Chapter 10

[3] See Austin's case, 5 Rawle, 203. "An attorney at law," says C. J. Gibson, "is an officer of the court. The terms of the oath, exacted of him at his admission to the bar, prove him to be so;" "you shall behave yourself in your _office_ of attorney," &c. Again: it is declared in the Constitution, Article 1st, sec. 18 (Art. 1, sec. 19, of the amended Constitution of 1838), that "no member of Congress, or other person holding any _office_ (except _attorney at law_, and in the militia), shall be a member of either House," &c., which is a direct constitutional recognition. Prior to the Act of 14th April, 1834, which expressly required from them an oath to support the Constitution of the United States and the Constitution of the Commonwealth of Pennsylvania, attorneys at law were invariably held to be within the provisions of Art. 6, sect. 3, of the Constitution of the United States, and of Art. 8, of the Constitution of Pennsylvania, requiring all officers, executive and judicial, to take the oath to support those constitutions respectively. In Wood's case (1 Hopkins, 6), solicitors in chancery were held to be officers, within the meaning of a similar clause in the Constitution of New York. "The admission of an attorney, solicitor, or counsellor," says the opinion in that case, "is a general appointment to conduct causes before the courts: this station, thus conferred by public authority, has its peculiar powers, privileges, and duties, and thus becomes an office in the administration of justice." Leigh's case (1 Munford, 468), in which it was held, that attorneys are not officers, within the meaning of the statute of Virginia, requiring all persons holding any office, or place, under the commonwealth, to take an oath against duelling, does not perhaps conflict with this view. The case of Byrne's Admr's _v._ Stewart's Admr's (3 Desaus. 478), may, however, be found upon examination somewhat at variance--not the decision itself, but the views expressed by Chancellor Watres in his opinion. The case simply decided what would seem unquestionable, that the legislature had a right to prohibit any public officer, judicial or otherwise, from practising as an attorney or solicitor. The Chancellor said, "He (a solicitor) can he considered in no other light than that of a private agent for the citizens of the country, who may employ him to do their legal business in the courts; and although the law requires of him certain qualifications, and he receives a license from the judges, yet his office is no more a public one, than would be any other profession or trade, which the legislature might choose to subject to similar regulations, and which is the practice in many other countries. It cannot be doubted, that a man's trade or profession is his property; and if a law should be passed avowedly for the purpose of restraining any member of this bar, who was not a public officer, from exercising his profession, I should declare such law void." This is to assume high ground; but the idea that a man's profession or trade cannot be constitutionally interfered with by legislative enactments, seems scarcely tenable, and especially, so far as the profession of the law is concerned, in view of the absolute power with which every court is clothed, both as to the admission of their attorneys, and forejudging or striking them from the roll. Act of 14th April, 1834, s. 73 (Pamphlet Laws, 354). Courts of record and of general jurisdiction, are vested with exclusive power to regulate the conduct of their own officers, and in this respect their decisions are put on the same footing with that numerous class of cases, which is wisely confided to the legal discretion and judgment of the court, having jurisdiction over the subject-matter. Commonwealth _v._ The Judges, 5 Watts & Serg. 272; _Ex parte_ Burr, 9 Wheat. 531; _Ex parte_ Brown, 1 Howard (Miss.) Rep. 306; Perry _v._ State, 3 Iowa, 550; In the matter of Wills, 1 Mann, 392. "The power is one which ought to be exercised with great caution, but which is, we think, incidental to all courts, and necessary for the preservation of decorum and for the respectability of the profession." Marshall C. J. 9 Wheat. 531.

[4] Per Gibson, C. J., in Austin's case, 5 Rawle, 204.

[5] The exact weight of one hundred silver dollars of the old coinage is 85.9375 ounces; of the new coinage, 80 ounces.

[6] _Ex parte_ Carter, 1 Philada. Rep. 507. Blaike's Lessee _v._ Chambers, 1 Serg. & Rawle, 169.

