Chapter 3

But judicial is much worse than legislative retrospection in another aspect. The act of Assembly, if carefully worded, is at least a certain rule. The act of the judicial legislature is invariably the precursor of uncertainty and confusion. Apply to it a test, which may be set down as unerring, never failing soon to discover the true metal from the base counterfeit: its effect upon litigation. A decision in conformity to established precedents is the mother of repose on that subject; but one that departs from them throws the professional mind at sea without chart or compass. The cautious counsellor will be compelled to say to his client that he cannot advise. One cause is the general uncertainty to which it leads. Men will persuade themselves easily, when it is their interest to be persuaded, that if one well-established rule has been overthrown, another, believed to be quite as wrong and perhaps not so well fortified by time and subsequent cases, may share the same fate. Shall counsel risk advising his client not to prosecute his claim or defence, when another bolder than he, may moot the point and conduct another cause resting upon the same question to a successful termination? The very foundations of confidence and security are shaken. The law becomes a lottery, in which every man feels disposed to try his chance. Another cause of this uncertainty is more particular. A court scarcely ever makes an open and direct overthrow of a deeply founded rule at one stroke. It requires repeated blows. It can be seen to be in danger, but not whether it is finally to fall. Hence it frequently happens that there is a sliding scale of cases; and when the final overthrow comes, it is very difficult to determine, whether any and which steps of the process remain. Shortly after the decision in Post _v._ Avery, the case of Fraley _v._ Bispham was tried in one of the inferior courts; in which the Judge, thinking that Post _v._ Avery, however the intention may have been disclaimed, did in fact overrule Steele _v._ The Ph[oe]nix, rejected as incompetent one of the nominal plaintiffs, a retiring partner, who upon dissolution had sold out for a price _bona fide_ paid, all his interest in the firm to his copartners, who continued the business. A motion was made for a new trial, and before the rule came on to be heard, Patterson _v._ Reed (7 W. & S. 144) had appeared, and the court, on the authority of that case, which decided that an assignment must be colorable and made for the purpose of rendering the assignor a witness in order to exclude him, ordered a new trial. Before the case was again called for trial, the first volume of Barr's Reports had been published, in which the Supreme Court said: "The time is come, when the doctrine of Steele _v._ The Ph[oe]nix Ins. Co. must be exploded altogether. The essential interests of justice demand that the decision in that case be no longer a precedent for anything whatever." (McClelland _v._ Mahon, 1 Barr, 364.) And the Judge before whom the cause was then tried had no other course left, but again to reject the witness, the very same thing on account of which a new trial had been ordered.

The case of Post _v._ Avery is a most striking illustration of judicial legislation and its mischievous results. It is usual to hear it excused on account of the unequal and unjust operation of the rule reversed, by which one party was heard but not the other, and the temptation it held out for the manufacture of false claims, to be supported by perjury. But it is to lose sight of the real question involved to raise such an issue: for, like the execution of a notorious culprit by the expeditious process of a mob and a lamp-post, instead of the formalities and delays of law and courts, it may be a very good thing for the community to have rid itself of the offender, but the way by which it was accomplished was a heavy blow at the very root of the tree of public and private security.

There is another decision of the Supreme Court of Pennsylvania, not so bold and avowed an act of judicial legislation as that just mentioned, but not less transparent, which may be cited as strongly illustrating the same consequences of uncertainty and litigation flowing from a disregard of the principle adverted to. From the year 1794, there had existed in Pennsylvania an act of Assembly limiting the lien of the debts of a decedent on his real estate, at first to seven, afterwards to five years. No question ever arose before the court in regard to it. Lien was considered to mean lien and not obligation: lands to be subject to execution for all debts of the owner prosecuted to judgment, and of course not barred by the Statute of Limitations; and the limitation of the lien merely intended for the protection of purchasers from the heirs or devisees or their lien creditors. Such was recognized to be the true meaning of the law in 1795 (Hannum _v._ Spear, 1 Yeats, 566), and so distinctly ruled in 1830 (Bruch _v._ Lantz, 2 Rawle, 392); yet on grounds palpably only relevant to what, in the opinion of the court, the law ought to be, it was held in 1832, in Kerper _v._ Hoch (1 Watts, 9), that the period named was a limitation not of the lien but of the debt itself, and available in favor of heirs and devisees, volunteers under the debtor and succeeding to his rights _cum onere_. As we have seen, but two cases are to be produced of litigation arising out of this law carried to the highest tribunal from 1794 to 1832. More than twenty cases are to be found reported since, in which that court has been called upon to draw distinctions and settle the precise extent of their own law. Thus a little complicated system has grown up on this construction of the act. A volume, indeed, might be written on Kerper _v._ Hoch and its satellites, when if the act had been let alone to speak for itself, and the prior decision followed, it would have been a simple and intelligible rule of action, until the legislature saw fit to alter it. It seems that this consideration pressed upon at least one of the judges, who joined in that decision; for in a subsequent case, when Kerper _v._ Hoch was cited, that Judge, with characteristic candor, interrupted the counsel with the remark: "We will abide by the rule, but it was erroneously decided." (Hocker's Appeal, 4 Barr, 498.)

