CHAP. I.] PECULATION-PLEADING. 135 here. Suppose the counsel, though he did discover the watch was the daughter's, had not insisted upon the inaccuracy, no evil would have ensued. The integrity of the law would not have been violated. The act of a counsel therefore in such a case is simply and only a defeat of public justice, an injury to the state, an encouragement to thieves; and surely there is no reason, either in morals or in common sense, why any particular class of men should be privileged thus to injure the community. The wife of a respectable tradesman in the town in which I live was left a widow with eight or ten children. She employed a confidential person to assist in conducting the business. The business was flourishing; and yet at the end of every year she was surprised and afflicted to find that her profits were unaccountably small At length this confidential person was suspected of peculation. Money was marked and placed as usual under his care. It was soon missed, and found upon his person; and when the police searched his house, they found in his possession, methodically stowed away, five or six thousand pounds, the accumulated plunder of years! This cruel and atrocious robber found no "difficulty in obtaining advocates, who employed every artifice of defence, who had recourse to every technicality of law, to screen him from punishment, and to secure for him the quiet possession of his plunder. They found in the indictment some word, of which the ordinary and the legal acceptation were different; and the indictment was quashed! Happily, another was proof against the casuistry, and the criminal was found guilty. Will it be said that pleaders are not supposed to know, till the verdict is pronounced, whether a prisoner is guilty or not? If this were true it would not avail as a justification; but in reality it is only a subterfuge. In this very case, after the verdict had been pronounced, after the prisoner's guilt had been ascertained, a new trial was obtained; not on account of any doubt in the evidence,—that was unequivocal,-but on account of some irregularity in passing sentence. And now the same conduct was repeated. Knowing that the prisoner was guilty, advocates still exerted their talents and eloquence to procure impunity for him, nay to reward him at the expense of public duty and of private justice They did not succeed: the plunderer was transported; but their want of success does not diminish the impropriety, the immorality, of their endeavours. If, by the trickery of law, this man had obtained an acquittal, what would have been the consequence? Not merely that he would have possessed undisturbed his plundered thousands; not merely that he might have laughed at the family whose money he was spending; but that a hundred or a thousand other shopmen, taking confidence from his success and his impunity, might enter upon a similar course of treachery and fraud. They might think that if the hour of detection should arrive, nothing was wanting but a sagacious advocate to protect them from punishment and to secure their spoil. Will any man then say, as an excuse for the legal practice, that it is " usual," "customary," the "business of the profession?" It is preposterous.* * Some obstacles in the way of this mode of defeating the ends of justice have been happily interposed by the admirable exertions of the late secretary of state for the home depart ment. Stil such cases are applicable as illustrations of what the duties of the profession are; and, unfortunately, opportunities in abundance remain for sacrificing the duties of the profession to its "business." Here, without any advertence to political opinion, it may be 136 PLEADING. [ESSAY II It really is a dreadful consideration, that a body of men, respectable in the various relationships of life, should make, in consequence of the vicious maxims of a profession, these deplorable sacrifices of rectitude. To a writer upon such a subject, it is difficult to speak with that plainness which morality requires, without seeming to speak illiberally of men. But it is not a question of liberality, but of morals. When a barrister arrives at an assize town on the circuit, and tacitly publishes that (abating a few, and only a few, cases) he is willing to take the brief of any client; that he is ready to employ his abilities, his ingenuity, in proving that any given cause is good, or that it is bad; and when, having gone before a jury, he urges the side on which he happens to have been employed, with all the earnestness of seeming integrity and truth, and bands all the faculties which God has given him in promotion of its suc cess,-when we see all this, and remember that it was the toss of a die whether he should have done exactly the contrary, I think that no expression characterizes the procedure but that of intellectual and moral prostitution. In any other place than a court of justice, every one would say that it was prostitution: a court of justice cannot make it less. Perhaps the reader has heard of the pleader who, by some accident, mistook the side on which he was to argue, and earnestly contended for the opponent's cause. His distressed client at length conveyed an intimation of his mistake, and he, with forensic dexterity, told the jury that hitherto he had only been anticipating the arguments of the opposing counsel, and that now he would proceed to show they were fallacious. If the reader should imagine there is peculiar indecency in this, his sentiment would be founded upon habit rather than upon reason. There is, really, very little difference between contending for both sides of the same cause, and contending for either side as the earliest retainer may decide. I lately read the report of a trial in which retainers from both parties had been sent to a counsel, and when the cause was brought into court, it was still