facts as they appear upon the evidence. No court or jury are invested
with any arbitrary discretion to determine a cause according to their mere
notions of justice. Such a discretion vested in any body of men would
constitute the most appalling of despotisms. Law, and justice according to
law—this is the only secure principle upon which the controversies of men
can be decided. It is better on the whole that a few particular cases of
hardship and injustice, arising from defect of evidence or the unbending
character of some strict rule of law, should be endured, than that general

insecurity should pervade the community from the arbitrary discretion of
the judge. It is this which has blighted the countries of the East as much as
cruel laws or despotic executives. Thus the legislature has seen fit in certain
cases to assign a limit to the period within which actions shall be brought;
in order to urge men to vigilance, and to prevent stale claims from being
suddenly revived against men whose vouchers are destroyed or whose
witnesses are dead. It is true, in foro conscientiæ, a defendant, who knows
that he honestly owes the debt sued for and that the delay has been caused
by indulgence or confidence on the part of his creditor, ought not to plead
the statute. But if he does plead it, the judgment of the court must be in his
favor.
Now the lawyer is not merely the agent of the party; he is an officer of the
court. The party has a right to have his case decided upon the law and the
evidence, and to have every view presented to the minds of his judges,
which can legitimately bear upon that question. This is the office which the
advocate performs. He is not morally responsible for the act of the party in
maintaining an unjust cause, nor for the error of the court, if they fall into
error, in deciding it in his favor. The court or jury ought certainly to hear
and weigh both sides; and the office of the counsel is to assist them by
doing that, which the client in person, from want of learning, experience,
and address, is unable to do in a proper manner. The lawyer, who refuses his
professional assistance because in his judgment the case is unjust and
indefensible, usurps the functions of both judge and jury.
As an answer to any sweeping objection made to the profession in general,
the view thus presented may be quite satisfactory. It by no means follows,
however, as a principle of private action for the advocate, that all causes are
to be taken by him indiscriminately and conducted with a view to one single
end, success. It is much to be feared, however, that the prevailing tone of
professional ethics leads practically to this result. He has an undoubted right
to refuse a retainer, and decline to be concerned in any cause, at his
discretion. It is a discretion to be wisely and justly exercised. When he has
once embarked in a case, he cannot retire from it without the consent of his
client or the approbation of the court.[10] To come before the court with a
revelation of facts, damning to his client's case, as a ground for retiring
from it, would be a plain breach of the confidence reposed in him, and the
law would seal his lips.[11] How then is he to acquit himself? Lord

Brougham, in his justly celebrated defence of the Queen, went to very
extravagant lengths upon this subject; no doubt he was led by the
excitement of so great an occasion to say what cool reflection and sober
reason certainly never can approve. "An advocate," said he, "in the
discharge of his duty knows but one person in all the world, and that person
is his client. To save that client by all means and expedients, and at all
hazards and costs to other persons, and among them to himself, is his first
and only duty; and in performing this duty he must not regard the alarm, the
torments, the destruction he may bring upon others. Separating the duty of a
patriot from that of an advocate, he must go on reckless of consequences;
though it should be his unhappy lot to involve his country in confusion."
On the other hand, and as illustrative of the practical difficulty, which this
question presented to a man, with as nice a perception of moral duty as
perhaps ever lived, it is said by Bishop Burnet, of Sir Matthew Hale: "If he
saw a cause was unjust, he for a great while would not meddle further in it,
but to give his advice that it was so; if the parties after that would go on,
they were to seek another counsellor, for he would assist none in acts of
injustice; if he found the cause doubtful or weak in point of law, he always
advised his clients to agree their business. Yet afterwards he abated much of
the scrupulosity he had about causes that appeared at first unjust, upon this
occasion; there were two causes brought him, which by the ignorance of the
party or their attorney, were so ill-represented to him that they seemed to be
very bad; but he inquiring more narrowly into them, found they were really
very good and just; so after this he slackened much of his former strictness
of refusing to meddle in causes upon the ill circumstances that appeared in
them at first."[12]
It may be delicate and dangerous ground to tread upon to undertake to
descend to particulars upon such a subject. Every case must, to a great
degree, depend upon its own circumstances, known, peradventure, to the
counsel alone; and it will often be hazardous to condemn either client or
counsel upon what appears only. A hard plea—a sharp point—may subserve
what is at bottom an honest claim, or just defence; though the evidence may
not be within the power of the parties, which would make it manifest.
There are a few propositions, however, which appear to me to be sound in
themselves, and calculated to solve this problem practically in the majority

of cases: at least to assist the mind in coming to a safe conclusion in foro
conscientiæ, in the discharge of professional duty.
There is a distinction to be made between the case of prosecution and
defence for crimes; between appearing for a plaintiff in pursuit of an unjust
claim, and for a defendant in resisting what appears to be a just one.
Every man, accused of an offence, has a constitutional right to a trial
according to law: even if guilty, he ought not to be convicted and undergo
punishment unless upon legal evidence; and with all the forms which have
been devised for the security of life and liberty. These are the panoply of
innocence when unjustly arraigned; and guilt cannot be deprived of it,
without removing it from innocence. He is entitled, therefore, to the benefit
of counsel to conduct his defence, to cross-examine the witnesses for the
State, to scan, with legal knowledge, the forms of the proceeding against
him, to present his defence in an intelligible shape, to suggest all those
reasonable doubts which may arise from the evidence as to his guilt, and to
see that if he is convicted, it is according to law. A circumstance the
celebrated Lord Shaftesbury once so finely turned to his purpose must often
happen to a prisoner at his trial. Attempting to speak on the bill for granting
counsel to prisoners in cases of high treason, he was confounded, and for
some time could not proceed, but recovering himself, he said, "What now
happened to him would serve to fortify the arguments for the bill. If he
innocent and pleading for others was daunted at the augustness of such an
assembly, what must a man be who should plead before them for his life?"
[13] The courts are in the habit of assigning counsel to prisoners who are
destitute, and who request it; and counsel thus named by the court cannot
decline the office.[14] It is not to be termed screening the guilty from
punishment, for the advocate to exert all his ability, learning, and ingenuity,
in such a defence, even if he should be perfectly assured in his own mind of
the actual guilt of the prisoner.[15]
It is a different thing to engage as private counsel in a prosecution against a
man whom he knows or believes to be innocent. Public prosecutions are
carried on by a public officer, the Attorney-General, or those who act in his
place; and it ought to be a clear case to induce gentlemen to engage on
behalf of private interests or feelings, in such a prosecution. It ought never
to be done against the counsel's own opinion of its merits. There is no call

of professional duty to balance the scale, as there is in the case of a
defendant. It is in every case but an act of courtesy in the Attorney-General
to allow private counsel to take part for the Commonwealth; such a favor
ought not to be asked, unless in a cause believed to be manifestly just. The
same remarks apply to mere assistance in preparing such a cause for trial
out of court, by getting ready and arranging the evidence and other matters
connected with it: as the Commonwealth has its own officers, it may well,
in general, be left to them. There is no obligation on an attorney to minister
to the bad passions of his client; it is but rarely that a criminal prosecution is
pursued for a valuable private end, the restoration of goods, the
maintenance of the good name of the prosecutor, or closing the mouth of a
man who has perjured himself in a court of justice. The office of Attorney-
General is a public trust, which involves in the discharge of it, the exertion
of an almost boundless discretion, by an officer who stands as impartial as a
judge. "The professional assistant, with the regular deputy, exercises not his
own discretion, but that of the Attorney-General, whose locum tenens at
sufferance, he is; and he consequently does so under the obligation of the
official oath."[16] On the other hand, if it were considered that a lawyer was
bound or even had a right to refuse to undertake the defence of a man
because he thought him guilty, if the rule were universally adopted, the
effect would be to deprive a defendant, in such cases, of the benefit of
counsel altogether.
The same course of remark applies to civil causes. A defendant has a legal
right to require that the plaintiffs demand against him should be proved and
proceeded with according to law. If it were thrown upon the parties
themselves, there would he a very great inequality between them, according
to their intelligence, education, and experience, respectively. Indeed, it is
one of the most striking advantages of having a learned profession, who
engage as a business in representing parties in courts of justice, that men are
thus brought nearer to a condition of equality, that causes are tried and
decided upon their merits, and do not depend upon the personal characters
and qualifications of the immediate parties.[17] Thus, too, if a suit be
instituted against a man to recover damages for a tort, the defendant has a
right to all the ingenuity and eloquence he can command in his defence, that
even if he has committed a wrong, the amount of the damages may not
exceed what the plaintiff is justly entitled to recover. But the claim of a

plaintiff stands upon a somewhat different footing. Counsel have an
undoubted right, and are in duty bound, to refuse to be concerned for a
plaintiff in the legal pursuit of a demand, which offends his sense of what is
just and right. The courts are open to the party in person to prosecute his
own claim, and plead his own cause; and although he ought to examine and
be well-satisfied before he refuses to a suitor the benefit of his professional
skill and learning, yet it would be on his part an immoral act to afford that
assistance, when his conscience told him that the client was aiming to
perpetrate a wrong through the means of some advantage the law may have
afforded him. "It is a popular but gross mistake," says the late Chief Justice
Gibson, "to suppose that a lawyer owes no fidelity to any one except his
client, and that the latter is the keeper of his professional conscience. He is
expressly bound by his official oath to behave himself, in his office of
attorney, with all fidelity to the court as well as the client; and he violates it
when he consciously presses for an unjust judgment, much more so when
he presses for the conviction of an innocent man.... The high and honorable
office of a counsel would be degraded to that of a mercenary, were he
compelled to do the biddings of his client against the dictates of his
conscience."[18] The sentiment has been expressed in flowing numbers by
our great commentator, Sir William Blackstone:—

"To Virtue and her friends a friend,
Still may my voice the weak defend:
Ne'er may my prostituted tongue
Protect the oppressor in his wrong;
Nor wrest the spirit of the laws,
To sanctify the villain's cause."

Another proposition which may be advanced upon this subject is, that there
may and ought to be a difference made in the mode of conducting a defence
against what is believed to be a righteous, and what is believed to be an
unrighteous claim. A defence in the former case should be conducted upon
the most liberal principles. When he is contending against the claim of one,
who is seeking, as he believes, through the forms of law, to do his client an
injury, the advocate may justifiably avail himself of every honorable ground
to defeat him. He may begin at once by declaring to his opponent or his
professional adviser, that he holds him at arm's length, and he may keep

him so during the whole contest. He may fall back upon the instructions of
his client, and refuse to yield any legal vantage ground, which may have
been gained through the ignorance or inadvertence of his opponent.
Counsel, however, may and even ought to refuse to act under instructions
from a client to defeat what he believes to be an honest and just claim, by
insisting upon the slips of the opposite party, by sharp practice, or special
pleading—in short, by any other means than a fair trial on the merits in
open court. There is no professional duty, no virtual engagement with the
client, which compels an advocate to resort to such measures, to secure
success in any cause, just or unjust; and when so instructed, if he believes it
to be intended to gain an unrighteous object, he ought to throw up the
cause, and retire from all connection with it, rather than thus he a
participator in other men's sins.
Moreover, no counsel can with propriety and a good conscience express to
court or jury his belief in the justice of his client's cause, contrary to the
fact. Indeed, the occasions are very rare in which he ought to throw the
weight of his own private opinion into the scales in favor of the side he has
espoused. If that opinion has been formed on a statement of facts not in
evidence, it ought not to be heard,—it would be illegal and improper in the
tribunal to allow any force whatever to it; if on the evidence only, it is
enough to show from that the legal and moral grounds on which such
opinion rests. Some very sound and judicious observations have been made
by Mr. Whewell in a recent work on the Elements of Moral and Political
Science, which deserve to be quoted at length;—
"Some moralists," says he, "have ranked with the cases in which convention
supersedes the general rule of truth, an advocate asserting the justice, or his
belief in the justice, of his client's cause. Those who contend for such
indulgence argue that the profession is an instrument for the administration
of justice: he is to do all he can for his client: the application of laws is a
matter of great complexity and difficulty: that the right administration of
them in doubtful cases is best provided for if the arguments on each side are
urged with the utmost force. The advocate is not the judge.
"This may be all well, if the advocate let it be so understood. But if in
pleading he assert his belief that his cause is just when he believes it unjust,

he offends against truth, as any other man would do who in like manner
made a like assertion.
"Every man, when he advocates a case in which morality is concerned, has
an influence upon his hearers, which arises from the belief that he shares
the moral sentiments of all mankind. This influence of his supposed
morality is one of his possessions, which, like all his possessions, he is
bound to use for moral ends. If he mix up his character as an advocate with
his character as a moral agent, using his moral influence for the advocate's
purpose, he acts immorally. He makes the moral rule subordinate to the
professional rule. He sells to his client not only his skill and learning, but
himself. He makes it the supreme object of his life to be not a good man,
but a successful lawyer.
"There belong to him, moreover, moral ends which regard his profession;
namely, to make it an institution fitted to promote morality. To raise and
purify the character of the profession, so that it may answer the ends of
justice without requiring insincerity in the advocate, is a proper end for a
good man who is a lawyer; a purpose on which he may well and worthily
employ his efforts and influence."[19]
Nothing need be added to enforce what has been so well said. The remark,
however, may be permitted, that the expression of private opinion as to the
merits of a controversy often puts the counsel at fearful odds. A young man,
unknown to the court or the jury, is trying his first case against a veteran of
standing and character: what will the asseveration of the former weigh
against that of the latter? In proportion, then, to the age, experience,
maturity of judgment, and professional character of the man, who falsely
endeavors to impress the court and jury with the opinion of his confidence
in the justice of his case, in that proportion is there danger that injury will
be done and wrong inflicted—in that proportion is there moral delinquency
in him who resorts to it.
Much interest was excited some years ago in England, by the circumstances
attending the defence of Courvoisier, indicted for the murder of Lord
William Russell. The crime was one of great atrocity. It came out after his
conviction, that during the trial he had confessed his guilt to his counsel, of
whom the eminent barrister Charles Phillips, Esq., was one. Mr. Phillips

was accused of having endeavored, notwithstanding this confession, to
fasten suspicion on the other servants in the house, to induce the belief that
the police had conspired with them to manufacture evidence against the
prisoner, and to impress the jury with his own personal belief in the
innocence of his client. How far these accusations were just in point of fact
was the subject of lively discussion in the newspapers and periodicals of the
time.[20]
The language of counsel, on such occasions, during the excitement of the
trial, in the fervor of an address to the jury, is not to be calmly and nicely
scanned in the printed report. The testimony of such a witness as Baron
Parke, at the time and on the spot,—he, too, aware of the exact position of
Mr. Phillips—and that confirmed by Chief Justice Tindal, is conclusive. To
charge him with acting falsehood, that is, with presenting the case as it
appeared upon the testimony, earnestly and confidently, means that he did
not do that, which would have been worse than retiring from his post.
The non-professional, as well as professional public in England, however,
agreed in saying that he would not have been justified in withdrawing from
the case: he was still bound to defend the accused upon the evidence;
though a knowledge of his guilt, from whatever source derived, might and
ought materially to influence the mode of the defence. No right-minded
man, professional or otherwise, will contend that it would have been right
in him to have lent himself to a defence, which might have ended, had it
been successful, in bringing down an unjust suspicion upon an innocent
person; or even to stand up and falsely pretend a confidence in the truth and
justice of his cause, which he did not feel. But there were those on this side
of the Atlantic, who demurred to the conclusion, that an advocate is under a
moral obligation to maintain the defence of a man who has admitted to him
his guilt. Men have been known, however, under the influence of some
delusion, to confess themselves guilty of crimes which they had not
committed: and hence, to decline acting as counsel in such a case, is a
dangerous refinement in morals.[21] Nothing seems plainer than the
proposition, that a person accused of a crime is to be tried and convicted, if
convicted at all, upon evidence, and whether guilty or not guilty, if the
evidence is insufficient to convict him, he has a legal right to be acquitted.
The tribunal that convicts without sufficient evidence may decide according
to the fact; but the next jury, acting on the same principle, may condemn an

innocent man. If this be so, is not the prisoner in every case entitled to have
the evidence carefully sifted, the weak points of the prosecution exposed,
the reasonable doubts presented which should weigh in his favor? And what
offence to truth or morality does his advocate commit in discharging that
duty to the best of his learning and ability? What apology can he make for
throwing up his brief? The truth he cannot disclose; the law seals his lips as
to what has thus been communicated to him in confidence by his client. He
has no alternative, then, but to perform his duty. It is his duty, however, as
an advocate merely, as Baron Parke has well expressed it, to use all fair
arguments arising on the evidence. Beyond that, he is not bound to go in
any case; in a case in which he is satisfied in his own mind of the guilt of
the accused, he is not justified in going.
Under all circumstances, the utmost candor should be used towards the
client. This is imperatively demanded alike by considerations of duty and
interest. It is much better for a man occasionally to lose a good client, than
to fail in so plain a matter. It is nothing but selfishness that can operate upon
a lawyer when consulted to conceal from the party his candid opinion of the
merits, and the probable result. It is fair that he should know it; for he may
not choose to employ a man whose views may operate to check his
resorting to all lawful means to effect success. Besides, most men, when
they consult an attorney, wish a candid opinion; it is what they ask and pay
for. It is true, that it is often very hard to persuade a man that he has not the
best side of a lawsuit: his interest blinds his judgment: his passion will not
allow him to reflect calmly, and give due weight to opposing
considerations. There are many persons who will go from lawyer to lawyer
with a case, until they find one who is willing to express an opinion which
tallies with their own. Such a client the lawyer, who acts firmly upon the
principle to which I have adverted, will now and then lose; but even such an
one, when finally unsuccessful, as the great probability is that he will be,
when he comes to sit down and calculate all that he has lost in time, money,
and character, by acting contrary to the advice first given, will revert to the
candid and honest opinion he then received, and determine, if ever he gets
into another difficulty of the kind, to resort to that attorney, and abide by his
advice. Thus may a man build up for himself a character far outweighing,
even in pecuniary value, all such paltry particular losses; it is to such men