This, then, is the legitimate province of Jurisprudence, _Stare super antiquas vias_, to maintain the ancient landmarks, to respect authority, to guard the integrity of the law as a science, that it may be a certain rule of decision, and promote that security of life, liberty, and property, which, as we have seen, is the great end of human society and government. Thus industry will receive its best encouragement; thus enterprise will be most surely stimulated; thus constant additions to capital by savings will be promoted; thus the living will be content in the feeling that their earnings are safely invested; and the dying be consoled with the reflection that the widow and orphan are left under the care and protection of a government, which administers impartial justice according to established laws.

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

PROFESSIONAL ETHICS.

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

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

The object of this Essay is to arrive at some accurate and intelligible rules by which to guide and govern the conduct of professional life. It would not be a difficult task to declaim in general propositions--to erect a perfect standard and leave the practitioner to make his own application to particular cases. It is a difficult task, however, as it always is in practice, to determine the precise extent of a principle, so as to know when it is encountered and overcome by another--to weigh the respective force of duties which appear to come in conflict. In all the walks of life men have frequently to do this: in none so often as at the Bar.

The responsibilities, legal and moral, of the lawyer, arise from his relations to the court, to his professional brethren and to his client. It is in this order that it is proposed to consider and discuss the various topics which grow out of this subject.

The oath directed by law in this State to be administered upon the admission of an attorney to the bar, "to behave himself in the office of attorney according to the best of his learning and ability, and with all good fidelity, as well to the court as to the client; that he will use no falsehood, nor delay any man's cause for lucre or malice," presents a comprehensive summary of his duties as a practitioner.[1]

Fidelity to the court, fidelity to the client, fidelity to the claims of truth and honor: these are the matters comprised in the oath of office.

It is an oath of office, and the practitioner, the incumbent of an office--an office in the administration of justice[2]--held by authority from those who represent in her tribunals the majesty of the commonwealth, a majesty truly more august than that of kings or emperors. It is an office, too, clothed with many privileges--privileges, some of which are conceded to no other class or profession.[3] It is, therefore, that the legislature have seen fit to require that there should be added to the solemnity of the responsibility, which every man virtually incurs when he enters upon the practice of his profession, the higher and more impressive sanction of an appeal to the Searcher of all Hearts.

