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AN  ES SAY
ON
PROFESSIONAL ETHICS,
BY
GEORGE SIIARSWO OD.
Id non eo tantum, quod si vis illa dicepdi 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 LATRON[ COMPAREMUS tIAC ARMA, NON IMILITI.
QUINCT. DE INST. On.
PH I L A D EL PHI A:
T. & J. W. JOHNSON & CO.,
LAW BOOKSELLERS AND PUBLISHERS,
NO. 5.35 CIIESTNUT STREEr.
1 860.




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.








PRE ACE.
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 all 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. IIe 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




jiii
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.




IN TllODUCTI ON.
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 jufs dar~e —of jurisprudence, jus




x
dlice ro. 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 deter-mining 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,




xi
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




xli
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 unneces-.sary 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  as commanded
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 malumprohibitum. The
authority of God as a lawgiver is certainly not




xiv
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




xv
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 wonderfiul 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
B.,




xvi
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




xvii
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




XViii
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




xix
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 explerinmentuer 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 nmater~ et cqu'i: 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




xx
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 specu



xxi
lation-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
g9vernment 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




XXll
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
Jlarger 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




Xxiii
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 illconsidered alterations in the civil code, vitally
affecting private rights and relations. Such
C




XXIV
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 law



xxv
yers 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:




xxvi
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 laav
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 cdoctrinaire 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




XXVI1
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




XXViii
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 unceas



xxix
ing 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.vwill 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,




XXX
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
yrovince 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




Xxxi
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, leyes
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




Xxxii
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




XXXlll
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




xxxiv
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




XXXV
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
hil 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
I)




Xxxvi
with or without compensation. "The clause,"
he argued, "by which it is declared that no
man's property shall be taken or applied to
1lublic 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
4eclared 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




Xxxvii
in Mlagna Clharta, 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




Xxxviii
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




XXXix
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 parxte
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
hts 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
D*




xl
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




xli
conscience.  Iis 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




xlii
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




xliii
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."
Urfortunately our Supreme Court have not always put this sound and wise limitation upon
their own power. In the case of Post v. Avery
(6 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




xliv
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 Rawl. 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:
"C Cujus generis leges raro et mnagna curm cautione sunt adhibenda: neque enim placet Janits
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, executoiy 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 con



xlv
tract 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 re-dress. 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 Phoenix 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,




xlvi
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




xlvii
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 hap



xlviii
pens 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
Phoenix, 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




xlix
Supreme Court said: " The time is come; when
the doctrine of Steele v. The Phcenix 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
op.eration 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 tile 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 1791, 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




li
creditors. Such was recognized to be the true
meaning of the law in 1795 (Hiannum v. Spear,
I 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 intelli



gible 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




liii
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




liv
figure, to be iultimate 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,




3
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.*
*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,




4
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* —lleld 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
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."
* Hurst's case, 1 Levins, 72; 1 Sid. 94, 151; Raym. 56,
94; 1 Keb. 349, 354, 387.




to no other class or profession.* It is, therefore, that the legislature have seen fit to require
* 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
C6nstitution 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
1*




6
that there should be added to the solemnity of
the responsibility, which every man virtually
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 be 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




7
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.
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
footjng 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
D1urr, 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.




8
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 fellowcitizens; his title to distinction and respect
resting on no other foundation, than his virtues
and qualities as a man.* 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 dig* Per Gibson, C. J., in Austin's case, 5 Rawle, 204.




9
nity 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.
OGood men of all parties prefer to live in a coun
try, 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




10
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 tem4per 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.  WBords are spoken, or things
done, which the parties afterwards wish could
be unsaid or undone. Equanimity and selfpossession 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-li-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




12
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.*
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
* The exact weight of one hundred silver dollars of the
old coinage is 85'9375 ounces; of the new coinage, 80
ounces.




13
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.  Judicerz nec de obtinendo jure orwwri oportet nec de
iijuria 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
2




14
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. " t 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




15
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."*
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 mis* Ex parte Carter, 1 Philada. Rep. 507. Blaike's Lessee v. Chambers, 1 Serg. & Rawle, 169.




take, 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 questioues juris responleant jatdices,-ad questionzes 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.*  It is best for
* Court and juries have their respective spheres assigned
to them, within which each is to act and move, without




17
counsel to say in such cases, where nothing is
left by the charge to the jury, that they do not
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.
Pe1p 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.
2*




18
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 paperbooks intentionally garbled. "Sir Matthew Hale
abhorred," says his biographer, "those too comIt 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.