undecided for whom he should appear. The scale was turned by the judgment of another counsel, and the pleader instantly appeared on behalf of the client to whom his brother had allotted him. From the mistake which is mentioned at the head of this paragraph, let clients take a beneficial hint. I suggest to them, if their opponent has engaged the ablest counsel, to engage him also themselves. The arrangement might easily be managed, and would be attended with. manifest advantages: clients would be sure of arraying against each other equal abilities; justice would be promoted by preventing the triumph of the more skilful pleader over the less; and the minds of juries might more quietly weigh the conflicting arguments, when they were all proved and all refuted by one man. Probably it will be asked, what is a legal man to do? How shall he discriminate his duties, or know in the present state of legal institutions, what extent of advocation morality allows? These are fair questions, and he who asks them is entitled to an answer. I confess that an answer is difficult; and why is it difficult? Because the whole system is unsound. He who would rectify the ordinary legal practice is in the situation of a physician who can scarcely prescribe with effect for remarked, that one such statesman as ROBERT PEEL is of more value to his country than a multitude of those who take office and leave it, without any endeavour to ameliorate the national institutions. CHAP. 5.] THE DUTIES OF THE PROFESSION. 137 a particular symptom in a patient's case, unless he will submit to an entirely new regimen and mode of life The conscientious lawyer is surrounded with temptations and with difficulties resulting from the general system of the law; difficulties and temptations so great that it may almost appear to be the part of a wise man to fly rather than to encounter them. There is however nothing necessarily incidental to the legal profession which makes it incompatible with morality. He who has the firmness to maintain his allegiance to virtue may doubtless maintain it. Such a man would consider, that law being in general the practical standard of equity, the pleader may properly illustrate and enforce it. He may assiduously examine statutes and precedents, and honourably adduce them on behalf of his client. He may distinctly and luminously exhibit his client's claims. In examining his witnesses he may educe the whole truth; in examining the other party's, he may endeavour to detect collusion, and to elicit facts which they may attempt to conceal ;. in a word, he may lay before the court a just and lucid view of the whole question. But he may not quote statutes and adjudged cases which he really does not think apply to the subject, or if they do appear to apply, he may not urge them as possessing greater force or applicability than he really thinks they possess. He may not endeavour to mislead the jury by appealing to their feelings, by employing ridicule, and especially by unfounded insinuations or misrepresentation of facts. He may not endeavour to make his own witnesses affirm more than he thinks they know, or induce them, by artful questions, to give a colouring to facts different from the colouring of truth. He may not endeavour to conceal or discredit the truth by attempting to confuse the other witnesses, or by entrapping them into contradictions. Such as these appear to be the rules which rectitude imposes in ordinary cases. There are some cases which a professional man ought not to undertake at all. This is indeed acknowledged by numbers of the profession. The obligation to reject them is of course founded upon their contrariety to virtue. How then shall a legal man know whether he ought to undertake a cause at all, but by some previous consideration of its merits? This must really be done if he would conform to the requisitions of morality. There is not an alternative: and "absurd" or "impracticable" as it may be pronounced to be, we do not shrink from explicitly maintaining the truth. Impracticable! it is at any rate not impracticable to withdraw from the profession, or to decline to enter it. A man is not compelled to be a lawyer; and if there are so many difficulties in the practice of professional virtue, what is to be said? Are we to say, Virtue must be sacrificed to a profession,-or, The profession must be sacrificed to virtue? The pleader will perhaps say that he cannot tell what the merits of a case are until they are elicited in court: but this surely would not avail to justify a disregard of morality in any other case. To defend one's self for an habitual disregard of the claims of rectitude, because we cannot tell, when we begin a course of action, whether it will involve a sacrifice of rectitude or not, is an ill defence indeed. At any rate, if he connects himself with a cause of questionable rectitude, he needs not and he ought not to advocate it while ignorant of its merits, as if he knew that it was good. He ought not to advocate it further than he thinks it is good. But if any apologist for legal practice should say that a pleader knows nothing or almost nothing of a brief till he is instructed in court by a junior counsel, or that he has too many briefs to be capable of any previous inquiry about them, the 138 EFFECTS OF LEGAL PRACTICE. [ESSAY II. answer is at hand,-Refuse them. It would only add one example to the many, that virtue cannot always be maintained without cost. It is necessary that a man should adhere to virtue: it is not necessary that he should be overwhelmed with briefs. There is one consideration under which a pleader may assist a client even with a bad cause, which is, that it is proper to prevent the client from suffering too far. I would acknowledge, generally, the justice of the opposite party's claims, or, if it were a criminal case, I would acquiesce in the evidence which