Fidelity to the court, requires outward respect in words and actions. The oath as it has been said, undoubtedly looks to nothing like allegiance to the person of the judge; unless in those cases where his person is so inseparable from his office, that an insult to the one, is an indignity to the other. In matters collateral to official duty, the judge is on a level with the members of the bar, as he is with his fellow-citizens; his title to distinction and respect resting on no other foundation, than his virtues and qualities as a man.[4] There are occasions, no doubt, when duty to the interests confided to the charge of the advocate demands firm and decided opposition to the views expressed or the course pursued by the court, nay, even manly and open remonstrance; but this duty may be faithfully performed, and yet that outward respect be preserved, which is here inculcated. Counsel should ever remember how necessary it is for the dignified and honorable administration of justice, upon which the dignity and honor of their profession entirely depend, that the courts and the members of the courts, should be regarded with respect by the suitors and people; that on all occasions of difficulty or danger to that department of government, they should have the good opinion and confidence of the public on their side. Good men of all parties prefer to live in a country, in which justice according to law is impartially administered. Counsel should bear in mind also the wearisomeness of a judge's office; how much he sees and hears in the course of a long session, to try his temper and patience. Lord Campbell has remarked that it is rather difficult for a judge altogether to escape the imputation of discourtesy if he properly values the public time; for one of his duties is to "render it disagreeable to counsel to talk nonsense." Respectful submission, nay, most frequently, even cheerful acquiescence in a decision, when, as is most generally the case, no good result to his cause can grow from any other course, is the part of true wisdom as well as civility. An exception may be noted to the opinion of the Bench, as easily in an agreeable and polite, as in a contemptuous and insulting manner. The excitement of the trial of a cause caused by the conflict of testimony, making often the probabilities of success to vibrate backwards and forwards with as much apparent uncertainty as the chances in a game of hazard, is no doubt often the reason and apology for apparent disrespect in manner and language; but let it be observed, that petulance in conflicts with the Bench, which renders the trial of causes disagreeable to all concerned, has most generally an injurious effect upon the interests of clients.

Indeed, it is highly important that the temper of an advocate should be always equal. He should most carefully aim to repress everything like excitability or irritability. When passion is allowed to prevail, the judgment is dethroned. Words are spoken, or things done, which the parties afterwards wish could be unsaid or undone. Equanimity and self-possession are qualities of unspeakable value. An anecdote may serve to illustrate this remark. There was a gentleman of the Bar of Philadelphia, many years ago, who possessed these qualities in a very remarkable degree. He allowed nothing that occurred in a cause to disturb or surprise him. On an occasion in one of the neighboring counties, the circuit of which it was his custom to ride, he was trying a cause on a bond, when a witness for defendant was introduced, who testified that the defendant had taken the amount of the bond, which was quite a large sum, from his residence to that of the obligee, a distance of several miles, and paid him in silver in his presence. The evidence was totally unexpected; his clients were orphan children; all their fortune was staked on this case. The witness had not yet committed himself as to how the money was carried. Without any discomposure--without lifting his eyes or pen from paper--he made on the margin of his notes of trial a calculation of what that amount in silver would weigh; and when it came his turn to cross-examine, calmly proceeded to make the witness repeat his testimony step by step,--when, where, how, and how far the money was carried--and then asked him if he knew how much that sum of money weighed, and upon naming the amount, so confounded the witness, party, and counsel engaged for the defendant, that the defence was at once abandoned, and a verdict for the plaintiff rendered on the spot.[5]

Another plain duty of counsel is to present every thing in the cause to the court openly in the course of the public discharge of its duties. It is not often, indeed, that gentlemen of the Bar so far forget themselves as to attempt to exert privately an influence upon the judge, to seek private interviews, or take occasional opportunities of accidental or social meetings to make _ex parte_ statements, or to endeavor to impress their views. They know that such conduct is wrong in itself, and has a tendency to impair confidence in the administration of justice, which ought not only to be pure but unsuspected. A judge will do right to avoid social intercourse with those who obtrude such unwelcome matters upon his moments of relaxation. There is one thing, however, of which gentlemen of the Bar are not sufficiently careful,--to discourage and prohibit their clients from pursuing a similar course. The position of the judge in relation to a cause under such circumstances is very embarrassing, especially, as is often the case, if he hears a good deal about the matter before he discovers the nature of the business and object of the call upon him. Often the main purpose of such visits is not so much to plead the cause, as to show the judge who the party is--an acquaintance, perhaps--and thus, at least, to interest his feelings. Counsel should set their faces against all undue influences of the sort; they are unfaithful to the court, if they allow any improper means of the kind to be resorted to. _Judicem nec de obtinendo jure orari oportet nec de injuria exorari._ It may be in place to remark here that the counsel in a cause ought to avoid all unnecessary communication with the jurors before or during any trial in which he may be concerned. He should enforce the same duty upon his client. Any attempt by an attorney to influence a juror by arguments or otherwise, will, of course, if discovered and brought to the notice of the court, lead to expulsion or suspension from the Bar, according to the degree and quality of the offence. The freedom of the jury-box from extraneous influences is a matter of such vital moment in our system that the courts are bound to watch over it with jealous eyes. "It would be an injury to the administration of justice," says C. J. Tilghman, "not to declare that it is gross misbehavior for any person to speak with a juror, or for a juror to permit any person to speak with him, respecting the cause he is trying, at any time after he is summoned and before the verdict is delivered." "The words thus uttered," says Judge Hare, "by one of the best men and purest magistrates that ever filled the judicial office, must find an echo in every bosom. The principle which dictated them does not require the aid of argument or elucidation; it is native to the conscience, and will be apparent to all who consult the monitor in their own breast. The wrong is aggravated when the taint of personal interest mingles with it, as when committed by a party to the cause, but appears in the worst form when it is the act of attorneys or counsel, who are the sworn officers of the court, whose duty it is to act as guardians of the fountains of justice, and who are false to their charge when they defile or taint those waters, which they are pledged to keep pure and unpolluted. Such conduct in counsel is a gross breach of trust, for which a removal from the trust is but an inadequate punishment."[6]