19
mon 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."*
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.
Hg 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
* Burnet's Life of Sir Matthew Hale, 72.




20
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 lie 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




22
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




23
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.* Though such be the
* 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




24
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
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., I Wendell, 108.




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
swrong 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 appe'arance
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




26
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 conscientice, 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,
wvhich 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,
wh~o 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 pre



28
sented 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.* To
* 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.




29
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.* How then is he to acquit him* 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 malumn 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 privi



30
self?  Lord Brougllam, 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 performleged; 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."




31
ing 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 counsellkor, 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




32
to be very bad; but he inquiring more narrowly
into them, found they twere 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."*
It may be delicate and dangerous ground to
tread upon to undertake to descend to particulars upon such a subject. Every case must, to
* 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,
wvhich 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.




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 souid 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
conscientice, 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




34
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




35
daunted at the augustness of such an assembly,
what must a man be who should plead before
them  for his life "    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.t 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.+
*2 Wynne's Eunomus, 557.
t "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.
t 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.  I'ro



36
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 scAie, as there
fessor Christian's note to 4 Blackst. Com. 356.  From the
moment that any advocate can be permitted to say that he
wall 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 many 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.




37
is in the case of a defendant. It is in every
case but an act of courtesy in the AttorneyGeneral 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 or
good.s, 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
4




38
that of the Attorney-General, whose locum
telnens at sufferance, he is; and he consequently
does so under the obligation of the official
oath."*" 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 plaintiff's demand against him
should be proved and proceeded with according to law. If it were thrown upon the par-'ties themselves, there would be 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
* er Gibson, C. J., in Rush v. Cavenaugh, 2 Barr, 189.




39
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.
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
*, "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.




40
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
pf 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 dic



41
tates of his conscience."* 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
caseshould be conducted upon the most liberal principles. When he is contending against
* 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 von flit veraciter informatus, and in so doing he
does his duty. Jenkins, 52.
4*




42
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




43
gain an unrighteous object, he ought to throw
up the cause, and retire from all connection
with it, rather than thus be 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
apd 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




44
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,
hbut 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."*
Nothing need be added to enforce what has
been so well said.  The remark, however, may
* Whewell's Elements of Moral and Political Science,
vol. 1, p. 257.




46
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.




47
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.*
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*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.




48
and that confirmed by Chief Justice Tindal, is
conclusive. To charge him with acting ftlseh7ood, 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 defense. No rightmninded 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




49
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.* 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 whiether guilty or not
guilty, if the evidence is insufficient to convict
him, he has a legal right to be acquitted. The
* The civil law will not allow a man to be convicted on
his bIre 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.




50
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




51
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




52
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




53
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
5*




54
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.*
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
* Per Story, J., in Williams v. Read, 3 Mason, 418.




55
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-importantr 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 de



56
mands 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




57
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



58
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."
Jt 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




9
not comprehended.- 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
* 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 couirt, 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: " ]. 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.




60
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




61
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 honoraxble 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.*  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 per* A pleader is suspendable when he is attainted to have
received fees of two adversaries, in one cause. Mirror of
Justices, chlp. 2, sect. 5.
6




62
mit 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 gene



rally tells badly on the jury. They are apt to
sympathize with a witness under such circumstances.* 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 irrita* "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 mnore 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 visa
voce examination of witnesses, is particularly worthy a very
attentive perusal.




64
tion, 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,




65
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
takeonotice, 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
6*




66
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.
I.t 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




67
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. WVhen 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 be 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




68
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 ne*cessity 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




69
aptitude for comprehending other heads of the
law."* 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
* Preston on Estates, 2.




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 themin short, lie 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, mrelius 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,"" 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." t
It may be allowed here to commend to
most serious consideration, the remarks of one
* Co. Litt. 71 a.              t Ibid. 6 a.




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'lnow 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




73
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."*
*Art. Edward Tilghman, in the Encyclopaedia 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. MIr. 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
7




74
Such a course of study as is here recommended, is not the work of a day or a year.
the sun-dial, he takes no account of any hours, but the
serene 
Et quse,
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




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,
ih 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.
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.




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,"*
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
* Maddock's Chancery. Preface.




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 fiom
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.*
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 prepa* Bowyer's Readings 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.




79
ration 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,




80
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




81
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.
Oiu 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




82
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.* 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
* Gibbon's Decline and Fall of the Roman Empire, o.
xtiv.