that the best clients resort; they have the most important and interesting
lawsuits, and enjoy by far the most lucrative practice.
A very important part of the advocate's duty is to moderate the passions of
the party, and where the case is of a character to justify it, to encourage an
amicable compromise of the controversy. It happens too often at the close
of a protracted litigation that it is discovered, when too late, that the play
has not been worth the candle, and that it would have been better,
calculating everything, for the successful party never to have embarked in it
—to have paid the claim, if defendant, or to have relinquished it, if he was
plaintiff. Counsel can very soon discover whether such is likely to be the
case, and it cannot be doubted what their plain duty is under such
circumstances.
Besides this, the advocate is bound in honor, as well as duty, to disclose to
the client at the time of the retainer, every circumstance of his own
connection with the parties or prior relation to the controversy, which can or
may influence his determination in the selection of him for the office. An
attorney is bound to disclose to his client every adverse retainer, and even
every prior retainer, which may affect the discretion of the latter. No man
can be supposed to be indifferent to the knowledge of facts, which work
directly on his interests, or bear on the freedom of his choice of counsel.
When a client employs an attorney, he has a right to presume, if the latter be
silent on the point, that he has no engagements which interfere, in any
degree, with his exclusive devotion to the cause confided to him; that he has
no interest which may betray his judgment or endanger his fidelity.[22]
It is in some measure the duty of counsel to be the keeper of the conscience
of the client; not to suffer him, through the influence of his feelings or
interest, to do or say anything wrong in itself, and of which he would
himself afterwards repent. This guardianship may be carefully, and at the
same time kindly exerted. One particular will be mentioned in which its
exercise is frequently called for. The client will be often required, in the
course of a cause, to make affidavits of various kinds. There is no part of
his business with his client, in which a lawyer should be more cautious, or
even punctilious, than this. He should be careful lest he incur the moral
guilt of subornation of perjury, if not the legal offence. An attorney may
have communications with his client in such a way, in instructing him as to

what the law requires him to state under oath or affirmation, in order to
accomplish any particular object in view, as to offer an almost irresistible
temptation and persuasion to stretch the conscience of the affiant up to the
required point. Instead of drawing affidavits, and permitting them to be
sworn to as a matter of course, as it is to be feared is too often the case,
counsel should on all occasions take care to treat an oath with great
solemnity, as a transaction to be very scrupulously watched, because
involving great moral peril as well as liability to public disgrace and
infamy. It lies especially in the way of the profession to give a high tone to
public sentiment upon this all-important subject, the sacredness of an oath.
It is always the wisest and best course, to have an interview with the client,
and draw from him by questions, whether he knows the facts which you
know he is required to state, so that you may judge whether, as a
conscientious man, he ought to make such affidavit.
Another particular may be adverted to: the attempt to cover property from
the just demands of creditors. It is to be feared that gentlemen of the Bar
sometimes shut their eyes and, under the influence of feelings of
commiseration for an unfortunate client, feign not to see what is really very
palpable to everybody else. Surely they ought never to sanction, directly or
indirectly such shams, especially when the machinery of a judicial sale is
introduced more securely to accomplish the object. A purchase is made in
the name of a friend for the debtor's benefit and with the debtor's money,
though it may be hard to make that appear by legal evidence. When advice
is asked, as it sometimes is, how such a thing may be safely and legally
done, the idea held prominently before the party by his counsel should be,
that his estate is the property of his creditors, and that nothing but their
consent will justify an appropriation of any part of it to his benefit.
Lawyers too may very materially assist in giving a high tone to public
sentiment in the matter of stay and exemption laws. It is not every case in
which a man has a legal that he has a moral right to claim the benefit of
such laws. When a debtor with ample means to pay only wants to harass
and worry his creditor, who has resorted to legal process and obtained a
judgment, by keeping him out of his money, as it is often expressed, as long
as he can; or where he wishes to take advantage of hard times to make more
than legal interest, or with concealed means unknown to the execution
plaintiff, claims the exemption: these are cases which counsel ought to hold

up in their proper light to those whom they advise, and wash their hands of
the responsibility of them. According to the Jewish law, the cloak or outer
garment, which was generally used by the poorer classes as a covering
during sleep, could not be retained by the creditor to whom it had been
given in pledge, and of course was exempt by law from seizure for debt;
and our blessed Saviour, in his sermon on the mount, has been supposed to
refer to this exemption law, when he said: "And if any man will sue thee at
the law and take away thy coat, let him have thy cloak also;" that is, confine
not yourself in your transactions with your fellow-men to giving them
simply the strict measure of their legal rights: give them all that is honestly
theirs as far as you have ability, whether the law affords them a remedy or
not. There have been some noble instances of bankrupts who, upon
subsequently retrieving their fortunes, have fully discharged all their old
debts, principal and interest, though released or barred by the Statute of
Limitations; but such instances would be more common if the spirit of the
high and pure morality, which breathes through the sermon on the mount,
prevailed more extensively.
An important clause in the official oath is "to delay no man's cause for lucre
or malice." It refers, no doubt, primarily, to the cause intrusted to the
attorney, and prohibits him from resorting to such means for the purpose of
procuring more fees, or of indulging any feeling he may have against his
client personally. Such conduct would be a clear case of a violation of the
oath. But it is a question, also, whether the case generally, in which he is
retained, is not comprehended.[23] How far, then, can he safely go in
delaying the cause for the benefit of, and in pursuance of the instructions of
his client? A man comes to him and says: "I have no defence to this claim; it
is just and due, but I have not the means to pay it; I want all the time you
can get for me." The best plan in such instances, is, no doubt, at once
frankly to address his opponent, and he will generally be willing to grant all
the delay which he knows, in the ordinary course can be gained, and
perhaps more, as a consideration for his own time and trouble saved. If,
however, that be impracticable, it would seem that the suitor has a right to
all the delay, which is incident to the ordinary course of justice. The counsel
may take all means for this purpose, which do not involve artifice or
falsehood in himself or the party. The formal pleas put in are not to be
considered as false in this aspect, except such as are required to be

sustained by oath. In an ejectment, for example, an appearance need not be
entered until the second term, the legislature having seen fit to give that
much respite to the unjust possessor of real estate. But to stand by and see a
client swear off a case on account of the absence of a material witness,
when he knows that no witness can be material; or further to make affidavit
that his appeal or writ of error is not intended for delay, when he knows that
it is intended for nothing else, no high-minded man will be privy or consent
to such actions, much less have any active participation in them.
Subject, however, to the qualifications which have been stated, when a
cause is undertaken, the great duty which the counsel owes to his client, is
an immovable fidelity. Every consideration should induce an honest and
honorable man to regard himself, as far as the cause is concerned, as
completely identified with his client. The criminal and disgraceful offence
of taking fees of two adversaries, of allowing himself to be approached
corruptly, whether directly or indirectly, with a view to conciliation, ought,
like parricide in the Athenian law, to be passed over in silence in a code of
professional ethics.[24] All considerations of self should be sunk by the
lawyer in his duty to the cause. The adversary may be a man of station,
wealth, and influence; his good will may be highly valuable to him; his
enmity may do him great injury. He should not permit such thoughts to
arise in his mind. He should do his duty manfully, without fear, favor, or
affection.
At the same time, let it be observed, that no man ought to allow himself to
be hired to abuse the opposite party. It is not a desirable professional
reputation to live and die with, that of a rough tongue, which makes a man
to be sought out, and retained to gratify the malevolent feelings of a suitor
in hearing the other side well lashed and vilified. An opponent should
always be treated with civility and courtesy, and if it be necessary to say
severe things of him or his witnesses, let it be done in the language, and
with the bearing, of a gentleman. There is no point in which it becomes an
advocate to be more cautious, than in his treatment of the witnesses. In
general, fierce assaults upon them, unnecessary trifling with their feelings,
rough and uncivil behavior towards them in cross-examination, whilst it
may sometimes exasperate them to such a pitch, that they will perjure
themselves in the drunkenness of their passion, still, most generally tells
badly on the jury. They are apt to sympathize with a witness under such

circumstances.[25] It is as well unwise as unprofessional, in counsel, to
accuse a witness of having forsworn himself, unless some good ground,
other than the mere instruction of the client, is present in the evidence to
justify it. He may sift most searchingly, and yet with a manner and courtesy
which affords no ground for irritation, either in witness or opponent; and in
such case, if his questions produce irritation, it is a circumstance which will
weigh in his favor.
The practitioner owes to his client, with unshaken fidelity, the exertion of
all the industry and application of which he is capable to become perfect
master of the questions at issue, to look at them in all their bearings, to
place himself in the opposite interest, and to consider and be prepared as far
as possible, for all that may be said or done on the contrary part. The duty
of full and constant preparation, is too evident to require much elaboration.
It is better, whenever it is possible to do so, to make this examination
immediately upon the retainer, and not to postpone it to later stages in the
proceedings. The opportunity is often lost, of ascertaining facts, and
securing evidence, from putting off till too late, the business of
understanding thoroughly all that it will be necessary to adduce on the trial.
In this way, a lawyer will attain what is very important, that his client may
be always prepared, as well as himself, have his attention alive to his case,
know what witnesses are important, and keep a watch upon them, so that
their testimony may not be lost, and upon the movements of his adversary,
lest he should at any time be taken by surprise. It would be an excellent rule
for him, at short stated periods, to make an examination of the record of
every case which he has under his charge. It always operates
disadvantageously to an attorney in the eyes of those who employ him, as
well as the public, when he fails in consequence of some neglect or
oversight. Frequent applications to the court, to relieve him from the
consequences of his inattention, tell badly on his character and business. He
may be able to make very plausible excuses; but the public take notice, that
some men with large business never have occasion to make such excuses,
and that other men with less, are constantly making them. Every instance of
the kind helps to make up such a character. A young man should be
particularly cautious, and dread such occurrences as highly injurious to his
prospects. If he escapes the notice and animadversion of his constituent, and
the legal consequences of his neglect, by the intervention of the court, or the

indulgence of his opponent, the members of the Bar are lynx-eyed in
observing such things.
It may appear like digressing from our subject, to speak of such qualities as
attention, accuracy, and punctuality, but like the minor morals of common
life, they are little rills which at times unite and form great rivers. A life of
dishonor and obscurity, if not ignominy, has often taken its rise from the
fountain of a little habit of inattention and procrastination. System is
everything. It can accomplish wonders. By this alone, as by a magic
talisman, may time be so economized that business can be attended to and
opportunities saved for study, general reading, exercise, recreation, and
society. "A man that is young in years," says Lord Bacon, "may be old in
hours, if he has lost no time." Hurry and confusion result from the want of
system; and the mind can never be clear when a man's papers and business
are in disorder. It is recorded of the pensionary De Witt, of the United
Provinces, who fell a victim to the fury of the populace in the year 1672,
that he did the whole business of the republic, and yet had time left for
relaxation and study in the evenings. When he was asked how he could
possibly bring this to pass, his answer was, that "nothing was so easy; for
that it was only doing one thing at a time, and never putting off anything till
to-morrow that could he done to-day." "This steady and undissipated
attention to one object," remarks Lord Chesterfield, in relating this
anecdote, "is a sure mark of a superior genius." It is of the highest
importance, also, that a lawyer should in early professional life, cultivate
the habit of accuracy. It is a great advantage over opposing counsel,—a
great recommendation in the eyes of intelligent mercantile and business
men. A professional note to a merchant carelessly written will often of itself
produce an unfavorable impression on his mind; and that impression he
may communicate to many others. The importance of a good handwriting
cannot be overrated. A plain legible hand every man can write who chooses
to take the pains. A good handwriting is a passport to the favor of clients,
and to the good graces of judges, when papers come to be submitted to
them. It would be a good rule for a young lawyer, though at first perhaps
irksome and inconvenient, never to suffer a letter or paper to pass from his
hands with an erasure or interlineation. The time and trouble it may cost at
the outset will be repaid in the end by the habit he will thereby acquire of
transacting his business with care, neatness, and accuracy.

He cannot be faithful to his clients unless he continues to be a hard student
of the learning of his profession. Not merely that he should thoroughly
investigate the law applicable to every case which may be intrusted to him;
though that, besides its paramount necessity to enable him to meet the
responsibility he has assumed to that particular client, will be the subsidiary
means of important progress in his professional acquisitions. "Let any
person," says Mr. Preston, "study one or two heads of the law fully and
minutely, and he will have laid the foundation or acquired the aptitude for
comprehending other heads of the law."[26] But, besides this, he should
pursue the systematic study of his profession upon some well-matured plan.
When admitted to the Bar, a young man has but just begun, not finished, his
legal education. If he have mastered some of the most general elementary
principles, and has acquired a taste for the study, it is as much as can be
expected from his clerkship. There are few young men who come to the
Bar, who cannot find ample time in the first five or seven years of their
novitiate, to devote to a complete acquisition of the science they profess, if
they truly feel the need of it, and resolve to attain it. The danger is great that
from a faulty preparation,—from not being made to see and appreciate the
depth, extent, and variety of the knowledge they are to seek, they will
mistake the smattering they have acquired for profound attainments. The
anxiety of the young lawyer is a natural one at once to get business—as
much business as he can. Throwing aside his books, he resorts to the many
means at hand of gaining notoriety and attracting public attention, with a
view of bringing clients to his office. Such an one in time never fails to
learn much by his mistakes, but at a sad expense of character, feeling, and
conscience. He at last finds that in law, as in every branch of knowledge, "a
little learning is a dangerous thing;" that what he does not know falsifies
often in its actual application that which he supposed he certainly did know;
and after the most valuable portion of his life has been frittered away upon
objects unworthy of his ambition, he is too apt to conclude that it is now too
late to redeem his time; he finds that he has lost all relish for systematic
study, and when he is driven to the investigation of particular questions, is
confounded and embarrassed—unable to thread his way through the mazes
of authorities, to reconcile apparently conflicting cases, or deduce any
satisfactory conclusion from them—in short, he has no greater aptitude,
accuracy, and discrimination than when he set out in the beginning of his
studies. No better advice can be given to a young practitioner, than to

confine himself generally to his office and books, even if this should require
self-denial and privation, to map out for himself a course of regular studies,
more or less extended, according to circumstances, to aim at mastering the
works of the great luminaries of the science, Coke, Fearne, Preston, Powell,
Sugden, and others, not forgetting the maxim, melius est petere fontes quam
sectari rivulos, and to investigate for himself the most important and
interesting questions, by an examination and research of the original
authorities. "He that reacheth deepest seeth the amiable and admirable,
secrets of the law,"[27] and thus may the student "proceed in his reading
with alacrity, and set upon and know how to work into with delight these
rough mines of hidden treasure."[28]
It may be allowed here to commend to most serious consideration, the
remarks of one of the most eminent of the profession—Horace Binney—a
gentleman of our own Bar, whose example enforces and illustrates their
value: "There are two very different methods of acquiring a knowledge of
the laws of England, and by each of them, men have succeeded in public
estimation to an almost equal extent. One of them, which may be called the
old way, is a methodical study of the general system of law, and of its
grounds and reasons, beginning with the fundamental law of estates and
tenures, and pursuing the derivative branches in logical succession, and the
collateral subjects in due order; by which the student acquires a knowledge
of principles that rule in all departments of the science, and learns to feel as
much as to know what is in harmony with the system and what not. The
other is, to get an outline of the system, by the aid of commentaries, and to
fill it up by the desultory reading of treatises and reports, according to the
bent of the student, without much shape or certainty in the knowledge so
acquired, until it is given by investigation in the course of practice. A good
deal of law may be put together by a facile or flexible man, in the second of
these modes, and the public are often satisfied; but the profession itself
knows the first, by its fruits, to be the most effectual way of making a great
lawyer."[29]
Such a course of study as is here recommended, is not the work of a day or
a year. In the meantime let business seek the young attorney; and though it
may come in slowly, and at intervals, and promise in its character neither
fame nor profit, still, if he bears in mind that it is an important part of his
training, that he should understand the business he does thoroughly, that he