There is another duty to the court, and that is, to support and maintain it in its proper province wherever it comes in conflict with the co-ordinate tribunal--the jury. The limits of these two provinces are settled with great accuracy; and even if a judge makes a mistake, the only proper place to correct his error is in the superior tribunal,--the Court of Errors. It has been held in a multitude of cases, that verdicts against the charge of the court in point of law, will be set aside without limitation as to the number of times, and that without regard to the question whether the direction of the court in point of law was right or wrong. There is a technical reason, which makes this course in all cases imperative. The losing party, if the jury were allowed to decide the law for him, would be deprived of his exception, and of his unquestionable right to have the law of his case pronounced upon by the Supreme Court. _Ad questiones juris respondeant judices,--ad questiones facti juratores._ A disregard by the jury of the law, as laid down by the judge, is always therefore followed by additional and unnecessary delay and expense, and it is never an advantage to a party in the long run to obtain a verdict in opposition to the direction of the court.[7] It is best for counsel to say in such cases, where nothing is left by the charge to the jury, that they do not ask for a verdict. It has a fair, candid, and manly aspect towards court, jury, opposite party, and even client. Instances of counsel urging or endeavoring to persuade a jury to disregard the charge may sometimes occur, but they are exceedingly rare when there is good feeling between the Bench and the Bar, and when the members of the profession have just and enlightened views of their duty as well as interest.

It need hardly be added that a practitioner ought to be particularly cautious, in all his dealings with the court, to use no deceit, imposition, or evasion--to make no statements of facts which he does not know or believe to be true--to distinguish carefully what lies in his own knowledge from what he has merely derived from his instructions--to present no paper-books intentionally garbled. "Sir Matthew Hale abhorred," says his biographer, "those too common faults of misrepresenting evidence, quoting precedents or books falsely, or asserting anything confidently by which ignorant juries and weak judges are too often wrought upon."[8] One such false step in a young lawyer will do him an injury in the opinion of the Bench and of his professional brethren, which it will take years to redeem, if indeed it ever can be entirely redeemed.

A very great part of a man's comfort, as well as of his success at the Bar, depends upon his relations with his professional brethren. With them he is in daily necessary intercourse, and he must have their respect and confidence, if he wishes to sail along in smooth waters. He cannot be too particular in keeping faithfully and liberally every promise or engagement he may make to them. One whose perfect truthfulness is even suspected by his brethren at the Bar has always an uneasy time of it. He will be constantly mortified by observing precautions taken with him which are not used with others. It is not only morally wrong but dangerous to mislead an opponent, or put him on a wrong scent in regard to the case. It would be going too far to say that it is ever advisable to expose the weakness of a client's cause to an adversary, who may be unscrupulous in taking advantage of it; but it may be safely said, that he who sits down deliberately to plot a surprise upon his opponent, and which he knows can succeed only by its being a surprise, deserves to fall, and in all probability will fall, into the trap which his own hands have laid. "Whoso diggeth a pit," says the wise man, "shall fall therein, and he that rolleth a stone, it will return upon him." If he should succeed, he will have gained with his success not the admiration and esteem, but the distrust and dislike of one of his associates as long as he lives. He should never unnecessarily have a personal difficulty with a professional brother. He should neither give nor provoke insult. Nowhere more than at the Bar is that advice valuable:

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