carried conviction to my mind; but still, in both, something may remain for the pleader to do. The plaintiff may demand a thousand pounds when only eight hundred are due, and a pleader, though he could not with integrity resist the whole demand, could resist the excess of the demand above the just amount. Or if a prosecutor urges the guilt of a prisoner, and attempts to procure the infliction of an undue punishment, a pleader, though he knows the prisoner's guilt, may rightly prevent a sentence too severe. Murray the grammarian had been a barrister in America: "I do not recollect," says he, "that I ever encouraged a client to proceed at law when I thought his cause was unjust or indefensible; but in such cases, I believe it was my invariable practice to discourage litigation, and to recommend a peaceable settlement of differences. In the retrospect of this mode of practice, I have always had great satisfaction; and I am persuaded that a different procedure would have been the source of many painful recollections."* One serious consideration remains, the effect of the immorality of legal practice upon the personal character of the profession. “The lawyer who is frequently engaged in resisting what he strongly suspects to be just, in maintaining what he deems to be in strictness untenable, in advancing inconclusive reasoning, and seeking after flaws in the sound replies of his antagonists, can be preserved by nothing short of serious and invariable solicitude, from the risk of having the distinction between moral right and wrong almost erased from his mind." Is it indeed so? Tremendous is the risk. Is it indeed so? Then the custom which entails this fearful risk must infallibly be bad. Assuredly, no virtuous conduct tends to erase the distinctions between right and wrong from the mind. It is by no means certain, that if a lawyer were to enter upon life with a steady determination to act upon the principles of strict integrity, his experience would occasion any exception to the general rule that the path of virtue is the path of interest. The client who was conscious of the goodness of his cause would prefer the advocate whose known maxims of conduct gave weight to every cause that he undertook. When such a man appeared before a jury, they would attend to his statements and his reasonings with that confidence which integrity only can inspire. They would not make, as they now do, perpetual deductions from his averred facts: they would not be upon the watch, as they now are, to protect themselves from illusion, and casuistry, and misrepresentation. Such a man, I say, would have a weight of advocacy which no other qualification can supply; and upright clients, knowing this, would find it * Memoirs of Lindley Murray, p. 43. † Gisborne CHAP. 6.] PROMISES. 139 their interest to employ him. The majority of clients it is to be hoped are upright. Professional success therefore would probably follow. And if a few such pleaders, nay if one such pleader was established, the consequence might be beneficial and extensive to a degree which it is not easy to compute. It might soon become necessary for other pleaders to act upon the same principles, because clients would not intrust their interests to any but those whose characters would give weight to their advocacy. Thus even the profligate part of the profession might be reformed by motives of interest, if not from choice. Want of credit might be want of practice; for it might eventually be almost equivalent to the loss of a cause to intrust it to a bad man. The effects would extend to the public. If none but upright men could be efficient advocates, and if upright men would not advocate vicious causes, vicious causes would not be prosecuted. But if such be the probable or even the possible results of sterling integrity, if it might be the means of reforming the practice of a large and influential profession, and of almost exterminating wicked litigation from a people, the obligation to practise this integrity is proportionately great: the amount of depending good involves a corresponding amount of responsibility upon him who contributes to perpetuate the evil. CHAPTER VI. PROMISES-LIES A PROMISE is a contract, differing from such contracts as a lawyer would draw up, in the circumstance that ordinarily it is not written. The motive for signing a contract is to give assurance or security to the receiver that its terms will be fulfilled. The same motive is the inducement to a promise. The general obligation of promises needs little illustration, because it is not disputed. Men are not left without the consciousness that what they promise they ought to perform; and thus thousands, who can give no philosophical account of the matter, know, with certain assurance, that if they violate their engagements they violate the law of God. Some philosophers deduce the obligation of promises from the expediency of fulfilling them. Doubtless fulfilment is expedient; but there is a shorter and a safer road to truth. To promise and not to perform is to deceive; and deceit is peculiarly and especially condemned by Christianity. A lie has been defined to be "a breach of promise;" and since the Scriptures condemn lying, they condemn breaches of promise. Persons sometimes deceive others by making a promise in a sense different from that in which they know it will be understood. They hope this species of deceit is less criminal than breaking their word, and wish to gain the advantage of deceiving without its guilt. They dislike the shame, but perform the act. A son has abandoned his father's house, and the father promises that if he returns he shall be received with open arms. The son returns: the father "opens his arms" to receive him, and then proceeds to treat him with rigour. This father falsifies his promise as truly as if he had specifically engaged to treat him with kindness |