should especially cultivate, in transacting it, habits of neatness, accuracy,
punctuality, and despatch, candor towards his client, and strict honor
towards his adversary, it may be safely prophesied that his business will
grow as fast as it is good for him that it should grow; while he gradually
becomes able to sustain the largest practice, without being bewildered and
overwhelmed.
Let him be careful, however, not to settle down into a mere lawyer. To reach
the highest walks of the profession, something more is needed. Let polite
literature be cultivated in hours of relaxation. Let him lose not his
acquaintance with the models of ancient taste and eloquence. He should
study languages, as well from their practical utility in a country so full of
foreigners, as from the mental discipline, and the rich stores they furnish.
He should cultivate a pleasing style, and an easy and graceful address. It
may be true, that in a "court of justice, the veriest dolt that ever stammered
a sentence, would be more attended to, with a case in point, than Cicero
with all his eloquence, unsupported by authorities,"[30] yet even an
argument on a dry point of law, produces a better impression, secures a
more attentive auditor in the judge, when it is constructed and put together
with attention to the rules of the rhetorical art; when it is delivered, not
stammeringly, but fluently; when facts and principles, drawn from other
fields of knowledge, are invoked to support and adorn it; when voice, and
gesture, and animation, give it all that attraction which earnestness always
and alone imparts. There is great danger that law reading, pursued to the
exclusion of everything else, will cramp and dwarf the mind, shackle it by
the technicalities with which it has become so familiar, and disable it from
taking enlarged and comprehensive views even of topics falling within its
compass as well as of those lying beyond its legitimate domain. An amusing
instance of this is said to have occurred in the debate in the House of
Commons, on the great question as to the right of the Parliament of Great
Britain to tax the Colonies. At the close of the discussion, in which Fox and
Burke, as well as others, had distinguished themselves, a learned lawyer
arose and said that the real point on which the whole matter turned, had
been unaccountably overlooked. In the midst of deep silence and anxious
expectation from all quarters of the House, he proceeded to show that the
lands of the Colonies had been originally granted by the Crown, and were
held ut de honore, as of the Manor of Greenwich, in the county of Kent; and

thence he concluded that as the Manor of Greenwich was represented in
Parliament, so the lands of the North American Colonies (by tenure, a part
of the Manor) were represented by the knights of the shire for Kent.[31]
Let me remark, too, before hastening to another topic more immediately
connected with the duties of active professional life, that the cultivation of a
taste for polite literature has other importance besides its value as a
preparation and qualification for practice and forensic contests. Nothing is
so well adapted to fill up the interstices of business with rational enjoyment,
to make even a solitary life agreeable, and to smooth pleasantly and
honorably the downward path of age. The mental vigor of one who is fond
of reading, other things being equal, becomes impaired at a much later
period of life. The lover of books has faithful companions and friends, who
will never forsake him under the most adverse circumstances. "As soon as I
found," said Sir Samuel Romilly, "that I was to be a busy lawyer for life, I
strenuously resolved to keep up my habit of non-professional reading; for I
had witnessed so much misery in the last years of many great lawyers,
whom I had known, from their loss of all taste for books, that I regarded
their fate as my warning." Mr. Gibbon was wont to say that he would not
exchange his love of reading for the wealth of the Indies. It is indeed a
fortune, of which the world's reverses can never deprive us. It fortifies the
soul against the calamities of life. It moderates, if it is not strong enough to
govern and control the passions. It favors not the association of the cup, the
dice-box, or the debauch. The atmosphere of a library is uncongenial with
them. It clings to home, nourishes the domestic affections, and the hopes
and consolations of religion.
Another very delicate and often embarrassing question in the relation of
attorney and client is in regard to the subject of compensation for
professional services.
In all countries advanced in civilization, and whose laws and manners have
attained any degree of refinement, there has arisen an order of advocates
devoted to prosecuting or defending the lawsuits of others. Before the
tribunals of Athens, although the party pleaded his own cause, it was usual
to have the oration prepared by one of an order of men devoted to this
business, and to compensate him liberally for his skill and learning. Many
of the orations of Isocrates, which have been handed down to us, are but

private pleadings of this character. He is said to have received one fee of
twenty talents, about eighteen thousand dollars of our money, for a speech
that he wrote for Nicocles, king of Cyprus. Still, from all that appears, the
compensation thus received was honorary or gratuitous merely. Among the
early institutions of Rome, the relation of patron and client, which existed
between the patrician and plebeian, bound the former to render the latter
assistance and protection in his lawsuits, with no other return than the
general duty, which the client owed to his patron. As every patrician could
not be a sufficiently profound lawyer to resolve all difficulties, which might
arise in the progress of a complex system of government and laws, though
he still might accomplish himself in the art of eloquence, there arose soon a
new order of men, the jurisconsults. They also received no compensation.
On the public days of market, or assembly, the masters of the art were seen
walking in the forum, ready to impart the needful advice to the meanest of
their fellow-citizens, from whose votes on a future occasion, they might
solicit a grateful return. As their years and honors increased, they seated
themselves at home, on a chair or throne, to expect with patient gravity the
visits of their clients, who at the dawn of day, from the town and country,
began to thunder at their doors.[32] Often, indeed, the patron was able in his
own person to exercise the office both of advocate and counsellor. It was
only in the more glorious, because the more virtuous, period of the republic,
that the relation was sustained upon so honorable a foundation. In the
progress of society, the business of advocating causes became a distinct
profession; and then it was usual to pay a fee in advance, which was called
a gratuity or present. As this was a mere honorary recompense, the client
was under no legal obligation to pay it. But the result necessarily was, that
if the usual present was not given, the advocate did not consider himself
bound in honor to undertake the advocation of the cause before the courts.
Afterwards, Marcus Cincius Alimentus, the tribune of the people, procured
the passage of the law known as the Cincian law, prohibiting the patron or
advocate from receiving any money or other present for any cause; and
annulling all gratuities or presents made by the client to the patron or
advocate. But as no penalty was prescribed for the breach of the law, it of
course became a dead letter. The Emperor Augustus afterwards re-enacted
the Cincian law, and prescribed penalties for its breach. But towards the end
of his reign, the advocates were again authorized to receive fees or presents
from their clients. The Emperor Tiberius also permitted them to receive

such forced gratuities. This led to the abuse referred to by Tacitus, and
induced the Senate to insist upon the enforcement of the re-enactment of the
Cincian law, or rather a law limiting the amount of the fees of advocates.[33]
Nero revoked the law of Claudian, which was subsequently re-enacted by
the Emperor Trajan, with the additional restriction that the advocate should
not be permitted to receive his fee or gratuity, until the cause was decided.
The younger Pliny mentions a law, which authorized the advocate, after the
pleadings in the cause had been made and the judgment had been given, to
receive the fee, which might be voluntarily offered by the client, either in
money or a promise to pay. Erskine, in his Institutes of the Law of Scotland,
understands the law in the Digest De Extraordinariis Cognitionibus as
authorizing a suit for the fee of a physician or advocate without a previous
agreement for a specific sum.[34]
The consequences may be best told in the impressive language of the
historian of the Decline and Fall of the Empire: "The noble art, which had
once been preserved as the sacred inheritance of the patricians, was fallen
into the hands of freedmen and plebeians, who, with cunning rather than
with skill, exercised a sordid and pernicious trade. Some of them procured
admittance into families for the purpose of fomenting differences, of
encouraging suits, and of preparing a harvest of gain for themselves or their
brethren. Others, recluse in their chambers, maintained the dignity of legal
professors, by furnishing a rich client with subtleties to confound the
plainest truth, and with arguments to color the most unjustifiable
pretensions. The splendid and popular class was composed of the advocates,
who filled the Forum with the sound of their turgid and loquacious rhetoric.
Careless of fame and of justice, they are described for the most part, as
ignorant and rapacious guides, who conducted their clients through a maze
of expense, of delay, and of disappointment; from whence, after a tedious
series of years, they were at length dismissed when their patience and
fortune were almost exhausted."[35] Is not this probably the history of the
decline of the profession in all countries from an honorable office to a
money-making trade?
It is the established law of England, that a counsellor or barrister cannot
maintain a suit for his fees.[36] There is in that country a class of mere
attorneys, who attend to legal business out of court, who bring suits and
conduct them up to issue; but who are not allowed to speak in court. This

latter privilege is confined to serjeants and barristers. Attorneys are
regulated by statute, and are subject to many restrictions; having a rate of
fees, settled either by statute or established usage; and required to be fixed
by the taxation of an officer of the court before a suit can be brought for
them. Barristers are admitted only under the regulations established by the
various inns of court; and the serjeants, who long had the monopoly of the
Bar of the Common Pleas, are appointed by patent from the king. A
barrister cannot be an attorney.[37]
In this country, there is in general no distinction between attorneys and
counsellors. The same persons fulfil the duties of both. Hence no difference
is made between their right to recover compensation for services in the one
capacity or the other.[38] In Pennsylvania, it was held at one time that an
attorney could not recover, without an express promise, anything beyond
the trifling and totally inadequate sum provided in the fee-bill. That pure
and eminent jurist Chief Justice Tilghman thought that the policy of
refusing a legal remedy for anything beyond that had not been adopted
without great consideration.[39] He stands not alone in the opinion that it has
been neither for the honor nor profit of the Bar to depart from the ancient
rule.[40] It has been departed from in this State, and the early decision
overruled, however; and it must be frankly admitted, that the current of
decisions in our sister States is in the same way.[41]
It is supposed that the ancient rule was artificial in its structure, and
practically unjust,—that it is wholly inconsistent with our ideas of equality
to suppose that the business or profession, by which any one earns the daily
bread of himself or of his family, is so much more honorable than the
business of other members of the community as to prevent him from
receiving a fair compensation for his services on that account.[42] It has
been pronounced ridiculous to attempt to perpetuate a monstrous legal
fiction, by which the hard-working lawyers of our day, toiling till midnight
in their offices, are to be regarded in the eye of the law in the light of the
patrician jurisconsults of ancient Rome, when

—— dulce diu fuit et solemne, reclusa
Mane domo vigilare, clienti promere jura,—

and who at daybreak received the early visits of their humble and dependent
clients, and pronounced with mysterious brevity the oracles of the law.[43]
These are arguments which are more plausible than sound: they are
imposing, but not solid. The question really is, what is best for the people at
large,—what will be most likely to secure them a high-minded, honorable
Bar? It is all-important that the profession should have and deserve that
character. A horde of pettifogging, barratrous, custom-seeking, money-
making lawyers, is one of the greatest curses with which any state or
community can be visited. What more likely to bring about such a result
than a decision, which strips the Bar of its character as a learned profession,
on the principle avowed by one court, that it is now a calling as much as
any mechanical art,—or by another, in effect, that the order of things is in
the present condition of society reversed, and clients are really the patrons
of their attorneys? A more plausible reason is that the client is safer from
the oppression of extortionate counsel, by putting both upon the equal
footing of legal right and obligation. It would appear, however, better that
the parties should make an express agreement before or at the time of
retainer, or that the amount should be left to the justice of the counsel, and
the honor and liberality of the client subsequently. Every judge, who has
ever tried a case between attorney and client, has felt the delicacy and
difficulty of saying what is the measure of just compensation. It is to be
graduated, according to a high legal authority, with a proper reference to the
nature of the business performed by the counsel for the client, and his
standing in his profession for learning and skill; whereby the value of his
services is enhanced to his client.[44] Is then the standing and character of
the counsel in his profession for learning and skill to be a question of fact to
be determined by the jury in every case in which a lawyer sues his client?
How determined, if necessary to the decision of the question? Not surely by
the crude opinions of the jurors; but by testimony of members of the same
profession on the subject. This never is done; it would be a very difficult as
well as delicate question for a lawyer to pronounce upon the standing of a
professional brother. The most that can be done is to call gentlemen to say
what they would have considered reasonable for such services, had they

been performed by themselves. Some may testify up to a very high point,
from an excusable, though foolish vanity; others to a very low one, from the
despicable, desire of attracting custom to a cheap shop.[45] No one can ever
have seen such a cause tried without feeling, that the Bar had received by it
an impulse downwards in the eyes of bystanders and the community. The
case is thrown into the jury-box, to be decided at haphazard, according as
the twelve men may chance to think or feel. He, who narrowly watches
such controversies, cannot fail to see that the right of a counsel to enforce
his claim for legal compensation is far from being calculated to protect the
client from oppression and extortion.
It is not worth while, however, to quarrel with the decision. Let us inquire
rather what should be the course of counsel, without regard to it. He
certainly owes it to his profession, as well as himself, that when the client
has the ability, his services should be recompensed; and that according to a
liberal standard.[46] There are many cases, in which it will be his duty,
perhaps more properly his privilege, to work for nothing. It is to be hoped,
that the time will never come, at this or any other Bar in this country, when
a poor man with an honest cause, though without a fee, cannot obtain the
services of honorable counsel, in the prosecution or defence of his rights.
But it must be an extraordinary—a very peculiar case—that will justify an
attorney in resorting to legal proceedings, to enforce the payment of fees. It
is better that he should be a loser, than have a public contest upon the
subject with a client. The enlightened Bar of Paris, have justly considered
the character of their order involved in such proceedings; and although by
the law of France, an advocate may recover for his fees by suit, yet they
regard it as dishonorable, and those who should attempt to do it, would be
immediately stricken from the roll of attorneys.[47]
Regard should be had to the general usage of the profession, especially as to
the rates of commission to be charged for the collection of undefended
claims. Except in this class of cases, agreements between counsel and client
that the compensation of the former shall depend upon final success in the
lawsuit—in other words contingent fees—however common such
agreements may be, are of a very dangerous tendency, and to be declined in
all ordinary cases. In making his charge, after the business committed to
him has been completed, as an attorney may well take into consideration the
general ability of his client to pay, so he may also consider the pecuniary

benefit, which may have been derived from his services. For a poor man,
who is unable to pay at all, there may be a general understanding that the
attorney is to be liberally compensated in case of success. What is objected
to, is an agreement to receive a certain part or proportion of the sum, or
subject-matter, in the event of a recovery, and nothing otherwise.
It is unnecessary to inquire here whether such a contract is void as
champertous, and contrary to public policy. None of the English statutes on
the subject of champerty have been reported as in force here; but it was
once a question whether it was not an offence at common law,
independently altogether, of any statute enactment. Enlightened judges in
several of our sister States have so considered it. "The purchase of a
lawsuit," says Chancellor Kent, "by an attorney, is champerty in its most
odious form; and it ought equally to be condemned on principles of public
policy. It would lead to fraud, oppression, and corruption. As a sworn
minister of the courts of justice, the attorney ought not to be permitted to
avail himself of the knowledge he acquires in his professional character, to
speculate in lawsuits. The precedent would tend to corrupt the profession,
and produce lasting mischief to the community."[48] "This is not the time
nor place," says Chief Justice Gibson, "to discuss the legality of contingent
fees; though it be clear that if the British statutes of champerty were in force
here, such fees would be prohibited by them. But a contract of the sort is
certainly not to be encouraged by implication, from a questionable usage,
nor established by less than a positive stipulation."[49] A contract to allow a
compensation for services in procuring the passage of a private Act of
Assembly, has been held to be unlawful and void, as against public policy.
[50] "The practice," said Judge Rogers, in delivering the opinion of the court,
"which has generally obtained in this State, to allow a contingent
compensation for legal services, has been a subject of regret; nor am I
aware of any direct decision by which the practice has received judicial
sanction in our courts." The case of Ex parte Plitt,[51] however, recognizes
fully the lawfulness of contingent fees, though in his opinion Judge Kane
says: "It is not a practice to be generally commended, exposing honorable
men not unfrequently to misapprehension and illiberal remark, and giving
the apparent sanction of their example to conduct, which they would be
among the foremost to reprehend. Such contracts may sometimes be
necessary in a community such as that of Pennsylvania has been, and

perhaps as it is yet; and when they have been made in abundant good faith
—uberrima fide—without suppression or reserve of fact or exaggeration of
apprehended difficulties, or under influence of any sort or degree; and when
the compensation bargained for is absolutely just and fair, so that the
transaction is characterized throughout by 'all good fidelity to the client,' the
court will hold such contracts to be valid. But it is unnecessary to say, that
such contracts, as they can scarcely be excepted from the general rule,
which denounces as suspicious the dealings of fiduciaries with those under
their protection, must undergo the most exact and jealous scrutiny before
they can expect the judicial ratification." Finally, the question of law may
be considered as at rest in Pennsylvania by the decision of the Supreme
Court in Patten v. Wilson,[52] which recognized an agreement between
counsel and client to pay him out of the verdict as an equitable assignment,
and gave effect to it as against an attaching creditor.
It is not, however, with the lawfulness, but with the policy and morality of
the practice, that we are now dealing. Admitting its legality, is it consistent
with that high standard of moral excellence, which the members of this
profession should ever propose to themselves?
Let us look at what would be the results of such a practice, if it became
general. If these are bad, if its tendency is to corrupt and degrade the
character of the profession, then, however confident any man may feel in
his moral power to ward off its evil influences from his own character and
conduct, he should be careful not to encourage and give countenance to it
by his example.
It is one of that class of actions, which in particular instances may be
indifferent; but their morality is to be tested by considering what would be
the consequences of their general prevalence.
It is to be observed, then, that such a contract changes entirely the relation
of counsel, to the cause. It reduces him from his high position of an officer
of the court and a minister of justice, to that of a party litigating his own
claim. Having now a deep personal interest in the event of the controversy,
he will cease to consider himself subject to the ordinary rules of
professional conduct. He is tempted to make success, at all hazards and by
all means, the sole end of his exertions. He becomes blind to the merits of

the case, and would find it difficult to persuade himself, no matter what
state of facts might be developed in the progress of the proceedings, as to
the true character of the transaction, that it was his duty to retire from it.
It places his client and himself in a new and dangerous relation. They are no
longer attorney and client, but partners. He has now an interest, which gives
him a right to speak as principal, not merely to advise as to the law, and
abide by instructions. It is either unfair to him or unfair to the client. If he
thinks the result doubtful, he throws all his time, learning, and skill away
upon what, in his estimation, is an uncertain chance. He cannot work with
the proper spirit in such a case. If he believes that the result will be success,
he secures in this way a higher compensation than he is justly entitled to
receive.
It is an undue encouragement to litigation. Men, who would not think of
entering on a lawsuit, if they knew that they must compensate their lawyer
whether they win or lose, are ready upon such a contingent agreement to try
their chances with any kind of a claim. It makes the law more of a lottery
than it is.
The worst consequence is yet to be told,—its effect upon, professional
character. It turns lawyers into higglers with their clients. Of course it is not
meant that these are always its actual results; but they are its inevitable
tendencies,—in many instances its practical working. To drive a favorable
bargain with the suitor in the first place, the difficulties of the case are
magnified and multiplied, and advantage taken of that very confidence,
which led him to intrust his interests to the protection of the advocate.[53]
The parties are necessarily not on an equal footing in making such a
bargain. A high sense of honor may prevent counsel from abusing his
position and knowledge; but all have not such high and nice sense of honor.
If our example goes towards making the practice of agreements for
contingent fees general, we assist in placing such temptations in the way of
our professional brethren of all degrees—the young, the inexperienced, and
the unwary, as well as those whose age and experience have taught them
that a lawyer's honor is his brightest jewel, and to be guarded from being
sullied, even by the breath of suspicion, with the most sedulous care.