83
tribune of the people, procured the passage of
the law known as the Cincican 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
amnount of the fees of advocates.* Nero re* Continuus inde et srvus accusandis reis Sicilius, multique audaciae ejus anmuli. Nam cuncta legum et magistratuum munia in se trahens Princeps, materiam praedandi
patefecerat. Nee quidquam publicx  mercis tam venale
fuit, quam advocatorum perfidia: adeo ut Saimius insignis




84
voked 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 agree-ment for a specific sum.*
eques Romanus, quadringentis nummorum millibus, Sicilio
datis, et cognita prevaricatione, ferro in domo ejus incubuerit. Igitur incipiente C. Silio consule designate, cujus
de potentia et exitio in tempore meinorabo, consurgunt patres, legemque Cinciam flagitant, qua cavetur antiquitus ne
quis ob causam orandam pecuniam donumve accipiat. Tacit.
Annal. 1. 11, c. 5.
* Chancellor Walworth, in Adams v. Stevens, 26 Wen



85
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
dell, 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.




86
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."* 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.t There is in that country a class
" Gibbon's Decline and Fall, c. xvii.
t 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 Postul. Numb. 6, 7, 8; Gravina de Oster. lib. 1, s.




87
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
42, 43, 44. Boucher iD'Asyis, Hist. Abrege. 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 hie Pascasio manus est: Lex Cincia. quippe
Causidicos nulla sanxit habere manus.
Forsyth's Hortensius, 424.




88'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.*
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.t  In Pennsylvania, it was held at one time that an attorney
* The reader will find in the Appendix, No. III, an account of the different orders of the English Bar.
t 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.




89
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.* 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.t  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.+
* Mooney v. Lloyd, 5 Serg. & Rawle, 416.
~t lornblower, 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 conscientice.'"  Coleridge's Table Talk, vol. 2.
A Gray v. Brackenridge, 2 Penna. Rep. 181; Foster v.
8*




90
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.* It has been pronounced ridicuJack, 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.
* Chancellor Walworth, in Adams v. Stevens, 26 Wendell, 451; Foster v. Jack, 4 Watts, 337.




91
lous 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.*
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,
* Senator Verplanck, in Adams v. Stevens, 26 Wendell,
451.




92
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,




93
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.* 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
* 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.




94
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.* 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,
* 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, 91.




95
as well as himself, that when the client has the
ability, his services should be recompensed;
and that according to a liberal standard.*
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
orler involved in such proceedings; and al* 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."




96
though 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.*
* Les lois et les docteurs, les anciennes ordonnances et
plusieurs anciens arrets donnent aux avocats une action
pour le paiement de leurs honoraires: mais, suivant la
derniere 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. II est possible, que l'usage ne soit qu'un
pr6juge; mais cce prejug6 a eu une salutaire influence sur
la splendeur du barreau Francais.  On ne pretend pas, en
France, qu'un avocat n'a pas droit a un honoraire pour
prix de ses travaux.  Jamais on n'a refuse d'en allouer i
ceux qui en ont r6eclame. Dans plusieurs barreaux, ces
reclamations sont mr6me tolerfees. Mais le barreau de Paris
s'est montr(e plus sevdre; et non seulement autrefois, mais
encore aujourd'hui, tout avocat a la cour qui actionnerait
un client en paiement d'honoraires serait ray6 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 leas parties aux avocats charges du




97
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,
whichi 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
soin de leur defense, ne doivent pas 6tre restreints "a la taxe
etablie 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 etre faite
selon l'importance et la difficult6 du travail. Ibid. 699.
9




98
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 mis



99
chief to the community."   "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."t  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.+
* Arden v. Patterson, 5 Johns. Ch. Rep. 48.
t Foster v. Jack, 4 Watts, 338, 339.
1 dlippinger 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 IDcnio,




100
"The practice," said Judge Rogers, in delivering the opinion of the court, "which has
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.




101
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,* 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-uberrimna fide-without suppression or reserve of fact or exaggeration of apprehended difficulties, or under inSharron, 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.
*2 Wallace, Jr. Rep. 452.
9*




102
fluence 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,* which recognized an agreeanent 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 le*10 Casey, 299.




103
gality, 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 contrmct 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




104
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.




105
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.* The parties are necessarily not on an
* Paciscendi quidem ille piraticus mos, et imponentium
periculis pretia, procul abominanda negotiation etiam a mediocriter improbis aberit: cum presertim bonos homines
bonasque causas tuenti non sit metuendus ingratus, qui si
futurus, malo tamen ille pecceto Quinct. Lib. xii, c. 7.