[7] Court and juries have their respective spheres assigned to them, within which each is to act and move, without encroaching upon the jurisdiction or province of the other. In order, then, that jurors as well as others may know that the direction and decision of the court, on any question of law arising in the course of the trial of an issue of fact, is not to be disregarded, and that a verdict given against such direction, whatever it may be, can never avail anything, unless it be to occasion additional delay, trouble, and expense to the parties, as also to the public, the course of the court is to set the verdict aside, and to order a new trial. And a court, from whose decisions on questions of law, an appeal lies, by writ of error or otherwise, ought never to depart from this course; otherwise the party against whom the verdict is given loses the benefit of such appeal, and of having the question decided by the Appellate Court, which would be a most unjust and illegal deprivation of his right. Per Kennedy, J., in Flemming _v._ Marine Ins. Co. 4 Whart. 67. After two concurring verdicts against the direction of the court in point of law, a new trial will still be awarded. Commissioners of Berks County _v._ Ross, 3 Binn. 520. "Principles the most firmly established might be overturned, because a second jury were obstinate and rash enough to persevere in the errors of the first, in a matter confessed by all to be properly within the jurisdiction of the court; I mean the construction of the law arising from undisputed facts." Per Tilghman, C. J., Ibid. 524. It is not necessary to refer to the numerous cases, both in the English and American courts, which accord with these principles. A judicious selection of the leading ones is to be found in the note to 1 Wharton's Troubat & Haly, 529. The text and the note are confined, of course, to civil cases.

[8] Burnet's Life of Sir Matthew Hale, 72.

[9] An attorney is not answerable for every error or mistake; he ought not to be liable, in cases of reasonable doubt. Pitt _v._ Yalden, 4 Burrows, 2060. He shall be protected, when he acts with good faith, and to the best of his skill and knowledge. Gilbert _v._ Williams, 8 Mass. 57. The want of ordinary care and skill in such a person is gross negligence. Holmes _v._ Peck, 1 Rhode Island, Rep. 245; Cox _v._ Sullivan, 7 Georgia, 144; Pennington _v._ Yell, 6 Engl. 212. As between the client and the attorney, the responsibility of the latter is as great and as strict here as in any country when want of good faith or attention to the cause is alleged; but in the exercise of the discretionary power usually confided in this country, and especially when the client resides at a great distance, an attorney ought not to be held liable where he has acted honestly and in a way he thought was for the interest of his client. Lynch _v._ The Commonwealth, 16 Serg. & Rawle, 368; Stakely _v._ Robison, 10 Casey, 317. When, however, an attorney disobeys the lawful instructions of his client, and a loss ensues, for that loss the attorney is responsible. Gilbert _v._ Williams, 8 Mass. 57. If the holder of a note place it in the hands of an attorney-at-law, with instructions to bring suit upon it, and the attorney, acting under the honest impression that he would best promote the interests of his client by not bringing suit immediately, omits to do so, and the money is afterwards lost by the insolvency of the maker, the attorney is liable in an action against him; and the measure of damages is what might have been recovered from the maker of the note, if suit had been brought when the note was placed in the hands of the attorney for collection. Cox _v._ Livingston, 2 Watts. & Serg. 103; Wilcox _v._ Plummer, 4 Peters, 172. But a client has no right to control his attorney in the due and orderly conduct of a suit, and it is his duty to do what the court would order to be done, though his client instruct him otherwise. Anon., 1 Wendell, 108.

[10] An attorney is not compelled to appear for any one unless he takes his fee or backs the warrant. Anon., 1 Salk. 87. The attorney cannot determine the relation himself, to his client's detriment. Love _v._ Hall, 3 Yerger, 408. When a solicitor appointed by a party has acted as such, he cannot be displaced by the appointment of another, without an order of the court. Mumford _v._ Murray, 1 Hopkins, 369. After an attorney has entered his name upon the record, he cannot withdraw it without leave of the court; and until so withdrawn the service of a citation upon him in case of appeal is sufficient. United States _v._ Curry, 6 Howard, U. S. Rep. 106.