A gentleman of the largest experience and highest character for integrity
and learning at the Philadelphia Bar, thus strongly confirms the views
which have been here expressed on the subject of contingent fees: "And
further," says Mr. Price in his concluding advice to students, at the close of
his Essay on Limitation and Lien, "permit me to advise and earnestly to
admonish you, for the preservation of professional honor and integrity, to
avoid the temptation of bargaining for fees or shares of any estate or other
claim, contingent upon a successful recovery. The practice directly leads to
a disturbance of the peace of society and to an infidelity to the professional
obligation promised to the court, in which is implied an absence of desire or
effort of one in the ministry of the Temple of Justice, to obtain a success
that is not just as well as lawful. It is true, as a just equivalent for many
cases honorably advocated and incompetently paid by the poor, a
compensation may and will be received, the more liberal because of the
ability produced by success; but let it be the result of no bargain, exacted as
a price before the service is rendered, but rather the grateful return for
benefits already conferred. If rigid in your terms, in protection of the right
of the profession to a just and honorable compensation, let it rather be in the
amount of the required retainer, when it will have its proper influence in the
discouragement of litigation."
A lawyer should avoid, as far as possible, all transactions of business with
his clients, not only in regard to matters in suit in his hands, but in relation
to other matters. He should avoid standing toward them, either in the
relation of borrower or lender. A young practitioner should especially avoid
borrowing of any one. Let him retrench, seek the humblest employment of
drudgery rather than do it; but, if borrow he must, let it be of any one else
than a client. All transactions of business between attorney and client are
looked upon with eyes of suspicion and disfavor, in courts of justice.
It is a settled doctrine of equity, in England, that an attorney cannot, while
the business is unfinished in which he had been employed, receive any gift
from his client, or bind his client in any mode to make him greater
compensation for his services than he would have a right to demand if no
contract should be made during the relation. If an attorney accept a gift
from one thus connected with him, it may be recovered in a court of
chancery, by the donor or his creditors, should it be necessary for them to
assert a right to it to satisfy their demands. When the relation of solicitor

and client exists, and a security is taken by the solicitor from his client, the
presumption is that the transaction is unfair; and the onus of proving its
fairness is upon the solicitor.[54] A man ought to be very careful of placing
himself in a position to have any of his transactions regarded in that light. If
it should ever come to be canvassed in court, the bandying of the phrases,
fraud and presumption of fraud, as applied to him, may, and probably will,
have an unfavorable effect on his reputation. Most emphatically should it be
said, let nothing tempt him, not even the knowledge and consent of the
client, to keep the money, which may have come to his hands
professionally, one single instant longer than is absolutely necessary. The
consequences of any difficulty arising upon this head, will be fatal to his
professional character and prospects.
The official oath, to which reference has already more than once been
made, obliges the attorney "to use no falsehood." It seems scarcely
necessary to enforce this topic. Truth in all its simplicity—truth to the court,
client, and adversary—should be indeed the polar star of the lawyer. The
influence of only slight deviations from truth, upon professional character,
is very observable. A man may as well be detected in a great as a little lie. A
single discovery, among professional brethren, of a failure of truthfulness,
makes a man the object of distrust, subjects him to constant mortification,
and soon this want of confidence extends itself beyond the Bar to those who
employ the Bar. That lawyer's case is truly pitiable, upon the escutcheon of
whose honesty or truth, rests the slightest tarnish.
Let it be remembered and treasured in the heart of every student, that no
man can ever be a truly great lawyer, who is not in every sense of the word,
a good man. A lawyer, without the most sterling integrity, may shine for a
while with meteoric splendor; but his light will soon go out in blackness of
darkness. It is not in every man's power to rise to eminence by distinguished
abilities. It is in every man's power, with few exceptions, to attain
respectability, competence, and usefulness. The temptations which beset a
young man in the outset of his professional life, especially if he is in
absolute dependence upon business for his subsistence, are very great. The
strictest principles of integrity and honor, are his only safety. Let him begin
by swerving from truth or fairness, in small particulars, he will find his
character gone—whispered away, before he knows it. Such an one may not
indeed be irrecoverably lost; but it will be years before he will be able to

regain a firm foothold. There is no profession, in which moral character is
so soon fixed, as in that of the law; there is none in which it is subjected to
severer scrutiny by the public. It is well, that it is so. The things we hold
dearest on earth,—our fortunes, reputations, domestic peace, the future of
those dearest to us, nay, our liberty and life itself, we confide to the integrity
of our legal counsellors and advocates. Their character must be not only
without a stain, but without suspicion. From the very commencement of a
lawyer's career, let him cultivate, above all things, truth, simplicity, and
candor: they are the cardinal virtues of a lawyer. Let him always seek to
have a clear understanding of his object: be sure it is honest and right, and
then march directly to it. The covert, indirect, and insidious way of doing
anything, is always the wrong way. It gradually hardens the moral faculties,
renders obtuse the perception of right and wrong in human actions, weighs
everything in the balances of worldly policy, and ends most generally, in the
practical adoption of the vile maxim, "that the end sanctifies the means." If
it be true, as he has said, who, more than any mere man, before or since his
day, understood the depths of human character, that one even may,

"By telling of it,
Make such a sinner of his memory;
To credit his own lie:"—

we should be careful never to speak or act, without regard to the morale of
our words or actions. A habit may and will grow to be a second nature.

"That monster, custom, who all sense doth eat,
Of habit's devil, is angel yet in this:
That to the use of actions fair and good
He likewise gives a frock or livery
That aptly is put on."

There is no class of men among whom moral delinquency is more marked
and disgraceful than among lawyers. Among merchants, so many honest
men become involved through misfortune, that the rogue may hope to take
shelter in the crowd, and be screened from observation. Not so the lawyer.
If he continues to seek business, he must find his employment in lower and
still lower grades; and will soon come to verify and illustrate the remark of
Lord Bolingbroke, that "the profession of the law, in its nature the noblest

and most beneficial to mankind, is in its abuse and abasement, the most
sordid and pernicious."
While such are the depths to which a lawyer may sink, look, on the other
hand, at the noble eminence of honor, usefulness, and virtue, to which he
may rise. Where is the profession, which, in this world, holds out brighter
rewards? Genius, indeed, will leave its mark in whatever sphere it may
move. But learning, industry, and integrity, stand nowhere on safer or
higher ground, than in the walks of the law. In all free countries, it is the
avenue not only to wealth, but to political influence and distinction. In
England, a large proportion of the house of peers, owe their seats and
dignities, as well as their possessions, either to their own professional
success, or to that of some one of their ancestors.[55] In this country, all our
Presidents but three, have been educated to the Bar. Of the men who have
distinguished themselves in the cabinet, in the halls of legislation, and in
foreign diplomacy, how large is the proportion of lawyers! How powerful
has always been the profession in guiding the popular mind, in forming that
greatest of all counterchecks to bad laws and bad administration,—public
opinion! It is the school of eloquence—that, which more than all else
besides, has swayed, still sways, and always will sway, the destinies of free
peoples. Let a man, to the possession of this noble faculty, add the high
character of purity and justice, integrity and honor, and where are to be
found the limits of his moral power over his fellow-citizens?[56] It is well to
read carefully and frequently, the biographies of eminent lawyers. It is good
to rise from the perusal of the studies and labors, the trials and conflicts, the
difficulties and triumphs, of such men, in the actual battle of life, with the
secret feeling of dissatisfaction with ourselves. Such a sadness in the bosom
of a young student, is like the tears of Thucydides, when he heard
Herodotus read his history at the Olympic Games, and receive the plaudits
of assembled Greece. It is the natural prelude to severer self-denial, to more
assiduous study, to more self-sustaining confidence. Some one has
recommended that Middleton's Life of Cicero should be perused, at
frequent intervals, as the vivid picture of a truly great mind, in the midst of
the most stirring scenes, ever intent upon its own cultivation and
advancement, as its only true glory; and that in effect sketched by his own
master hand.[57] The autobiography of Edward Gibbon will rouse an
ambitious student like the sound of a trumpet. But of English biographies,

there is no one, it occurs to me, better adapted to the purpose mentioned,
than the Life of Sir William Jones, by Lord Teignmouth. It exhibits the
wonders, which unremitted study, upheld by the pure and noble ambition of
doing good, can accomplish in the space of a short life. He was a man of the
most varied knowledge. An extensive and indeed extraordinary
acquaintance with ancient and modern languages, was perhaps his chief
accomplishment. Although he engaged very late in life in the study of the
law, such was his industry and success, that he soon occupied the highest
judicial station, in British India; and the profession are indebted to his pen,
for one of the most beautiful of the elementary treatises, which adorn the
lawyer's library. "In his early days," says his biographer, "he seems to have
entered upon his career of study, with this maxim strongly impressed upon
his mind, that whatever had been attained, was attainable by him; and it has
been remarked, that he never neglected nor overlooked any opportunity of
improving his intellectual faculties, or of acquiring esteemed
accomplishments." Notwithstanding his numerous occupations at the Bar at
home, the onerous duties of his station in India, and his premature death,
before he had attained his forty-eighth year, he has left behind many learned
works, which illustrate Oriental languages and history, and attest the extent
of his labors and acquisitions. Indeed, it might be regarded as impossible,
were we not informed of the regular allotment which he made of his time to
particular occupations, and his scrupulous adherence to the distribution he
had thus made. The moral character of this eminent man, was no less
exemplary. It is the testimony of one of his contemporaries: "He had more
virtues and less faults, than I ever yet knew in any human being; and the
goodness of his head, admirable as it was, was exceeded by that of his
heart." His own measure of true greatness, humanly speaking, he has left
behind him, in very emphatic words: "If I am asked, who is the greatest
man? I answer, the best. And if I am required to say, who is the best? I
reply, he that has deserved most of his fellow-creatures."[58]
This department of English literature has been recently much enriched by
the labors of the present Lord High Chancellor of England, Lord Campbell.
In America we have a few well written and instructive legal biographies,
among which ought especially to be named, Mr. Wheaton's Life of William
Pinkney, and Professor Parsons' interesting Memoir of his distinguished
father, Chief Justice Parsons. Mr. Binney, at the close of his honored and

honorable life, is paying the debt, which every man owes to his profession,
in animated spirit-stirring sketches of his great and good contemporaries.
How forcibly does this distinguished jurist illustrate the remark of Cicero in
his Treatise on Old Age: "Sed videtis, ut senectus non modo languida atque
iners non sit, verum etiam sit operosa, et semper agens aliquid et moliens;
tale scilicet, quod cujusque studium in superiore vita fuit." What a noble
example might be held up, in the life and character of Chief Justice
Marshall! His biography, while it will be the record of active patriotism and
humanity, will exhibit a course of arduous self-training, for the great
conflicts of opinion, in which it was his lot afterwards to appear, with so
much lustre. He had not the usual advantages of a collegiate education. The
war of the Revolution, in which his ardent love of country, and of the
principles of rational liberty, led him to enlist, and where he distinguished
himself in the field, materially interfered with, and retarded his earlier
professional studies; yet, the lofty eminence to which he attained in the
opinion of his compatriots, even of those who could not concur in some of
his views of the Constitution, the enduring monuments of his greatness in
the decisions of the Supreme Court of the United States, bespeak an
intellect of the very first order, mental power naturally vigorous, but
brought, by proper exercise, to a degree of strength that made it tower
above the general level of educated men. His opinions do not abound in
displays of learning. His simplicity, a character so conspicuous in all his
writings and actions—that first and highest characteristic of true greatness
—led him to say and do just what was necessary and proper to the purpose
in hand. Its reflected consequences on his own fame as a scholar, a
statesman, or a jurist, seem never once to have occurred to him. As a judge,
the Old World may be fairly challenged to produce his superior. His style is
a model—simple and masculine. His reasoning—direct, cogent,
demonstrative, advancing with a giant's pace and power, and yet withal so
easy evidently to him, as to show clearly, a mind in the constant habit of
such strong efforts. Though he filled for so many years the highest judicial
position in this country, how much was his walk like the quiet and
unobtrusive step of a private citizen, conscious of heavy responsibilities,
and anxious to fulfil them; but unaware that the eyes of a nation—of many
nations—were upon him! There was around him none of the glare, which
dazzles; but he was clothed in that pure mellow light of declining evening,
upon which we love to look. Where is the trust to society more sacred,

where are duties more important, or consequences more extended, for
individual or social weal or woe, than those which attach to the office he
held? How apt, and aptly said, is that prayer of Wolsey, when he is informed
of the promotion of Sir Thomas More to the place of Lord Chancellor:

"May he ... do justice,
For truth's sake and his conscience; that his bones,
When he has run his course, and sleeps in blessings,
May have a tomb of orphans' tears wept on him."

It is surely a just subject of national, as well as professional pride, that an
American lawyer can thus, pointing to the example of such a man as John
Marshall, hold up his character, his reputation, his usefulness, his
greatness, as incentives to high and honorable ambition; and especially, his
life of unblemished virtue, and single-hearted purity,—after all, his highest
praise, for, as old Shirley says,

"When our souls shall leave this dwelling,
The glory of one fair and virtuous action
Is above all the scutcheons on our tomb."

Is it possible that a being so fearfully and wonderfully made as man, and
animated by a spirit still more fearful and incomprehensible, was created
for the brief term of a few revolutions of the planet he lives on? Shall his
own physical and intellectual productions so long survive him? The massive
piles of Egypt have endured for thousands of years: fluted column and
sculptured architrave have stood for generations, monuments of his labor
and skill. A poem of Homer, an oration of Demosthenes, an ode of Horace,
a letter of Cicero, carry down to the remotest posterity the memorial of their
names. Men found empires, establish constitutions, promulgate codes of
laws; there have been Solons, Alexanders, Justinians, and Napoleons. There
have been those justly called Fathers of their country, and benefactors of
their race. Have they, too, sunk to become clods of the valley? The mind,
which can look so far before and after—can subdue to its mastery the
savages of the forests, and the fiercer elements of Nature—can stamp the
creation of its genius upon the living canvas, or the almost breathing,
speaking marble—can marshal the invisible vibrations of air into soul-
stirring or soul-subduing music—can pour forth an eloquence of words,

with magic power to lash the passions of many hearts into a raging
whirlwind, or command them with a "peace, be still"—can make a book, a
little book, which shall outlive pyramids and temples, cities and empires—
can perceive and love beauty, in all its forms, and above all, moral beauty,
and God, the infinite perfection of moral beauty,—no, this mind can never
die. Its moral progress must go on in an unending existence, of which its
life of fourscore years on earth is scarce the childhood. Let us beware then
of raising these objects of ambition, wealth, learning, honor, and influence,
worthy though they be, into an undue importance; nor in the too ardent
pursuit of what are only means, lose sight of the great end of our being.

APPENDIX.