106
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




107
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




108
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.




109
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.* 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
* 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.
10




110
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 mortifica



111
tion, 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




112
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,




113
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
10*




114
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 enmployment 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




115
seats and dignities, as well as their possessions,
either to their own professional success, or to
that of some one of their ancestors.* 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 t  It is well to read
* In Foss's Grandeur of the Law, eighty-two existing
peerages are stated to have sprung from the law. That
was in 1843.
t Non merum, si ob hane facultatem homines scepe etiam




116
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.*  The autobiography
non nobiles consulatum consecuti sunt: proesertim cum hbec
eadem res plurimnas gratias, firmissimas amicitias, maxima
studia pariat. Cic. pro Murana.
* Vivit, vivetque per omnium smaculorum memoriam.




117
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 Williamn Jones, by
Lord Teignmouth. It exhibits the wonders,'wvhich 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
DtImque hoc vel forte vel providentia  vel utcunque constitutumi rerum naturre corpus, quod ille p1ene solus Romanorum animo vidit, ingenio complexus est, eloquentia
illuminavit, manebit incolume: comitem aevi sui laudem
Ciceronis trahet; omnisque posteritas illius in te scripta
mirabitur, tuum in eum factum execrabitur: citiusque in
mundo genus hominum, quam cadet. Veil. Paterc. L. 2.




118
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




119
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."
This department of English  literature has
* 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
lilerty 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




120
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 WVilliam 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 spiritstirring 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
wisdom and goodness in your Senate, arlns and judicature,
which are power, in your commons, and the blessings of
wealth and peace equally distributed among all." 2 Wynne's
Eunoumus, 359, note.




121
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,
11




122
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




123
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 tomnlb."




124
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 3 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,




125
or the almost breathing, speaking marblecan 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.
11*








APPENDI X.
No. I.
COURVOISIER'S CASE.*
ON Tuesday night, May 5th, 1840, Lord William Russell, infirm, deaf, and aged, being in his seventy-third year,
was murdered in his bed.  I-e was a widower, living at
No. 14 Norfolk Street, Park Lane, London, a small house,
occupied by only himself and three servants, —Courvoisier,
a yolgng Swiss valet, and two women, a cook and housemaid. 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
* Note at p. 47.




128
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
(Mirs. 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




129
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 " TIMIES."
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.




130
INNER TEMPLE, NOV. 14, 1849.
BY 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




181
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.
MfY 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




132
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 amn 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




133
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, 1" 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
12




134
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




135
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 selfproclaiming 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




136
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,




137
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
12*




138
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 IMr. Adolphus, and says his witness Sarah




139
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 charalcter." 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




140
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 tanturn. 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 r'ecti, 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 vainThe creature's at his dirty work again.




141
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.*
_NAon multa sed multunm, 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. LIdo not say that this is all.
The plan of reading, which I am about to recommend,
* Note at p. 75.




142
may be begun in the office. M1luch 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, prcepostera lectio and prcepropera 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 —1i. 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.




143
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 lawbooks, 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.




144
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.




145
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
13




146
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 biogapher, Mr.
Wheaton, "abounded with perpetual recurrences to the
principles and analysis drawn from this rich mine of common law learning."  Mir. 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. Hle 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




147
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 ill 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 Jurisprudelice 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 Mir. 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




148
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. Sug-.den'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.




149
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
13*




150
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 Mrr. 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 For



151
feiture 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.




152
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 Horse Juridicao.  Gibbon's History of the Decline and Fall, chap. 44. Justinian's Institutes. Savigny's
Traite 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.
An.gel and Ames on Corporations. Les (Euvres 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 Traite 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.




153
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 2Eneid threw open the adamantine gates that
led to Elysium."




154
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 persops 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 apfprentgces, being the first degree in the law conferred by the inns of court. Spelman defines apprentice,
tyro, discipulus, novitius in aliqua faczultate.  This was
probably the meaning of the term primarily; but as early




155
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 a@pprenticii ad legern, 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 serjeantcountors. 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




156
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 serieants-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




157
lower clergy, which has occasioned their successors to be
styled clerks to this day (1 Bl. Corn. 17). The livings in
the gift of the Chancellor were originally lintended 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." I Campbell's
Lives of the Chancellors, 179, 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
5f 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 ser.
jeants (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;
14




158
but it did not pass. In 183-1, 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
scrjeants in the Court of Common Pleas.