Chapter 7

Let us look at what would be the results of such a practice, if it became general. If these are bad, if its tendency is to corrupt and degrade the character of the profession, then, however confident any man may feel in his moral power to ward off its evil influences from his own character and conduct, he should be careful not to encourage and give countenance to it by his example.

It is one of that class of actions, which in particular instances may be indifferent; but their morality is to be tested by considering what would be the consequences of their general prevalence.

It is to be observed, then, that such a contract changes entirely the relation of counsel, to the cause. It reduces him from his high position of an officer of the court and a minister of justice, to that of a party litigating his own claim. Having now a deep personal interest in the event of the controversy, he will cease to consider himself subject to the ordinary rules of professional conduct. He is tempted to make success, at all hazards and by all means, the sole end of his exertions. He becomes blind to the merits of the case, and would find it difficult to persuade himself, no matter what state of facts might be developed in the progress of the proceedings, as to the true character of the transaction, that it was his duty to retire from it.

It places his client and himself in a new and dangerous relation. They are no longer attorney and client, but partners. He has now an interest, which gives him a right to speak as principal, not merely to advise as to the law, and abide by instructions. It is either unfair to him or unfair to the client. If he thinks the result doubtful, he throws all his time, learning, and skill away upon what, in his estimation, is an uncertain chance. He cannot work with the proper spirit in such a case. If he believes that the result will be success, he secures in this way a higher compensation than he is justly entitled to receive.

It is an undue encouragement to litigation. Men, who would not think of entering on a lawsuit, if they knew that they must compensate their lawyer whether they win or lose, are ready upon such a contingent agreement to try their chances with any kind of a claim. It makes the law more of a lottery than it is.

The worst consequence is yet to be told,--its effect upon, professional character. It turns lawyers into higglers with their clients. Of course it is not meant that these are always its actual results; but they are its inevitable tendencies,--in many instances its practical working. To drive a favorable bargain with the suitor in the first place, the difficulties of the case are magnified and multiplied, and advantage taken of that very confidence, which led him to intrust his interests to the protection of the advocate.[53] The parties are necessarily not on an equal footing in making such a bargain. A high sense of honor may prevent counsel from abusing his position and knowledge; but all have not such high and nice sense of honor. If our example goes towards making the practice of agreements for contingent fees general, we assist in placing such temptations in the way of our professional brethren of all degrees--the young, the inexperienced, and the unwary, as well as those whose age and experience have taught them that a lawyer's honor is his brightest jewel, and to be guarded from being sullied, even by the breath of suspicion, with the most sedulous care.

A gentleman of the largest experience and highest character for integrity and learning at the Philadelphia Bar, thus strongly confirms the views which have been here expressed on the subject of contingent fees: "And further," says Mr. Price in his concluding advice to students, at the close of his Essay on Limitation and Lien, "permit me to advise and earnestly to admonish you, for the preservation of professional honor and integrity, to avoid the temptation of bargaining for fees or shares of any estate or other claim, contingent upon a successful recovery. The practice directly leads to a disturbance of the peace of society and to an infidelity to the professional obligation promised to the court, in which is implied an absence of desire or effort of one in the ministry of the Temple of Justice, to obtain a success that is not just as well as lawful. It is true, as a just equivalent for many cases honorably advocated and incompetently paid by the poor, a compensation may and will be received, the more liberal because of the ability produced by success; but let it be the result of no bargain, exacted as a price before the service is rendered, but rather the grateful return for benefits already conferred. If rigid in your terms, in protection of the right of the profession to a just and honorable compensation, let it rather be in the amount of the required retainer, when it will have its proper influence in the discouragement of litigation."

A lawyer should avoid, as far as possible, all transactions of business with his clients, not only in regard to matters in suit in his hands, but in relation to other matters. He should avoid standing toward them, either in the relation of borrower or lender. A young practitioner should especially avoid borrowing of any one. Let him retrench, seek the humblest employment of drudgery rather than do it; but, if borrow he must, let it be of any one else than a client. All transactions of business between attorney and client are looked upon with eyes of suspicion and disfavor, in courts of justice.

It is a settled doctrine of equity, in England, that an attorney cannot, while the business is unfinished in which he had been employed, receive any gift from his client, or bind his client in any mode to make him greater compensation for his services than he would have a right to demand if no contract should be made during the relation. If an attorney accept a gift from one thus connected with him, it may be recovered in a court of chancery, by the donor or his creditors, should it be necessary for them to assert a right to it to satisfy their demands. When the relation of solicitor and client exists, and a security is taken by the solicitor from his client, the presumption is that the transaction is unfair; and the onus of proving its fairness is upon the solicitor.[54] A man ought to be very careful of placing himself in a position to have any of his transactions regarded in that light. If it should ever come to be canvassed in court, the bandying of the phrases, fraud and presumption of fraud, as applied to him, may, and probably will, have an unfavorable effect on his reputation. Most emphatically should it be said, let nothing tempt him, not even the knowledge and consent of the client, to keep the money, which may have come to his hands professionally, one single instant longer than is absolutely necessary. The consequences of any difficulty arising upon this head, will be fatal to his professional character and prospects.