No. I.
COURVOISIER'S CASE[59]

On Tuesday night, May 5th, 1840, Lord William Russell, infirm, deaf, and
aged, being in his seventy-third year, was murdered in his bed. He was a
widower, living at No. 14 Norfolk Street, Park Lane, London, a small
house, occupied by only himself and three servants,—Courvoisier, a young
Swiss valet, and two women, a cook and house-maid. The evidence was of
a character to show very clearly that the crime had been committed by some
one in the house; but, Courvoisier's behavior throughout had been that of an
innocent man. Two examinations of his trunk, by the officers of the police,
showed nothing suspicious; rewards having been offered by the government
and family of the deceased; for the detection of the criminal, a third
examination was made of Courvoisier's box, which resulted in the discovery
of a pair of white cotton gloves, two pocket handkerchiefs, and a shirt-front,
stained with blood. The prisoner's counsel went to the trial with a full
persuasion of his innocence, and conducted the cross-examination closely
and zealously, especially of Sarah Mancer, one of the female domestics,
with a view of showing that there was as much probability that the witness
or the other domestic was the criminal as the prisoner; and that the police,
incited by the hopes of the large rewards offered, had conspired to fasten
the suspicion unjustly on him. At the close of the first day's proceedings, the
prosecutors were placed unexpectedly in possession of a new and important
item of evidence: the discovery of the plate of the deceased, which was
missed, and that it had been left by the prisoner, at the place where it was
found, about a week, perhaps only a very few days, before the committing
of the murder. The parcel contained silver spoons, forks, a pair of gold
auricles, all unquestionably the property of the unfortunate nobleman; and
the only question remaining was, whether Courvoisier was the person who
had so left it. If he were, it would, of course, grievously for him, increase
the probabilities that it must have been he who subsequently committed the
murder, and with the object of plunder. On the ensuing morning, the person
who had made this discovery (Mrs. Piolaine, the wife of a Frenchman, who

kept a place of entertainment, called L'Hotel de Dieppe, in Leicester Place,
Leicester Square), was shown a number of prisoners in the prison-yard, one
of whom was Courvoisier, whom she instantly recognized as the person
who had left the plate with her, and also had formerly lived in her employ.
Courvoisier also suddenly recognized her, and with dismay. The immediate
effect of his panic was the confession of his guilt to his counsel at the bar of
the court, a few minutes afterwards, coupled with his desire, nevertheless,
to be defended to the utmost. His probable object was simply to prepare his
counsel against the forthcoming evidence. The prisoner was convicted, and
afterwards confessed his crime. Mr. Phillips's conduct of the defence was
criticized at the time, in the columns of the Examiner, but he suffered it to
pass in silence. In 1849, that periodical renewed the accusation originally
made, upon which the following correspondence appeared in the London
Times of Nov. 20th, 1849.

TO THE EDITOR OF THE "TIMES."
Sir,—I shall esteem it a great favor if you will allow the accompanying
documents to appear in the "Times." Its universal circulation affords me an
opportunity of annihilating a calumny recently revived, which has for nine
years harassed my friends far more than myself.
I am, &c.,
Charles Phillips.
39 Gordon Square.

Inner Temple, Nov. 14, 1849.

My dear Phillips,—It was with pain that I heard yesterday of an accusation
having been revived against you in the "Examiner" newspaper, respecting
alleged dishonorable and most unconscientious conduct on your part, when
defending Courvoisier against the charge of having murdered Lord William
Russell. Considering that you fill a responsible judicial office, and have to
leave behind you a name unsullied by any blot or stain, I think you ought to
lose no time in offering, as I believe you can truly do, a public and

peremptory contradiction to the allegations in question. The mere
circumstances of your having been twice promoted to judicial office by two
lord chancellors, Lord Lyndhurst and Lord Brougham, since the circulation
of the reports to which I am alluding, and after those reports had been called
to the attention of at least one of those noble and learned lords, is sufficient
evidence of the groundlessness of such reports.
Some time ago I was dining with Lord Denman, when I mentioned to him
the report in question. His lordship immediately stated that he had inquired
into the matter, and found the charge to be utterly unfounded; that he had
spoken on the subject to Mr. Baron Parke, who had sat on the Bench beside
Chief Justice Tindal, who tried Courvoisier, and that Baron Parke told him
he had, for reasons of his own, most carefully watched every word that you
uttered, and assured Lord Denman that your address was perfectly
unexceptionable, and that you made no such statements as were
subsequently attributed to you.
Lord Denman told me that I was at liberty to mention this fact to any one;
and expressed in noble and generous terms his concern at the existence of
such serious and unfounded imputations upon your character and honor.
Both Lord Denman and Baron Parke are men of as nice a sense of honor
and as high a degree of consciousness as it is possible to conceive; and I
think the testimony of two such distinguished judges ought to be publicly
known, to extinguish every kind of suspicion on the subject.
I write this letter to you spontaneously, and, hoping that you will forgive the
earnestness with which I entreat you to act upon my suggestion, believe me
ever yours sincerely,
Samuel Warren.
Mr. Commissioner Phillips.

39 Gordon Square, Nov. 20.

My dear Warren,—Your truly kind letter induces me to break the
contemptuous silence, with which for nine years I have treated the
calumnies, to which you allude. I am the more induced to this by the

representations of some valued friends, that many honorable minds begin to
believe the slander because of its repetition without receiving a
contradiction. It is with disgust and disdain, however, that even thus
solicited I stoop to notice inventions too abominable, I had hoped, for any
honest man to have believed. The conduct of Lord Denman is in every
respect characteristic of his noble nature. Too just to condemn without
proof, he investigates the facts, and defends the innocent. His deliberate
opinion is valuable indeed, because proceeding from one who is invaluable
himself. My judicial appointments by the noblemen you mention would
have entailed on them a fearful responsibility, had there been any truth in
the accusations of which they must have been cognizant. I had no interest
whatever with either of these chancellors, save that derived from their
knowledge of my character, and their observation of my conduct. It is now
five-and-twenty years ago since Lord Lyndhurst, when I had no friend here,
voluntarily tendered me his favor and his influence, and his kindness to me
remains to this day unabated. Of Lord Brougham, my ever warm and
devoted friend, I forbear to speak, because words cannot express my
affection or my gratitude. His friendship has soothed some affliction and
enhanced every pleasure, and while memory lasts will remain the proudest
of its recollections and the most precious of its treasures. This is no vain-
glorious vaunting. The unabated kindness of three of the greatest men, who
ever adorned the Bench, ought, in itself, to be a sufficient answer to my
traducers. Such men as these would scarcely have given their countenance
to one, who, if what were said of him were true, deserved their
condemnation. I am not disposed, however, though I might be well
warranted in doing so, to shelter myself under the authority of names, no
matter how illustrious. I give to each and all of these charges a solemn and
indignant contradiction, and I will now proceed to their refutation. The
charges are threefold, and I shall discuss them seriatim.
First, I am accused of having retained Courvoisier's brief after having heard
his confession. It is right that I should relate the manner of that confession,
as it has been somewhat misapprehended. Many suppose it was made to me
alone, and made in the prison. I never was in the prison since I was called to
the Bar, and but once before, being invited to see it by the then sheriffs. So
strict is this rule, that the late Mr. Fauntleroy solicited a consultation there
in vain with his other counsel and myself. It was on the second morning of

the trial, just before the judges entered, that Courvoisier, standing publicly
in front of the dock, solicited an interview with his counsel. My excellent
friend and colleague, Mr. Clarkson, and myself immediately approached
him. I beg of you to mark the presence of Mr. Clarkson, as it will become
very material presently. Up to this morning I believed most firmly in his
innocence, and so did many others as well as myself. "I have sent for you,
gentlemen," said he, "to tell you I committed the murder!" When I could
speak, which was not immediately, I said, "Of course then you are going to
plead guilty?"—"No, sir," was the reply, "I expect you to defend me to the
utmost." We returned to our seats. My position at this moment was, I
believe, without parallel in the annals of the profession. I at once came to
the resolution of abandoning the case, and so I told my colleague. He
strongly and urgently remonstrated against it, but in vain. At last he
suggested our obtaining the opinion of the learned judge, who was not
trying the cause, upon what he considered to be the professional etiquette
under circumstances so embarrassing. In this I very willingly acquiesced.
We obtained an interview, and Mr. Baron Parke requested to know
distinctly whether the prisoner insisted on my defending him, and, on
hearing that he did, said, I was bound to do so, and to use all fair arguments
arising on the evidence. I therefore retained the brief, and I contend for it,
that every argument I used was a fair commentary on the evidence, though
undoubtedly as strong as I could make them. I believe there is no difference
of opinion now in the profession that this course was right. It was not until
after eight hours' public exertion before the jury that the prisoner confessed;
and to have abandoned him then would have been virtually surrendering
him to death. This is my answer to the first charge.
I am accused, secondly, of having "appealed to Heaven as to my belief in
Courvoisier's innocence," after he had made me acquainted with his guilt. A
grievous accusation! But it is false as it is foul, and carries its own
refutation on its face. It is with difficulty I restrain the expression of my
indignation; but respect for my station forbids me to characterize this
slander as it deserves. It will not bear one moment's analysis. It is an utter
impossibility under the circumstances. What! appeal to Heaven for its
testimony to a lie, and not expect to be answered by its lightning? What!
make such an appeal, conscious that an honorable colleague sat beside me,
whose valued friendship I must have forever forfeited? But above all and

beyond all, and too monstrous for belief, would I have dared to utter that
falsehood in the very presence of the judge to whom, but the day before, I
had confided the reality! There, upon the Bench above me, sat that time-
honored man—that upright magistrate, pure as his ermine, "narrowly
watching" every word I said. Had I dared to make an appeal so horrible and
so impious—had I dared so to outrage his nature and my own conscience,
he would have started from his seat and withered me with a glance. No,
Warren, I never made such an appeal; it is a malignant untruth, and sure I
am, had the person who coined it but known what had previously occurred,
he never would have uttered from his libel mint so very clumsy and self-
proclaiming a counterfeit. So far for the verisimilitude of this-charge. But I
will not rest either on improbability, or argument, or even denial. I have a
better and a conclusive answer. The trial terminated on Saturday evening.
On Sunday I was shown in a newspaper the passage imputed to me. I took
the paper to court on Monday, and, in the aldermen's room, before all
assembled, after reading the paragraph aloud, I thus addressed the judges:
—"I take the very first opportunity which offers, my lords, of most
respectfully inquiring of you whether I ever used any such
expression?"—"You certainly did not, Phillips," was the reply of the late
lamented Lord Chief Justice, "and I will be your vouchee whenever you
choose to call me,"—"And I," said Mr. Baron Parke, happily still spared to
us, "had a reason, which the Lord Chief Justice did not know, for watching
you narrowly, and he will remember my saying to him, when you sat down,
'Brother Tindal, did you observe how carefully Phillips abstained from
giving any personal opinion in the case?' To this the learned Chief Justice
instantly assented." This is my answer to the second charge.
Thirdly, and lastly, I am accused of having endeavored to cast upon the
female servants the guilt, which I knew was attributable to Courvoisier. You
will observe, of course, that the gravamen of this consists in my having
done so after the confession. The answer to this is obvious. Courvoisier did
not confess till Friday: the cross-examination took place the day before, and
so far, therefore, the accusation is disposed of. But it may be said I did so in
my address to the jury. Before refuting this let me observe upon the
disheartening circumstances under which that address was delivered. At the
close of the, to me, most wretched day on which the confession was made,
the prisoner sent me this astounding message by his solicitor: "Tell Mr.

Phillips, my counsel, that I consider he has my life in his hands." My
answer was, that as he must be present himself, he would have an
opportunity of seeing whether I deserted him or not. I was to speak on the
next morning. But what a night preceded it! Fevered and horror-stricken, I
could find no repose. If I slumbered for a moment, the murderer's form
arose before me, scaring sleep away, now muttering his awful crime, and
now shrieking to me to save his life! I did try to save it. I did everything to
save it, except that which is imputed to me, but that I did not, and I will
prove it. I have since pondered much upon this subject, and I am satisfied
that my original impression was erroneous. I had no right to throw up my
brief, and turn traitor to the wretch, wretch though he was, who had
confided in me. The counsel for a prisoner has no option. The moment he
accepts his brief, every faculty he possesses becomes his client's property. It
is an implied contract between him and the man who trusts him. Out of the
profession this may be a moot point, but it was asserted and acted on by two
illustrious advocates of our own day, even to the confronting of a king, and,
to the regal honor be it spoken, these dauntless men were afterwards
promoted to the highest dignities.
You will ask me here whether I contend on this principle for the right of
doing that of which I am accused, namely, casting the guilt upon the
innocent? I do no such thing; and I deny the imputation altogether. You will
still bear in mind what I have said before, that I scarcely could have dared
to do so under the eye of Baron Parke and in the presence of Mr. Clarkson.
To act so, I must have been insane. But to set this matter at rest, I have
referred to my address as reported in the "Times"—a journal the fidelity of
whose reports was never questioned. You will be amazed to hear that I not
only did not do that of which I am accused; but that I did the very reverse.
Fearing that, nervous and unstrung as I was, I might do any injustice in the
course of a lengthened speech, by even an ambiguous expression, I find
these words reported in the "Times,"—"Mr. Phillips said the prosecutors
were bound to prove the guilt of the prisoner, not by inference, by
reasoning, by such subtile and refined ingenuity as had been used, but by
downright, clear, open, palpable demonstration. How did they seek to do
this? What said Mr. Adolphus and his witness, Sarah Mancer? And here he
would beg the jury not to suppose for a moment, in the course of the
narrative with which he must trouble them, that he meant to cast the crime

upon either of the female servants. It was not at all necessary to his case to
do so. It was neither his interest, his duty, nor his policy, to do so. God
forbid that any breath of his should send tainted into the world persons
depending for their subsistence on their character." Surely this ought to be
sufficient. I cannot allude, however, to this giant of the press, whose might
can make or unmake a reputation, without gratefully acknowledging that it
never lent its great circulation to these libels. It had too much justice. The
"Morning Chronicle," the "Morning Herald," and the "Morning Post," the
only journals to which I have access, fully corroborated the "Times," if,
indeed, such a journal needed corroboration. The "Chronicle" runs thus:
—"In the first place, says my friend Mr. Adolphus, and says his witness
Sarah Mancer—and here I beg to do an act of justice, and to assure you that
I do not for a moment mean to suggest in the whole course of my narrative
that this crime may have been committed by the female servants of the
deceased nobleman." "The Morning Post" runs thus: "Mr. Adolphus called a
witness, Sarah Mancer. But let me do myself justice, and others justice, by
now stating, that in the whole course of my narrative with which I must
trouble you, I beg you would not suppose that I am in the least degree
seeking to cast the crime upon any of the witnesses. God forbid that any
breath of mine should send persons depending on the public for subsistence
into the world with a tainted character." I find the "Morning Herald"
reporting me as follows: "Mr. Adolphus called a witness named Sarah
Mancer. But let me do myself justice and others justice by now stating that
in the whole course of the narrative with which I must trouble you, I must
beg that you will not suppose that I am in the least degree seeking to cast
blame upon any of the witnesses." Can any disclaimer be more complete?
And yet, in the face of this, for nine successive years has this most
unscrupulous of slanderers reiterated his charge. Not quite three weeks ago
he recurs to it in these terms: "How much worse was the attempt of Mr.
Phillips to throw the suspicion of the murder of Lord William Russell on the
innocent female servants, in order to procure the acquittal of his client
Courvoisier, of whose guilt he was cognizant?" I have read with care the
whole report in the "Times" of that three hours' speech, and I do not find a
passage to give this charge countenance. But surely, surely, in the agitated
state in which I was, had even an ambiguous expression dropped from me,
the above broad disclaimer would have been its efficient antidote.

Such is my answer to the last charge; and, come what will, it shall be my
final answer. No envenomed reiteration, no popular delusion, no
importunity of friendship, shall ever draw from me another syllable. I shall
remain in future, as I have been heretofore, auditor tantum. You know well
how strenuously and how repeatedly you pressed me to my vindication,
especially after Lord Denman's important conversation with you, and you
know the stern disdain with which I dissented. The mens conscia recti, a
thorough contempt for my traducer, the belief that truth would in the end
prevail, and a self-humiliation at stooping to a defence, amply sustained me
amid the almost national outcry which calumny had created. Relying
doubtless upon this, month after month, for nine successive years, my
accuser has iterated and reiterated his libels in terms so gross, so vulgar, and
so disgraceful, that my most valued friends thought it my duty to them
publicly to refute them. To that consideration, and to that alone, I have
yielded; in deference to theirs, relinquishing my own opinions. If they
suppose, however, that slander, because answered, will be silenced, they
will find themselves mistaken.

Destroy the web of sophistry—in vain—
The creature's at his dirty work again.

No, no, my dear friend, invention is a libeller's exhaustless capital, and
refutation but supplies the food on which he lives. He may, however, pursue
his vocation undisturbed by me. His libels and my answer are now before
the world, and I leave them to the judgment of all honorable men.
C. Phillips.

No. II.
COURSE OF LEGAL STUDY[60]

Non multa sed multum, is the cardinal maxim by which the student of law
should be governed in his readings; at the commencement of his studies—in
the office of his legal preceptor, Repetition—Repetition—Repetition.
Blackstone and Kent, should be read—and read again and again. These
elementary works, with some others of an immediately practical cast—
Tidd's Practice, Stephen's Pleading, Greenleaf's Evidence, Leigh's Nisi
Prius, Mitford's Equity Pleading—well conned, make up the best part of
office reading. Of course the Acts of Assembly should be gone over and
over again. I do not say that this is all. The plan of reading, which I am
about to recommend, may be begun in the office. Much will depend upon,
what may be termed, the mental temperament of the student himself, which
no one but the immediate preceptor can observe; and he will be governed
accordingly in the selection of works to be placed in his hands. No lawyer
does his duty, who does not frequently examine his student, not merely as a
necessary means of exciting him to attention, and application; but in order
to acquire such an acquaintance with the character of his pupil's mind—its
quickness or slowness—its concentrativeness or discursiveness—as to be
able to form a judgment whether he requires the curb or the spur. It is an
inestimable advantage to a young man to have a judicious and experienced
friend watching anxiously his progress, and able to direct him, when, if left
to himself, he must wander in darkness and danger. "There be two things,"
says Lord Coke, "to be avoided by him as enemies to learning, præpostera
lectio and præpropera praxis." Co. Litt. 70 b.
I prefer presenting a certain order of subjects to be pursued; observing,
however, that it may be somewhat irksome to pursue any one branch for too
long a period unvaried. When that is found to be the case, the last five heads
may be adopted as collateral studies, and pursued simultaneously with the
first three.