[11] A counsel, attorney, or solicitor, will in no case be permitted, even if he should be willing to do so, to divulge any matter which has been communicated to him in professional confidence. This is not his privilege, but the privilege of the client, and none but the client can waive it. Jenkinson _v._ The State, 5 Blackford, 465; Benjamin _v._ Coventry, 19 Wendell, 353; Parker _v._ Carter, 4 Munf. 273; Wilson _v._ Troup, 7 Johns. Ch. Rep. 25; Crosby _v._ Berger, 11 Paige, 377; Bank of Utica _v._ Mersereau, 3 Barbour Ch. Rep. 528; Aiken _v._ Kilburne, 27 Maine, 252; Crisler _v._ Garland, 11 Smedes & Marshall, 136; Chew _v._ The Farmers' Bank of Maryland, 2 Maryland Ch. Decis. 231. It will be found in some of these cases that though the counsel declined to be engaged for the client, yet the facts communicated were held confidential; the only exception recognized being where a purpose to perpetrate _in futuro_ a felony or an action _malum in se_ was disclosed. Bank of Utica _v._ Mersereau, 3 Barbour Ch. Rep. 377. In Moore _v._ Bray, 10 Barr, 519, it was held that communications of the object, for which an assignment of a mortgage was made, to a counsel concerned for the assignee, were privileged; although no question then arose as to the object of the assignment, and the counsel considered the communication in the light of a casual conversation. "The circle of protection," said Bell, J., "is not so narrow as to exclude communications a professional person may deem unimportant to the controversy, or the briefest and lightest talk the client may choose to indulge with his legal adviser, provided he regards him as such at the moment. To found a distinction on such a ground would be to measure the safety of the confiding party by the extent of his intelligence and knowledge, and to expose to betrayal those very anxieties, which prompt those in difficulty, to seek the ear of him in whom they trust in season and out of season."

[12] Burnet's Life of Hale, 1 Hale's Works, 59, 60. "He began," says Lord Campbell, "with the specious but impracticable rule of never pleading except on the right side, which would make the counsel to decide without knowing either facts or law, and would put an end to the administration of justice." 1 Lord Campbell's Lives of the Chief Justices, 412. There is the following curious note by Baxter in Burnet's Life of Hale. "And indeed Judge Hale would tell me that Bishop Usher was much prejudiced against lawyers because the worst causes find their advocates; but that he and Mr. Selden had convinced him of the reasons of it to his satisfaction; and that he did by acquaintance with them believe that there were as many honest men among lawyers, proportionably, as among any profession of men in England (not excepting bishops or divines)." 1 Hale's Works, 106.

[13] 2 Wynne's Eunomus, 557.

[14] "Although Serjeants have a monopoly of practice in the Common Pleas, they have a right to practice, and do practice, at this bar; and if we were to assign one of them as counsel, and he were to refuse to act, we should make bold to commit him to prison." Per C. J. Hale. 2 Campbell's Lives of the Chief Justices, 20; citing Freeman, 389; 2 Lev. 129; 3 Keble, 424, 439, 440.

[15] Let the circumstances against a prisoner be ever so atrocious, it is still the duty of the advocate to see that his client is convicted according to those rules and forms which the wisdom of the legislature have established, as the best protection of the liberty and security of the subject. Professor Christian's note to 4 Blackst. Com. 356. From the moment that any advocate can be permitted to say that he _will_ or will _not_ stand between the crown and the subject arraigned in the court where he daily sits to practise, from that moment the liberties of England are at an end. If the advocate refuses to defend from what _he may_ think of the charge or of the defence, he assumes the character of the judge, nay, he assumes it before the hour of judgment; and in proportion to his rank and reputation, puts the heavy influence of perhaps a mistaken opinion into the scale against the accused, in whose favor the benevolent principle of English law makes all presumptions, and which commands the very judge to be his counsel. Lord Erskine, 6 Campbell's Lives of the Chancellors, 361.

[16] Per Gibson, C. J., in Rush _v._ Cavenaugh, 2 Barr, 189.

[17] "There are many who know not how to defend their causes in judgment, and there are many who do, and therefore pleaders are necessary; so that that which the plaintiffs or actors cannot or know not how to do by themselves, they may do by their serjeants, attorneys, or friends." Mirr. of Justices, ch. 2, sec. v.

[18] Rush _v._ Cavenaugh, 2 Barr, 189. If the client in any suit furnishes his attorney with a plea which the attorney finds to be false, so that he cannot plead it for _the sake of_ his conscience, the attorney may plead in this case, _quod non fuit veraciter informatus_, and in so doing he does his duty. Jenkins, 52.

[19] Whewell's Elements of Moral and Political Science, vol. 1, p. 257.