These heads or branches are—1. Real Estate and Equity. 2. Practice,
Pleading, and Evidence. 3. Crime and Forfeitures. 4. Natural and
International law. 5. Constitutional Law. 6. Civil Law. 7. Persons and
Personal Property. 8. The Law of Executors and Administrators.

I. Real Estate and Equity.

As introductory to this head, Lord Hale's History of the Common Law may
be perused with advantage. It was perhaps a mere sketch, intended to be
afterwards filled up and completed. Still, however, it is a work of authority,
as indeed is everything which proceeded from the pen of its distinguished
author. He is correct and accurate to a remarkable degree. Reeves' History
of the English Law is a full and comprehensive history of the English Law,
accurate and judicious as well as full. Lord Mansfield is said to have
advised its author in regard to its plan and execution. In this work the
student is presented with all that is necessary that he should know of the
earliest law-books, Bracton, Glanville, and Fleta, carefully collected and
presented. The history of the law is separately traced under the reign of each
king, and it may be of advantage to read at the same time some good history
or histories of England parallel with the work. "Reeves' History of the
English Law," says Chancellor Kent, "contains the best account that we
have of the progress of the law, from the time of the Saxons to the reign of
Elizabeth. It covers the whole ground of the law included in the old
abridgments, and it is a work deserving of the highest commendation. I am
at a loss which most to admire, the full and accurate learning, which it
contains, or the neat, perspicuous, and sometimes elegant style, in which
that learning is conveyed." 1 Comm. 508.
Dalrymple's Essay towards a general History of Feudal Property in Great
Britain, is a brief but learned and philosophical treatise, which may be
followed by Sullivan's Lectures on Feudal Law, a work copious in detail
and exhibiting ably, among other topics, the influence of the feudal system
upon the Modern Law of Tenures. Sir Martin Wright's Introduction to the
Law of Tenures is one of the most accurate and profound of the essays on
this topic; and is worthy of the most attentive study. Craig de Feudis was
thought by Lord Mansfield much preferable to any judicial work which
England had then produced. With these legal treatises on the feudal system

may be read with great advantage, simultaneously, Robertson's History of
Charles V, and Hallam's History of the Middle Ages.
Sir Henry Finch's Law, or Nomotechnia, as he entitled it, may be taken up
in this connection. It is said that until the publication of Blackstone's
Commentaries, it was regarded as the best elementary book to be placed in
the hands of law students; and we have the authority of Sir William
Blackstone for saying that his method was greatly superior to that in all the
treatises that were then extant: Blackstone's Analysis, Preface, 6. "His text,"
says Chancellor Kent, "was weighty, concise, and nervous, and his
illustrations apposite, clear, and authentic;" though he adds, "But the
abolition of the feudal tenures and the disuse of real actions, have rendered
half of his work obsolete," 1 Comm. 509; an objection, in the view we take
of legal education, which should rather recommend the work than
otherwise.
At the same time with Finch take Doctor and Student by St. Germain—a
little book which is replete with sound law, and has always been cited with
approbation as an authority.
The Prefaces to the several volumes of Lord Coke's Reports may be read
now with great advantage. They contain much interesting information, and
strongly impregnated as they are with Lord Coke's abundant learning and
love of the law as a science and profession, they form an admirable
introduction to The First Institute, or Lord Coke's Commentary upon
Littleton's Tenures. It would be advisable, I think, to read first in order the
sections of Littleton's Tenures, the original treatise upon which The Institute
was a commentary. After that, no time or pains should be spared to master
completely The First Institute. If the course now prescribed has been
followed, the student will not require to be reminded, that even those parts,
which seem to relate to obsolete heads of the law, ought to be read and
understood. "There is not," says Mr. Butler, "in the whole of this golden
book, a single line which the student will not in his professional career, find
on more than one occasion eminently useful." There may be some
extravagance in this assertion; but we may nevertheless agree with Mr.
Ritso that "there is no knowledge of this kind, which may not, sooner or
later, be in fresh demand; there is no length of time or change of
circumstances, that can entirely defeat its operation or destroy its intrinsic

authority. Like the old specie withdrawn from circulation upon the
introduction of a new coinage, it has always its inherent value; the ore is
still sterling and may be moulded into modern currency." The opinions of
American lawyers confirm this conclusion. It is well known that C. J.
Parsons was distinguished for his familiarity with the pages of The Institute.
It was Mr. Pinkney's favorite law book; and "his arguments at the Bar," says
his biographer, Mr. Wheaton, "abounded with perpetual recurrences to the
principles and analysis drawn from this rich mine of common law learning."
Mr. Hoffman, in his Course of Legal Study, has also borne his testimony to
its importance to the American practitioner. Chancellor Kent seems, as I
have intimated in the note, to lean rather against Coke upon Littleton, as an
Institute of Legal Education, although he acknowledges its value and
authority as a book of reference.
It appears to me that after Coke, Preston's Elementary Treatise on Estates
may be read with advantage. He is perhaps unnecessarily diffuse and
tautological; but he enters largely into the reasons of the abstruse doctrines
of which he treats, and his work is calculated to lead the student to inquire
more earnestly into the philosophy of the science. Fearne's Essay on the
Learning of Contingent Remainders, should then be well studied. If no
other book be read over a second time, it must not be omitted as to this.
This volume is occupied in the discussion of points of great difficulty and
abstruseness; yet the style is remarkable for clearness and perspicuity, and
the reasoning is logical and irresistible. A taste or otherwise, for this book,
will test the student's real progress. After Fearne, take up Sheppard's
Touchstone of Common Assurances—a work generally supposed to have
been written by Mr. Justice Doddridge, and not by William Sheppard,
whose name it bears. It is a most valuable book, one of the most esteemed
and authoritative of the old treatises. There is an edition by Mr. Preston, but
I do not recommend it. Had he annotated in the common way, his labors
and references would no doubt have increased the value of the book; but he
has taken liberties with the text,—subdividing it, occasionally changing the
phraseology, and inserting matter of his own: a course of proceeding in
regard to any work, except a digest or dictionary, to which I cannot be
reconciled. The Touchstone may be followed by Preston on Abstracts of
Title, and Preston's Treatise on Conveyancing.

I think that at this period, as a necessary introduction to the succeeding
studies, some works on Equity Jurisprudence should be taken in hand; as
the Treatise on Equity of which Henry Ballow is the reputed author. It is the
text of Fonblanque's Equity. It had better be read by itself. Disquisitional
notes of great length only confuse and confound the student; and Mr.
Marvin has well said that Fonblanque's Equity "finally expired under the
weight of its own notes." To this add Jeremy's Treatise on Equity, and
Story's Commentaries on Equity Jurisprudence. The student may then read
with advantage, Powell on Mortgages, with Coventry's Notes. It is to be
lamented that Mr. Coventry did not prepare an original work, instead of
overwhelming the text of Powell with his learned and valuable labors.
Chancellor Kent has remarked, that between the English and American
editors it is "somewhat difficult for the reader to know, without
considerable difficulty, upon what ground he stands." Like the treatise on
Equity, it has been nearly choked to death in the embraces of its annotators.
Bacon's Reading upon the Statute of Uses, is a very profound treatise on
that subject, though evidently left by its great author in an unfinished state.
Sanders on Uses and Trusts, is a very comprehensive and learned work, and
the subject, which may be styled the Metaphysics of the Law, requires close
attention. Hill on Trustees, is a practical treatise, which may here be read
with advantage, as also Lewis on Perpetuities. Sugden on Powers, has been
said to be second to no elementary law book. It is a masterly elucidation of
the subtle doctrines of the law on the subject of Powers, and is held in the
highest estimation. It will perhaps be better appreciated and understood, if
with it, or after it, is taken up Chance's Treatise on Powers,—a work more
diffuse than Mr. Sugden's, and which examines, controverts, and discusses
at large many of his positions. Sugden on Vendors and Purchasers may then
follow.
The titles on Leases and Terms for Years, and Rent, in Bacon's Abridgment,
should be studied. These were the works of Chief Baron Gilbert. After this,
Woodfall on Landlord and Tenant.
Roscoe's Treatise on the Law of Actions relating to Real Property, may be
read as a convenient introduction to Cruise on Fines and Recoveries, and
Pigott on Common Recoveries.

To these, in conclusion of this, by far the most important and fundamental
branch of legal studies, may be added, Powell's Essay on the Learning of
Devises, and Jarman on Wills.
It will be remarked, that I have not set down in order, any Report Books; it
is not that I undervalue that kind of study. It appears to me that in his
regular reading, the student should constantly resort to and examine the
principal cases referred to and commented upon by his authors. In this way,
he will read them more intelligently, and they will be better impressed on
his memory. Some reports may be read through continuously; such are
Plowden, Hobart, Vernon, and I certainly think, Johnson's Chancery Reports
should be thus read. Smith's Leading Cases is an excellent reading-book of
this kind. The student of Pennsylvania Law will do well not to omit
Binney's Reports. But I assign no particular place to this kind of study,
because I think it may be taken up and laid aside at intervals, according to
the bent of the student's inclination. When, in any particular part of his
course, he finds his regular reading drags heavily—he has become fagged
and tired of a particular subject—let him turn aside for a week or two, to
some approved and standard Report Book; it will be useful reading, and he
will be able to return refreshed to his proper course.
It would extend this Appendix too much, if I were to go over the remaining
parts of the prescribed plan, with the same particularity as I have this first
and most important branch. It will be sufficient to indicate merely the
books, and the order in which they may be most profitably read, under each
division.

II. Practice, Pleading, and Evidence.

The Introduction to Crompton's Practice gives a full account of the
jurisdiction of the courts, and the steps by which it was arrived at. This
book is sometimes called Sellon's Practice, having been arranged by Mr.
Sellon. The fourth part of The Institutes of Lord Coke. Tidd's Practice.
Stephen on Pleading. Saunders' Reports, with Notes by Williams. Broom's
Parties to Actions. Greenleaf on Evidence. Selwyn's Nisi Prius. Leigh's Nisi
Prius. Mitford's Pleading in Equity. Story's Equity Pleading. Barton's

Historical Treatise of a Suit in Equity. Newland's Chancery Practice.
Gresley on Evidence in Equity.

III. Crimes and Forfeitures.

Hale's History of the Pleas of the Crown. Foster's Crown Law. Yorke's
Considerations on the Law of Forfeiture for High Treason. The third part of
The Institutes of Lord Coke. Russell on Crimes and Misdemeanors. Chitty
on Criminal Law.

IV. Natural and International Law.

Burlamaqui's Natural and Political Law. Grotius de Jure Belli et Pacis.
Rutherford's Institutes. Vattel's Law of Nations. Bynkershoek Questiones
Publici Juris. Wicquefort's Ambassador. Bynkershoek de Foro Legatorum.
McIntosh's Discourse on the Study of the Law of Nature and Nations.
Wheaton's History of International Law. Wheaton's International Law.
Robinson's Admiralty Reports. Cases in the Supreme Court of the United
States.

V. Constitutional Law.

The second part of Lord Coke's Institutes. Hallam's Constitutional History
of England. Wynne's Eunomus. De Lolme on the English Constitution, with
Stephens' Introduction and Notes. The Federalist. Rawle on the
Constitution. Story on the Constitution. All the cases decided in the
Supreme Court of the United States, on constitutional questions, to be read
methodically, as far as possible.

VI. Civil Law.

I consider some study of this head as a necessary introduction to a thorough
course on the subjects of Persons and Personal Property, and the topic,

which is so important in the United States, of the Conflict of Laws.
Butler's Horæ Juridicæ. Gibbon's History of the Decline and Fall, chap. 44.
Justinian's Institutes. Savigny's Traité de Droit Romain. Savigny's Histoire
du Droit Romain au Moyen Age. Taylor's Elements of the Civil Law.
Mackeldy's Compendium. Colquhoun's Summary of the Roman Civil Law.
Domat's Civil Law.

VII. Persons and Personal Property.

Reeves on the Domestic Relations. Bingham's Law of Infancy and
Coverture. Roper on Husband and Wife. Angel and Ames on Corporations.
Les Œuvres de Pothier. Smith on Contracts. Story on Bailments. Jones on
Bailments. Story on Partnership. Byles on Bills. Story on Promissory Notes.
Abbott on Shipping. Duer on Insurance. Emerigon Traité des Assurances.
Boulay-Paty Cour de Droit Commercial. Story on the Conflict of Laws.

VIII. Executors and Administrators.

Roper on Legacies. Toller on Executors. Williams on Executors. The Law's
Disposal, by Lovelass.
I believe that the course that I have thus sketched, if steadily and
laboriously pursued, will make a very thorough lawyer. There is certainly
nothing in the plan beyond the reach of any young man, with ordinary
industry and application, in a period of from five to seven years, with a
considerable allowance for the interruptions of business and relaxation. One
thing is certain,—there is no royal road to Law, any more than there is to
Geometry. The fruits of study cannot be gathered without its toil. It seems
the order of Providence that there should be nothing really valuable in the
world not gained by labor, pain, care, or anxiety. In the law, a young man
must be the architect of his own character, as well as of his own fortune.
"The profession of the law," says Mr. Ritso, "is that, of all others, which
imposes the most extensive obligations upon those who have had the
confidence to make choice of it; and indeed there is no other path of life in
which the unassumed superiority of individual merit is more conspicuously

distinguished according to the respective abilities of the parties. The laurels
that grow within these precincts are to be gathered with no vulgar hands;
they resist the unhallowed grasp, like the golden branch with which the hero
of the Æneid threw open the adamantine gates that led to Elysium."

No. III.
THE ENGLISH BAR.

There are three orders of men at the English Bar: 1. Attorneys, or Solicitors
in Chancery. 2. Barristers; and 3. Serjeants.
1. Attorneys and Solicitors.—Acts of Parliament have been made for the
regulation of this class. The Stat. 6 & 7 Vict. c. 73, consolidating and
amending several of the laws relating to attorneys and solicitors, prescribes
the conditions of admission as an attorney, the time and mode of their
service under articles; and the oaths to be administered to them; and
authorizes the Judges of the courts of the common law, and the Master of
the Rolls to appoint examiners to examine the fitness and capacity of all
persons applying to be admitted as attorneys or solicitors; and the
certificate, either of the common law or equity examiners, will be sufficient
to entitle a person so examined to admission in all the courts, examination
by both not being necessary. 3 Stewart's Blackst. 29.
2. Barristers.—The proper legal denomination of this class is apprentices,
being the first degree in the law conferred by the inns of court. Spelman
defines apprentice, tyro, discipulus, novitius in aliqua facultate. This was
probably the meaning of the term primarily; but as early as the reign of
Edward I, it was employed to denote counsel below the state and degree of
serjeant at law; one degree corresponding to that of bachelor, and the other
to that of doctor, in the universities (Pearce's History of the Inns of Court,
28). Lord Coke informs us, however, that this degree was anciently
preferred to that of serjeant (2 Inst. 214). They were termed apprenticii ad
legem, or ad barras; and hence arose the cognomen of barristers. A
barrister must have kept twelve terms, i. e., been three years a member of an
inn of court, before he can be called to the Bar. After a member of an inn of
court has kept twelve terms, he may, without being called, obtain
permission to practice under the Bar. This class of practitioners are called
special pleaders or equity draftsmen (according as they prepare pleadings in
the common law or equity courts), or conveyancers, who prepare deeds. 3

Stewart's Blackst. 26, note. Those who are regularly called, however, may
take upon them the causes of all suitors. Such of the barristers as have a
patent of precedence, as king's counsel, sit within the Bar, with the
serjeants; all others are called utter or outer barristers.
3. Serjeants at law.—Servientes ad legem, or serjeant-countors. The coif or
covering to the head worn by this order has also given a denomination to
them. There exists some differences of opinion among judicial antiquarians
as to the origin of the coif. It is supposed by some to have been invented
about the time of Henry III, for the purpose of concealing the clerical
tonsure, and thus disguising those renegade clerks, who were desirous of
eluding the canon, restraining the clergy from practising as counsel in the
secular courts. Hortensius, 349. By others it is referred to a much earlier
period, when the practice in the higher courts was monopolized by the
clergy, and those who were not in orders invented the coif to conceal the
want of clerical tonsure. 1 Campbell's Lives of the Chief Justices, 85, note.
There are, indeed, several circumstances to remind us of the ecclesiastical
origin of our profession in England. The terms—on the festival of St. Hilary
(Bishop of Poictiers, in France, who flourished in the fourth century);
Easter; the Holy Trinity; and of the blessed Michael, the Archangel;—the
habits of the judges, their appearance in court in scarlet, purple, or black, at
particular seasons—the use of the word brother to denote serjeant, and laity
to distinguish the people at large from the profession—the coif of the
serjeants—the bands worn by judges, serjeants, and counsel, and the gown
and hood of graduates of the inns of court,—many of such circumstances
raise a strong presumption that the legal university was founded before the
time of the enactment of the canons in the reign of King Henry III,
compelling the clergy to abandon the practice of the law in the secular
courts (Pearce's History, 22). Nulles clericus nisi causidicus, was the
character given of the clergy, soon after the Conquest, by William of
Malmsbury. The judges, therefore, were usually created out of the sacred
order, as was likewise the case among the Normans; and all the inferior
offices were supplied by the lower clergy, which has occasioned their
successors to be styled clerks to this day (1 Bl. Com. 17). The livings in the
gift of the Chancellor were originally intended as a provision for them, and
an order was made in Parliament, 4 Edw. III, that "the Chancellor should
give the livings in his gift, rated at twenty marks and under, to the King's

clerks in Chancery, the Exchequer, and the two Benches, according to
usage, and to none others." 1 Campbell's Lives of the Chancellors, 170,
note.
In the time of Fortescue, sixteen years' continuance in the study of the law
was the period of time considered a necessary qualification in candidates
for the coif. There seems, however, never to have been a regulation to that
effect; and it is certain that persons have often been advanced to this degree
before that time. By the common law no one can be appointed a judge of
the superior courts, who has not attained the degree of the coif; which
degree can only be conferred on a barrister of one of the four inns of court.
As soon as any member of an inn of court is raised by royal writ to the
state, degree, and dignity of a serjeant-at-law, he ceases to be a member of
the society. He removes to a new hall, and appears for the future in the inn
of court as a guest (Pearce, 52).
The most valuable privilege formerly enjoyed by the serjeants (who,
besides the judges, were limited to fifteen in number), was the monopoly of
the practice in the Court of Common Pleas. A bill was introduced into
Parliament in the year 1755; for the purpose of destroying this monopoly;
but it did not pass. In 1834, a warrant under the sign manual of the Crown
was directed to the Judges of the Common Pleas, commanding them to
open that court to the Bar at large, on the ground that it would tend to the
general dispatch of business. This order was received, and the court acted
accordingly. But in 1839 the matter was brought before the court by the
serjeants, when it was decided that the order was illegal; Tindal, C. J.,
declaring that, "from time immemorial, the serjeants have enjoyed the
exclusive privilege of practising, pleading; and audience in the Court of
Common Pleas. Immemorial enjoyment is the most solid of all titles; and
we think the warrant of the Crown can no more deprive the serjeant, who
holds an immemorial office, of the benefits and privileges which belong to
it, than it could alter the administration of the law within the court itself."
(10 Bingh. 571; 6 Bingh. N. C. 187, 232, 235.) However, the Statute 9 & 10
Vict. c. 54, has since extended to all barristers the privileges of serjeants in
the Court of Common Pleas.

FOOTNOTES:
[1] This oath seems first to have been prescribed by the Act of Assembly, passed
August 22d, 1752: "An act for regulating and establishing fees." (1 Smith's
Laws, 218.) It has been copied into the revised Act of 14th April, 1834, s. 69
(Pamphlet Laws, 354), with the addition of the clause to "support the
Constitution of the United States, and the Constitution of this Commonwealth."
In England, by the Stat. 4 Henry IV, c. 18 (A. D. 1402), it was provided, "that all
attorneys shall be examined by the Justices, and by their discretion, their names
put in the roll, and they that be good and virtuous, and of good fame, shall be
received, and sworn well and truly to serve in their offices, and especially that
they make no suit in a foreign country." The present oath or affirmation is, that
he "will truly and honestly demean himself in the practice of an attorney,
according to the best of his knowledge and ability." Stat. 2 Geo. II, c. 23 (A. D.
1729); Stat. 6 & 7 Vict. c. 73. The qualification of a sergeant-at-law, is given at
large in 2 Inst. 213; and in the valuable old book, "The Mirror of Justices," chap.
2, sec. 5, it is said that "every countor is chargeable by the oath, that he shall do
no wrong nor falsity, contrary to his knowledge, but shall plead for his client the
best he can, according to his understanding."
[2] Hurst's case, 1 Levins, 72; 1 Sid. 94, 151; Raym. 56, 94; 1 Keb. 349, 354,
387.
[3] See Austin's case, 5 Rawle, 203. "An attorney at law," says C. J. Gibson, "is
an officer of the court. The terms of the oath, exacted of him at his admission to
the bar, prove him to be so;" "you shall behave yourself in your office of
attorney," &c. Again: it is declared in the Constitution, Article 1st, sec. 18 (Art.
1, sec. 19, of the amended Constitution of 1838), that "no member of Congress,
or other person holding any office (except attorney at law, and in the militia),
shall be a member of either House," &c., which is a direct constitutional
recognition. Prior to the Act of 14th April, 1834, which expressly required from
them an oath to support the Constitution of the United States and the
Constitution of the Commonwealth of Pennsylvania, attorneys at law were
invariably held to be within the provisions of Art. 6, sect. 3, of the Constitution
of the United States, and of Art. 8, of the Constitution of Pennsylvania, requiring
all officers, executive and judicial, to take the oath to support those constitutions
respectively. In Wood's case (1 Hopkins, 6), solicitors in chancery were held to
be officers, within the meaning of a similar clause in the Constitution of New
York. "The admission of an attorney, solicitor, or counsellor," says the opinion in
that case, "is a general appointment to conduct causes before the courts: this
station, thus conferred by public authority, has its peculiar powers, privileges,
and duties, and thus becomes an office in the administration of justice." Leigh's
case (1 Munford, 468), in which it was held, that attorneys are not officers,
within the meaning of the statute of Virginia, requiring all persons holding any
office, or place, under the commonwealth, to take an oath against duelling, does
not perhaps conflict with this view. The case of Byrne's Admr's v. Stewart's
Admr's (3 Desaus. 478), may, however, be found upon examination somewhat at
variance—not the decision itself, but the views expressed by Chancellor Watres
in his opinion. The case simply decided what would seem unquestionable, that

the legislature had a right to prohibit any public officer, judicial or otherwise,
from practising as an attorney or solicitor. The Chancellor said, "He (a solicitor)
can he considered in no other light than that of a private agent for the citizens of
the country, who may employ him to do their legal business in the courts; and
although the law requires of him certain qualifications, and he receives a license
from the judges, yet his office is no more a public one, than would be any other
profession or trade, which the legislature might choose to subject to similar
regulations, and which is the practice in many other countries. It cannot be
doubted, that a man's trade or profession is his property; and if a law should be
passed avowedly for the purpose of restraining any member of this bar, who was
not a public officer, from exercising his profession, I should declare such law
void." This is to assume high ground; but the idea that a man's profession or
trade cannot be constitutionally interfered with by legislative enactments, seems
scarcely tenable, and especially, so far as the profession of the law is concerned,
in view of the absolute power with which every court is clothed, both as to the
admission of their attorneys, and forejudging or striking them from the roll. Act
of 14th April, 1834, s. 73 (Pamphlet Laws, 354). Courts of record and of general
jurisdiction, are vested with exclusive power to regulate the conduct of their own
officers, and in this respect their decisions are put on the same footing with that
numerous class of cases, which is wisely confided to the legal discretion and
judgment of the court, having jurisdiction over the subject-matter.
Commonwealth v. The Judges, 5 Watts & Serg. 272; Ex parte Burr, 9 Wheat.
531; Ex parte Brown, 1 Howard (Miss.) Rep. 306; Perry v. State, 3 Iowa, 550; In
the matter of Wills, 1 Mann, 392. "The power is one which ought to be exercised
with great caution, but which is, we think, incidental to all courts, and necessary
for the preservation of decorum and for the respectability of the profession."
Marshall C. J. 9 Wheat. 531.
[4] Per Gibson, C. J., in Austin's case, 5 Rawle, 204.
[5] The exact weight of one hundred silver dollars of the old coinage is 85.9375
ounces; of the new coinage, 80 ounces.
[6] Ex parte Carter, 1 Philada. Rep. 507. Blaike's Lessee v. Chambers, 1 Serg. &
Rawle, 169.
[7] Court and juries have their respective spheres assigned to them, within which
each is to act and move, without encroaching upon the jurisdiction or province
of the other. In order, then, that jurors as well as others may know that the
direction and decision of the court, on any question of law arising in the course
of the trial of an issue of fact, is not to be disregarded, and that a verdict given
against such direction, whatever it may be, can never avail anything, unless it be
to occasion additional delay, trouble, and expense to the parties, as also to the
public, the course of the court is to set the verdict aside, and to order a new trial.
And a court, from whose decisions on questions of law, an appeal lies, by writ of
error or otherwise, ought never to depart from this course; otherwise the party
against whom the verdict is given loses the benefit of such appeal, and of having
the question decided by the Appellate Court, which would be a most unjust and
illegal deprivation of his right. Per Kennedy, J., in Flemming v. Marine Ins. Co.
4 Whart. 67. After two concurring verdicts against the direction of the court in
point of law, a new trial will still be awarded. Commissioners of Berks County v.
Ross, 3 Binn. 520. "Principles the most firmly established might be overturned,

because a second jury were obstinate and rash enough to persevere in the errors
of the first, in a matter confessed by all to be properly within the jurisdiction of
the court; I mean the construction of the law arising from undisputed facts." Per
Tilghman, C. J., Ibid. 524. It is not necessary to refer to the numerous cases, both
in the English and American courts, which accord with these principles. A
judicious selection of the leading ones is to be found in the note to 1 Wharton's
Troubat & Haly, 529. The text and the note are confined, of course, to civil
cases.
[8] Burnet's Life of Sir Matthew Hale, 72.
[9] An attorney is not answerable for every error or mistake; he ought not to be
liable, in cases of reasonable doubt. Pitt v. Yalden, 4 Burrows, 2060. He shall be
protected, when he acts with good faith, and to the best of his skill and
knowledge. Gilbert v. Williams, 8 Mass. 57. The want of ordinary care and skill
in such a person is gross negligence. Holmes v. Peck, 1 Rhode Island, Rep. 245;
Cox v. Sullivan, 7 Georgia, 144; Pennington v. Yell, 6 Engl. 212. As between the
client and the attorney, the responsibility of the latter is as great and as strict here
as in any country when want of good faith or attention to the cause is alleged;
but in the exercise of the discretionary power usually confided in this country,
and especially when the client resides at a great distance, an attorney ought not
to be held liable where he has acted honestly and in a way he thought was for the
interest of his client. Lynch v. The Commonwealth, 16 Serg. & Rawle, 368;
Stakely v. Robison, 10 Casey, 317. When, however, an attorney disobeys the
lawful instructions of his client, and a loss ensues, for that loss the attorney is
responsible. Gilbert v. Williams, 8 Mass. 57. If the holder of a note place it in the
hands of an attorney-at-law, with instructions to bring suit upon it, and the
attorney, acting under the honest impression that he would best promote the
interests of his client by not bringing suit immediately, omits to do so, and the
money is afterwards lost by the insolvency of the maker, the attorney is liable in
an action against him; and the measure of damages is what might have been
recovered from the maker of the note, if suit had been brought when the note
was placed in the hands of the attorney for collection. Cox v. Livingston, 2
Watts. & Serg. 103; Wilcox v. Plummer, 4 Peters, 172. But a client has no right
to control his attorney in the due and orderly conduct of a suit, and it is his duty
to do what the court would order to be done, though his client instruct him
otherwise. Anon., 1 Wendell, 108.
[10] An attorney is not compelled to appear for any one unless he takes his fee or
backs the warrant. Anon., 1 Salk. 87. The attorney cannot determine the relation
himself, to his client's detriment. Love v. Hall, 3 Yerger, 408. When a solicitor
appointed by a party has acted as such, he cannot be displaced by the
appointment of another, without an order of the court. Mumford v. Murray, 1
Hopkins, 369. After an attorney has entered his name upon the record, he cannot
withdraw it without leave of the court; and until so withdrawn the service of a
citation upon him in case of appeal is sufficient. United States v. Curry, 6
Howard, U. S. Rep. 106.
[11] A counsel, attorney, or solicitor, will in no case be permitted, even if he
should be willing to do so, to divulge any matter which has been communicated
to him in professional confidence. This is not his privilege, but the privilege of
the client, and none but the client can waive it. Jenkinson v. The State, 5

Blackford, 465; Benjamin v. Coventry, 19 Wendell, 353; Parker v. Carter, 4
Munf. 273; Wilson v. Troup, 7 Johns. Ch. Rep. 25; Crosby v. Berger, 11 Paige,
377; Bank of Utica v. Mersereau, 3 Barbour Ch. Rep. 528; Aiken v. Kilburne, 27
Maine, 252; Crisler v. Garland, 11 Smedes & Marshall, 136; Chew v. The
Farmers' Bank of Maryland, 2 Maryland Ch. Decis. 231. It will be found in some
of these cases that though the counsel declined to be engaged for the client, yet
the facts communicated were held confidential; the only exception recognized
being where a purpose to perpetrate in futuro a felony or an action malum in se
was disclosed. Bank of Utica v. Mersereau, 3 Barbour Ch. Rep. 377. In Moore v.
Bray, 10 Barr, 519, it was held that communications of the object, for which an
assignment of a mortgage was made, to a counsel concerned for the assignee,
were privileged; although no question then arose as to the object of the
assignment, and the counsel considered the communication in the light of a
casual conversation. "The circle of protection," said Bell, J., "is not so narrow as
to exclude communications a professional person may deem unimportant to the
controversy, or the briefest and lightest talk the client may choose to indulge
with his legal adviser, provided he regards him as such at the moment. To found
a distinction on such a ground would be to measure the safety of the confiding
party by the extent of his intelligence and knowledge, and to expose to betrayal
those very anxieties, which prompt those in difficulty, to seek the ear of him in
whom they trust in season and out of season."
[12] Burnet's Life of Hale, 1 Hale's Works, 59, 60. "He began," says Lord
Campbell, "with the specious but impracticable rule of never pleading except on
the right side, which would make the counsel to decide without knowing either
facts or law, and would put an end to the administration of justice." 1 Lord
Campbell's Lives of the Chief Justices, 412. There is the following curious note
by Baxter in Burnet's Life of Hale. "And indeed Judge Hale would tell me that
Bishop Usher was much prejudiced against lawyers because the worst causes
find their advocates; but that he and Mr. Selden had convinced him of the
reasons of it to his satisfaction; and that he did by acquaintance with them
believe that there were as many honest men among lawyers, proportionably, as
among any profession of men in England (not excepting bishops or divines)." 1
Hale's Works, 106.
[13] 2 Wynne's Eunomus, 557.
[14] "Although Serjeants have a monopoly of practice in the Common Pleas,
they have a right to practice, and do practice, at this bar; and if we were to assign
one of them as counsel, and he were to refuse to act, we should make bold to
commit him to prison." Per C. J. Hale. 2 Campbell's Lives of the Chief Justices,
20; citing Freeman, 389; 2 Lev. 129; 3 Keble, 424, 439, 440.
[15] Let the circumstances against a prisoner be ever so atrocious, it is still the
duty of the advocate to see that his client is convicted according to those rules
and forms which the wisdom of the legislature have established, as the best
protection of the liberty and security of the subject. Professor Christian's note to
4 Blackst. Com. 356. From the moment that 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 practise, from that moment the liberties of
England are at an end. If the advocate refuses to defend from what he may think
of the charge or of the defence, he assumes the character of the judge, nay, he

assumes it before the hour of judgment; and in proportion to his rank and
reputation, puts the heavy influence of perhaps a mistaken opinion into the scale
against the accused, in whose favor the benevolent principle of English law
makes all presumptions, and which commands the very judge to be his counsel.
Lord Erskine, 6 Campbell's Lives of the Chancellors, 361.
[16] Per Gibson, C. J., in Rush v. Cavenaugh, 2 Barr, 189.
[17] "There are many who know not how to defend their causes in judgment,
and there are many who do, and therefore pleaders are necessary; so that that
which the plaintiffs or actors cannot or know not how to do by themselves, they
may do by their serjeants, attorneys, or friends." Mirr. of Justices, ch. 2, sec. v.
[18] Rush v. Cavenaugh, 2 Barr, 189. If the client in any suit furnishes his
attorney with a plea which the attorney finds to be false, so that he cannot plead
it for the sake of his conscience, the attorney may plead in this case, quod non
fuit veraciter informatus, and in so doing he does his duty. Jenkins, 52.
[19] Whewell's Elements of Moral and Political Science, vol. 1, p. 257.
[20] Law Magazine, February, 1850, May, 1854. Law Review, February, 1850.
Several articles on the subject, taken from the English press, are to be found in
Littell's Living Age, vol. 24, pp. 179, 230, 306. I have added, in an appendix,
Mr. Phillips's vindication of himself from these charges, in his correspondence
with his friend Mr. Warren, preceded by a brief statement of the case.
[21] The civil law will not allow a man to be convicted on his bare confession,
not corroborated by evidence of his guilt; because there may be circumstances
which may induce an innocent man to accuse himself. Bowyer's Commentaries,
355, note. Upon a simple and plain confession, the court hath nothing to do but
to award judgment; but it is usually very backward in receiving and recording
such confession out of tenderness to the life of the subject; and will generally
advise the prisoner to retract it and plead to the indictment. 4 Blackst. Comm.
329. 2 Hale, P. C. 225.
[22] Per Story, J., in Williams v. Read, 3 Mason, 418.
[23] In enumerating the things to which every pleader of others' causes ought to
have a regard, the Mirror of Justices says, "That he put no false dilatories into
court, nor false witnesses, nor move or offer any false corruptive deceits,
leasings, or false lies, nor consent to any such, but truly maintain his client's
cause, so that it fail not by any negligence or default in him, nor by any
threatening, hurt, or villany, disturb the judge, plaintiff, serjeant, or any other in
court, whereby he hinder the right or the hearing of the cause." Chap. 2, s. 5.
This is indeed in the very words of the serjeant's oath, and Lord Coke remarks
that it consists of four parts: "1. That he shall well and truly serve the king's
people, as one of the serjeants at law. 2. That he shall truly counsel them that he
shall be retained with, after his cunning. 3. That he shall not defer, wait, or delay
their causes willingly for covetousness of money, or other thing that may tend to
his profit. 4. That he shall give due attendance accordingly." 2 Inst. 214.
[24] A pleader is suspendable when he is attainted to have received fees of two
adversaries, in one cause. Mirror of Justices, chap. 2, sect. 5.