[20] Law Magazine, February, 1850, May, 1854. Law Review, February, 1850. Several articles on the subject, taken from the English press, are to be found in Littell's Living Age, vol. 24, pp. 179, 230, 306. I have added, in an appendix, Mr. Phillips's vindication of himself from these charges, in his correspondence with his friend Mr. Warren, preceded by a brief statement of the case.

[21] The civil law will not allow a man to be convicted on his bare confession, not corroborated by evidence of his guilt; because there may be circumstances which may induce an innocent man to accuse himself. Bowyer's Commentaries, 355, note. Upon a simple and plain confession, the court hath nothing to do but to award judgment; but it is usually very backward in receiving and recording such confession out of tenderness to the life of the subject; and will generally advise the prisoner to retract it and plead to the indictment. 4 Blackst. Comm. 329. 2 Hale, P. C. 225.

[22] Per Story, J., in Williams _v._ Read, 3 Mason, 418.

[23] In enumerating the things to which every pleader of others' causes ought to have a regard, the Mirror of Justices says, "That he put no false dilatories into court, nor false witnesses, nor move or offer any false corruptive deceits, leasings, or false lies, nor consent to any such, but truly maintain his client's cause, so that it fail not by any negligence or default in him, nor by any threatening, hurt, or villany, disturb the judge, plaintiff, serjeant, or any other in court, whereby he hinder the right or the hearing of the cause." Chap. 2, s. 5. This is indeed in the very words of the serjeant's oath, and Lord Coke remarks that it consists of four parts: "1. That he shall well and truly serve the king's people, as one of the serjeants at law. 2. That he shall truly counsel them that he shall be retained with, after his cunning. 3. That he shall not defer, wait, or delay their causes willingly for covetousness of money, or other thing that may tend to his profit. 4. That he shall give due attendance accordingly." 2 Inst. 214.

[24] A pleader is suspendable when he is attainted to have received fees of two adversaries, in one cause. Mirror of Justices, chap. 2, sect. 5.

[25] "It is impossible to state a case, in which a witness should be treated roughly. If you attempt it, every one feels offended, in the person of the witness. You make your work more difficult; the witness shuts himself up, considers you as his enemy, and stands upon his defence: whereas, an open countenance, and an easy insinuating address, unlocks his breast, and disarms him of his caution, if he has any." Deinology, 228. This admirable little work, which has been attributed to the pen of Lord Erskine, cannot be too highly recommended to the student of law. The postscript, which suggests considerations on the _viva voce_ examination of witnesses, is particularly worthy a very attentive perusal.

[26] Preston on Estates, 2.

[27] Co. Litt. 71 _a._

[28] Ibid. 6 _a._

[29] Art. Edward Tilghman, in the Encyclopædia Americana, vol. xiv; The Leaders of the Old Bar of Philadelphia, 50. Let me recommend to the attention of the student a curious and interesting work, entitled "An introduction to the science of the law, showing the advantages of a legal education, grounded on the learning of Lord Coke's Commentaries, upon Littleton's Tenures, &c., by Frederick Ritso, Esq." There are few works of celebrity, in regard to which such opposite opinions have been maintained as the Commentaries of Sir William Blackstone. While some have expressed the most enthusiastic admiration, there have been others, like Mr. Austin, Professor of General Jurisprudence, in the University of London (Outlines of Lectures, 63), who have dealt in language of unsparing condemnation and contempt. Mr. Ritso thinks that "the error was in adopting them as an institute for the instruction and education of professional students, which was evidently no part of Blackstone's plan, nor within the scope of his engagement." In this point of view, he objects, that "he represents everything rather for effect, than with a view to demonstrate. Like the gnomon upon the sun-dial, he takes no account of any hours, but the serene:

Et quæ, Desperat tractata nitescere posse, relinquit.