[25] "It is impossible to state a case, in which a witness should be treated
roughly. If you attempt it, every one feels offended, in the person of the witness.
You make your work more difficult; the witness shuts himself up, considers you
as his enemy, and stands upon his defence: whereas, an open countenance, and
an easy insinuating address, unlocks his breast, and disarms him of his caution,
if he has any." Deinology, 228. This admirable little work, which has been
attributed to the pen of Lord Erskine, cannot be too highly recommended to the
student of law. The postscript, which suggests considerations on the viva voce
examination of witnesses, is particularly worthy a very attentive perusal.
[26] Preston on Estates, 2.
[27] Co. Litt. 71 a.
[28] Ibid. 6 a.
[29] Art. Edward Tilghman, in the Encyclopædia Americana, vol. xiv; The
Leaders of the Old Bar of Philadelphia, 50. Let me recommend to the attention
of the student a curious and interesting work, entitled "An introduction to the
science of the law, showing the advantages of a legal education, grounded on the
learning of Lord Coke's Commentaries, upon Littleton's Tenures, &c., by
Frederick Ritso, Esq." There are few works of celebrity, in regard to which such
opposite opinions have been maintained as the Commentaries of Sir William
Blackstone. While some have expressed the most enthusiastic admiration, there
have been others, like Mr. Austin, Professor of General Jurisprudence, in the
University of London (Outlines of Lectures, 63), who have dealt in language of
unsparing condemnation and contempt. Mr. Ritso thinks that "the error was in
adopting them as an institute for the instruction and education of professional
students, which was evidently no part of Blackstone's plan, nor within the scope
of his engagement." In this point of view, he objects, that "he represents
everything rather for effect, than with a view to demonstrate. Like the gnomon
upon the sun-dial, he takes no account of any hours, but the serene:

Et quæ,
Desperat tractata nitescere posse, relinquit.

In a professional point of view, this solicitude rather to captivate the imagination
of the student, than to exercise and discipline the understanding, is equally
unprofitable and inconvenient. It puts him off with ornamental illustration,
instead of solid argument, and leads to a sort of half information, which is often
much worse than no information at all upon the subject." There is some force in
these remarks; yet, too many great lawyers have begun their studies with
Blackstone, to leave any doubt that it is a proper first book. It paves the way for
more repulsive, though more recondite and valuable works. I very much fear,
indeed, that a disposition has existed of late years to repudiate Coke upon
Littleton entirely. Chancellor Kent has shown his leaning in that direction
(Comm. vol. i, 506, 512). I subscribe fully, however, to Mr. Butler's opinion: "He
is the best lawyer, and will succeed best in his profession, who best understands
Coke upon Littleton." It ought not, perhaps, to be placed in the hands of the
student until he has made some progress in his reading of other works: but
sooner or later, he should aim to master it. Lord Coke was, himself, deeply
imbued with the love of his profession, and he is able to transfuse his own spirit

into his readers. His method may be objectionable in some respects; but I cannot
help thinking that the life of his work is gone when it is hacked to pieces, and
then attempted to be fitted together again upon another man's skeleton. I have
ventured to add in the Appendix (No. II), a sketch of such a course of reading, of
not very extensive compass, as may with advantage be pursued by every young
man after his admission to the Bar.
[30] Maddock's Chancery. Preface.
[31] Bowyer's Headings on the Canon Law, p. 44. Lord Campbell says that the
person here mentioned was George Hardinge—a Welsh judge and nephew of
Lord Camden. 5 Lives of the Chancellors, 20, 281. According to Lord Mahon, it
was on the 15th of March, 1782, in the debate on a motion of Sir John Rouse, of
want of confidence in the ministry after the surrender of Lord Cornwallis. He
ascribes the remark to Sir James Marriott, but says that, although he was the
assertor of this singular argument, the honor of its original invention seems
rather to belong to Mr. Hardinge. 5 Mahon's Hist. 139.
[32] Gibbon's Decline and Fall of the Roman Empire, c. xliv.
[33] Continuus inde et sævus accusandis reis Sicilius, multique audaciæ ejus
æmuli. Nam cuncta legum et magistratuum munia in se trahens Princeps,
materiam prædandi patefecerat. Nec quidquam publicæ mercis tam venale fuit,
quam advocatorum perfidia: adeo ut Samius insignis eques Romanus,
quadringentis nummorum millibus, Sicilio datis, et cognita prevaricatione, ferro
in domo ejus incubuerit. Igitur incipiente C. Silio consule designato, cujus de
potentia et exitio in tempore memorabo, consurgunt patres, legemque Cinciam
flagitant, qua cavetur antiquitus ne quis ob causam orandam pecuniam donumve
accipiat. Tacit. Annul. 1. 11, c. 5.
[34] Chancellor Walworth, in Adams v. Stevens, 26 Wendell, 21. While
expressing, as will be seen presently, the opinion that authority as well as sound
policy would have led me to a different conclusion from that at which
Chancellor Walworth arrived, it is proper to acknowledge that I have drawn
largely upon his learned judgment in this case, and at the same time to express
the high admiration I entertain for the ability with which the last of the New
York Chancellors illustrated the chair where such truly great men had sat before
him.
[35] Gibbon's Decline and Fall, c. xvii.
[36] 3 Blackst. Com. 28; Davis Pref. 22; 1 Chanc. Rep. 38; Davis, 23; Hodgson
v. Scarlett, 1 B. & Ald. 232; Finch. L. 188; and see Butler's note to 1 Co. Litt.
295 a. So it is with the advocates in the civil law. Vost ad Pand. tit. de Postal.
Numb. 6, 7, 8; Gravina de Oster. lib. 1, s. 42, 43, 44. Boucher D'Asyis, Hist.
Abrégé de L'Order des Avocats, c. iv. See also the commencement of the
Dialogue des Avocats du Parl. de Paris, by Loisil, which contains curious
particulars throughout respecting the ancient French Bar. An amusing anecdote
is related of Pasquier, the famous French advocate. In 1583, while he was
attending the assizes (les grands jours) at Troyes, he sat for his portrait, and after
the painter had finished the likeness, which Pasquier had not yet examined, he
asked him to represent him with a book in his hand. The painter said that it was

too late, as the picture was completed without hands. Upon this the witty lawyer
immediately wrote the following lines as a motto for the portrait:

Nulla hic Pascasio manus est: Lex Cincia quippe
Causidicos nulla sanxit habere manus.

Forsyth's Hortensius, 424.
[37] The reader will find in the Appendix, No. III, an account of the different
orders of the English Bar.
[38] In some States, the professions of attorney and counsellor at law are not
distinct; the same person conducts the cause in all its stages; and it has not been
considered that his authority ceases when judgment is obtained. The attorney is
in some degree the agent as well as the attorney of the party. Huston, J., in Lynch
v. The Commonwealth, 16 Serg. & Rawle, 368.
[39] Mooney v. Lloyd, 5 Serg. & Rawle, 416.
[40] Hornblower, C. J., in Seeley et al. v. Crane, 3 Green, N. J. 35. "I shall be
sorry to see the honorary character of the fees of barristers and physicians done
away with. Though it seems to be a shadowy distinction, yet I believe it to be
beneficial in effect. It contributes to preserve the idea of profession, of a class
which belongs to the public, in the employment and remuneration of which no
law interferes, but the citizen acts as he likes, 'foro conscientiæ.'" Coleridge's
Table Talk, vol. 2.
[41] Gray v. Brackenridge, 2 Penna. Rep. 181; Foster v. Jack, 4 Watts, 33. In
New Jersey, an advocate's fees are not recoverable at law. Shaver v. Norris,
Penning. 63; Seeley v. Crane, 3 Green, 35; Van Alter v. McKinney's Exrs. 1
Harrison, 236. That the general current of decisions is in the opposite direction,
will be seen by consulting Stevens v. Adams, 23 Wendell, 57; S. C. 26 Wendell,
451; Newman v. Washington, Martin & Yerger, 79; Stevens v. Monges, 1
Harrington, 127; Bayard v. McLane, 3 Harrington, 217; Duncan v. Beisthaupt, 1
McCord, 149; Downing v. Major, 2 Dana, 228; Christy v. Douglas, Wright's Ch.
Rep. 485; Webb v. Hepp, 14 Missouri, 354; Vilas v. Downer, 21 Vermont, 419;
Lecatt v. Sallee, 3 Porter, 115; Easton v. Smith, 1 E. D. Smith, 318.
[42] Chancellor Walworth, in Adams v. Stevens, 26 Wendell, 451; Foster v. Jack,
4 Watts, 337.
[43] Senator Verplanck, in Adams v. Stevens, 26 Wendell, 451.
[44] Vilas v. Downer, 21 Vermont, 419. Responsibility in a confidential
employment is a legitimate subject of compensation, and in proportion to the
magnitude of the interests committed to the agent. Kentucky Bank v. Combs, 7
Barr, 543.
[45] That evidence of usage is admissible to show what is the rule of
compensation for similar services to those sued for, see Vilas v. Downer, 21
Vermont, 424; Badfish v. Fox, 23 Maine, 94.
[46] Concerning the pleader's salary, says the Mirror, chap. 2, sec. 5, "four things
are to be regarded: 1. The greatness of the cause. 2. The pains of the serjeant. 3.

His worth, as his learning, eloquence, and gift. 4. The usage of the court."
[47] Les lois et les docteurs, les anciennes ordonnances et plusieurs anciens
arrêts donnent aux avocats une action pour le paiement de leurs honoraires:
mais, suivant la dernière jurisprudence du Parlement de Paris et la discipline
actuelle du barreau, ou ne souffre point qu'un avocat intente une telle action. 1
Dupin, Profession d'Avocat, 110. Il est possible, que l'usage ne soit qu'un
préjugé; mais ce préjugé a eu une salutaire influence sur la splendeur du barreau
Francais. On ne prétend pas, en France, qu'un avocat n'a pas droit à un honoraire
pour prix de ses travaux. Jamais on n'a refusé d'en allouer à ceux qui en ont
réclamé. Dans plusieurs barreaux, ces réclamations sont même tolerées. Mais le
barreau de Paris s'est montré plus sévère; et non seulement autrefois, mais
encore aujourd'hui, tout avocat à la cour qui actionnerait un client en paiement
d'honoraires serait rayé du tableau. Du reste, s'il est defendu d'exiger, il est
permis de recevoir tout ce que le client veut bien assigner pour prix aux services
de son avocat, en raison de ses peines et de l'importance des travaux. Ibid. 698.
Les honoraires dus par les parties aux avocats chargés du soin de leur défense,
ne doivent pas être restraints à la taxe établie par le tarif. Cette taxe a pour objet
seulement de fixer la somme due par la partie qui succombe, et non d'apprecier
les soins de l'avocat, appreciation qui doit être faite selon l'importance et la
difficulté du travail. Ibid. 699.
[48] Arden v. Patterson, 5 Johns. Ch. Rep. 48.
[49] Foster v. Jack, 4 Watts, 338, 339.
[50] Clippinger v. Hepbaugh, 5 Watts. & Serg. 315; Marshall v. The Baltimore
and Ohio Railroad Co., 16 Howard (S. C.) Rep. 336. That champerty is an
offence at common law, and that contracts of that character, between client and
counsel, are void on that ground, and as against public policy, will be found to
have been maintained in Rust v. Larue, 4 Litt. 411; Caldwell's Administrators v.
Shepherd's Heirs, 6 Monroe, 391; Thurston v. Percival, 1 Pick. 415; Arden v.
Patterson, 5 Johns. Ch. Rep. 48; Bleakley's case, 5 Paige, 311; Wallis v. Loubert,
2 Denio, 607; Backus v. Byron, 4 Michigan, 535; Elliott v. McClelland, 17
Alabama, 206. The cases on the other side, are, Thallhimer v. Brinckerhoff, 3
Cowen, 643; Ramsay's Devisees v. Trent, 10 B. Monroe, 336; Bayard v. McLane,
3 Harrington, 216; Lytle v. State, 17 Arkansas, 608; Newkirk v. Cone, 18 Illinois,
449; Major v. Gibson, 1 Patton Jr. & Heath (Va.), 48; Wright v. Meek, 3 Iowa,
472. In New York, by the Revised Statutes, it was made an offence, punishable
by fine or imprisonment, and removal from the Bar, for any attorney, counsellor,
or solicitor, directly or indirectly to buy, or be in any manner interested in
buying, or to advance or procure money to be advanced upon anything in action,
with the intent, or for the purpose of bringing any suit thereon. 2 Revised Stat.
386. The Code of Procedure appears to have changed the law in this respect, and
to enable parties to make such bargains as they please with their attorneys. Code
of Procedure, s. 258; Satterlee v. Frazer, 2 Sandf. S. C. Rep. 142; Benedict v.
Stuart, 23 Barb. 420; Ogden v. Des Arts, 4 Duer (N. Y.), 275; Sedgwick v.
Stanton, 4 Kernan, 289. In Kentucky there appears to be a statute, which
provides that any one not a party, receiving as compensation for services in
prosecuting or defending a suit the whole or part of the subject-matter in suit, is
guilty of champerty, and it has been held that this statute extends to attorneys.

Davis v. Sharron, 15 B. Monroe, 64. In England, contingent fees are held to be
clearly within the statutes of champerty and maintenance. Penrice v. Parker, Rep.
Temp. Finch, 75.
[51] 2 Wallace, Jr. Rep. 452.
[52] 10 Casey, 299.
[53] Paciscendi quidem ille piraticus mos; et imponentium periculis pretia,
procul abominanda negotiatio, etiam a mediocriter improbis aberit: cum
præsertim bonos homines bonasque causas tuenti non sit metuendus ingratus,
qui si futurus, malo tamen ille peccet. Quinct. Lib. xii, c. 7.
[54] Evans v. Ellis, 5 Denio, 640; Newman v. Payne, 2 Ves. 199; Walmsley v.
Booth, 3 Atk. 25; Montesquieu v. Sandys, 18 Ves. 313. The doctrine has been
fully followed in this country; Stockton v. Ford, 11 How. U. S. 247; Starr v.
Vanderheyden, 9 Johns. 253; Howell v. Ransom, 11 Paige, 538; De Rose v. Fay,
4 Edw. Ch. 40; Lewis v. J. A., Ibid. 599; Berrien v. McLane, 1 Hoffman, Ch.
Rep. 424; Miles v. Ervin, 1 McCord, Ch. Rep. 524; Rose v. Mynell, 7 Yerger, 30;
Bibb v. Smith, 1 Dana, 482; Smith v. Thompson's Heirs, 7 B. Monroe, 308;
Jennings v. McConnel, 17 Illinois, 148.
An agreement made by a client with his counsel, after the latter had been
employed in a particular business, by which the original contract is varied, and
greater compensation is secured to the counsel than may have been agreed upon
when first retained, is invalid and cannot be enforced. Lecatt v. Sallee, 3 Porter,
115.
[55] In Foss's Grandeur of the Law, eighty-two existing peerages are stated to
have sprung from the law. That was in 1843.
[56] Non merum, si ob hanc facultatem homines sæpe etiam non nobiles
consulatum consecuti sunt: præsertim cum hæc eadem res plurimas gratias,
firmissimas amicitias, maxima studia pariat. Cic. pro Muræna.
[57] Vivit, vivetque per omnium sæculorum memoriam. Dumque hoc vel forte
vel providentia vel utcunque constitutum rerum naturæ corpus, quod ille pæne
solus Romanorum animo vidit, ingenio complexus est, eloquentia illuminavit,
manebit incolume: comitem ævi sui laudem Ciceronis trahet; omnisque
posteritas illius in te scripta mirabitur, tuum in eum factum execrabitur: citiusque
in mundo genus hominum, quam cadet. Vell. Patere. L. 2.
[58] Sir William Jones adds to his other claims upon our admiration that of a
decided partiality to the character and fortunes of our American Republics. "The
sum of my opinion is," says he, "that while all the American people understand
the modern art of war, and learn jurisprudence by serving in rotation upon grand
and petit juries, their liberty is secure, and they will certainly flourish most when
their public affairs are best administered by their Senate and Councils. I cannot
think a monarchy or an oligarchy stronger in substance, whatever they may be in
appearance, than a popular government.... I shall not die in peace without
visiting your United States for a few months before the close of the eighteenth
century. May I find wisdom and goodness in your Senate, arms and judicature,

which are power, in your commons, and the blessings of wealth and peace
equally distributed among all." 2 Wynne's Eunomus, 359, note.
[59] Note at p. 47.
[60] Note at p. 75.

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