In a professional point of view, this solicitude rather to captivate the imagination of the student, than to exercise and discipline the understanding, is equally unprofitable and inconvenient. It puts him off with ornamental illustration, instead of solid argument, and leads to a sort of half information, which is often much worse than no information at all upon the subject." There is some force in these remarks; yet, too many great lawyers have begun their studies with Blackstone, to leave any doubt that it is a proper first book. It paves the way for more repulsive, though more recondite and valuable works. I very much fear, indeed, that a disposition has existed of late years to repudiate Coke upon Littleton entirely. Chancellor Kent has shown his leaning in that direction (Comm. vol. i, 506, 512). I subscribe fully, however, to Mr. Butler's opinion: "He is the best lawyer, and will succeed best in his profession, who best understands Coke upon Littleton." It ought not, perhaps, to be placed in the hands of the student until he has made some progress in his reading of other works: but sooner or later, he should aim to master it. Lord Coke was, himself, deeply imbued with the love of his profession, and he is able to transfuse his own spirit into his readers. His method may be objectionable in some respects; but I cannot help thinking that the life of his work is gone when it is hacked to pieces, and then attempted to be fitted together again upon another man's skeleton. I have ventured to add in the Appendix (No. II), a sketch of such a course of reading, of not very extensive compass, as may with advantage be pursued by every young man after his admission to the Bar.

[30] Maddock's Chancery. Preface.

[31] Bowyer's Headings on the Canon Law, p. 44. Lord Campbell says that the person here mentioned was George Hardinge--a Welsh judge and nephew of Lord Camden. 5 Lives of the Chancellors, 20, 281. According to Lord Mahon, it was on the 15th of March, 1782, in the debate on a motion of Sir John Rouse, of want of confidence in the ministry after the surrender of Lord Cornwallis. He ascribes the remark to Sir James Marriott, but says that, although he was the assertor of this singular argument, the honor of its original invention seems rather to belong to Mr. Hardinge. 5 Mahon's Hist. 139.

[32] Gibbon's Decline and Fall of the Roman Empire, c. xliv.

[33] Continuus inde et sævus accusandis reis Sicilius, multique audaciæ ejus æmuli. Nam cuncta legum et magistratuum munia in se trahens Princeps, materiam prædandi patefecerat. Nec quidquam publicæ mercis tam venale fuit, quam advocatorum perfidia: adeo ut Samius insignis eques Romanus, quadringentis nummorum millibus, Sicilio datis, et cognita prevaricatione, ferro in domo ejus incubuerit. Igitur incipiente C. Silio consule designato, cujus de potentia et exitio in tempore memorabo, consurgunt patres, legemque Cinciam flagitant, qua cavetur antiquitus ne quis ob causam orandam pecuniam donumve accipiat. Tacit. Annul. 1. 11, c. 5.

[34] Chancellor Walworth, in Adams _v._ Stevens, 26 Wendell, 21. While expressing, as will be seen presently, the opinion that authority as well as sound policy would have led me to a different conclusion from that at which Chancellor Walworth arrived, it is proper to acknowledge that I have drawn largely upon his learned judgment in this case, and at the same time to express the high admiration I entertain for the ability with which the last of the New York Chancellors illustrated the chair where such truly great men had sat before him.

[35] Gibbon's Decline and Fall, c. xvii.

[36] 3 Blackst. Com. 28; Davis Pref. 22; 1 Chanc. Rep. 38; Davis, 23; Hodgson _v._ Scarlett, 1 B. & Ald. 232; Finch. L. 188; and see Butler's note to 1 Co. Litt. 295 a. So it is with the advocates in the civil law. Vost ad Pand. tit. de Postal. Numb. 6, 7, 8; Gravina de Oster. lib. 1, s. 42, 43, 44. Boucher D'Asyis, Hist. Abrégé de L'Order des Avocats, c. iv. See also the commencement of the Dialogue des Avocats du Parl. de Paris, by Loisil, which contains curious particulars throughout respecting the ancient French Bar. An amusing anecdote is related of Pasquier, the famous French advocate. In 1583, while he was attending the assizes (_les grands jours_) at Troyes, he sat for his portrait, and after the painter had finished the likeness, which Pasquier had not yet examined, he asked him to represent him with a book in his hand. The painter said that it was too late, as the picture was completed without hands. Upon this the witty lawyer immediately wrote the following lines as a motto for the portrait:

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

Forsyth's Hortensius, 424.

[37] The reader will find in the Appendix, No. III, an account of the different orders of the English Bar.

[38] In some States, the professions of attorney and counsellor at law are not distinct; the same person conducts the cause in all its stages; and it has not been considered that his authority ceases when judgment is obtained. The attorney is in some degree the agent as well as the attorney of the party. Huston, J., in Lynch _v._ The Commonwealth, 16 Serg. & Rawle, 368.

[39] Mooney _v._ Lloyd, 5 Serg. & Rawle, 416.