The official oath, to which reference has already more than once been made, obliges the attorney "to use no falsehood." It seems scarcely necessary to enforce this topic. Truth in all its simplicity--truth to the court, client, and adversary--should be indeed the polar star of the lawyer. The influence of only slight deviations from truth, upon professional character, is very observable. A man may as well be detected in a great as a little lie. A single discovery, among professional brethren, of a failure of truthfulness, makes a man the object of distrust, subjects him to constant mortification, and soon this want of confidence extends itself beyond the Bar to those who employ the Bar. That lawyer's case is truly pitiable, upon the escutcheon of whose honesty or truth, rests the slightest tarnish.

Let it be remembered and treasured in the heart of every student, that no man can ever be a truly great lawyer, who is not in every sense of the word, a good man. A lawyer, without the most sterling integrity, may shine for a while with meteoric splendor; but his light will soon go out in blackness of darkness. It is not in every man's power to rise to eminence by distinguished abilities. It is in every man's power, with few exceptions, to attain respectability, competence, and usefulness. The temptations which beset a young man in the outset of his professional life, especially if he is in absolute dependence upon business for his subsistence, are very great. The strictest principles of integrity and honor, are his only safety. Let him begin by swerving from truth or fairness, in small particulars, he will find his character gone--whispered away, before he knows it. Such an one may not indeed be irrecoverably lost; but it will be years before he will be able to regain a firm foothold. There is no profession, in which moral character is so soon fixed, as in that of the law; there is none in which it is subjected to severer scrutiny by the public. It is well, that it is so. The things we hold dearest on earth,--our fortunes, reputations, domestic peace, the future of those dearest to us, nay, our liberty and life itself, we confide to the integrity of our legal counsellors and advocates. Their character must be not only without a stain, but without suspicion. From the very commencement of a lawyer's career, let him cultivate, above all things, truth, simplicity, and candor: they are the cardinal virtues of a lawyer. Let him always seek to have a clear understanding of his object: be sure it is honest and right, and then march directly to it. The covert, indirect, and insidious way of doing anything, is always the wrong way. It gradually hardens the moral faculties, renders obtuse the perception of right and wrong in human actions, weighs everything in the balances of worldly policy, and ends most generally, in the practical adoption of the vile maxim, "that the end sanctifies the means." If it be true, as he has said, who, more than any mere man, before or since his day, understood the depths of human character, that one even may,

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

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

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

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

While such are the depths to which a lawyer may sink, look, on the other hand, at the noble eminence of honor, usefulness, and virtue, to which he may rise. Where is the profession, which, in this world, holds out brighter rewards? Genius, indeed, will leave its mark in whatever sphere it may move. But learning, industry, and integrity, stand nowhere on safer or higher ground, than in the walks of the law. In all free countries, it is the avenue not only to wealth, but to political influence and distinction. In England, a large proportion of the house of peers, owe their seats and dignities, as well as their possessions, either to their own professional success, or to that of some one of their ancestors.[55] In this country, all our Presidents but three, have been educated to the Bar. Of the men who have distinguished themselves in the cabinet, in the halls of legislation, and in foreign diplomacy, how large is the proportion of lawyers! How powerful has always been the profession in guiding the popular mind, in forming that greatest of all counterchecks to bad laws and bad administration,--public opinion! It is the school of eloquence--that, which more than all else besides, has swayed, still sways, and always will sway, the destinies of free peoples. Let a man, to the possession of this noble faculty, add the high character of purity and justice, integrity and honor, and where are to be found the limits of his moral power over his fellow-citizens?[56] It is well to read carefully and frequently, the biographies of eminent lawyers. It is good to rise from the perusal of the studies and labors, the trials and conflicts, the difficulties and triumphs, of such men, in the actual battle of life, with the secret feeling of dissatisfaction with ourselves. Such a sadness in the bosom of a young student, is like the tears of Thucydides, when he heard Herodotus read his history at the Olympic Games, and receive the plaudits of assembled Greece. It is the natural prelude to severer self-denial, to more assiduous study, to more self-sustaining confidence. Some one has recommended that Middleton's Life of Cicero should be perused, at frequent intervals, as the vivid picture of a truly great mind, in the midst of the most stirring scenes, ever intent upon its own cultivation and advancement, as its only true glory; and that in effect sketched by his own master hand.[57] The autobiography of Edward Gibbon will rouse an ambitious student like the sound of a trumpet. But of English biographies, there is no one, it occurs to me, better adapted to the purpose mentioned, than the Life of Sir William Jones, by Lord Teignmouth. It exhibits the wonders, which unremitted study, upheld by the pure and noble ambition of doing good, can accomplish in the space of a short life. He was a man of the most varied knowledge. An extensive and indeed extraordinary acquaintance with ancient and modern languages, was perhaps his chief accomplishment. Although he engaged very late in life in the study of the law, such was his industry and success, that he soon occupied the highest judicial station, in British India; and the profession are indebted to his pen, for one of the most beautiful of the elementary treatises, which adorn the lawyer's library. "In his early days," says his biographer, "he seems to have entered upon his career of study, with this maxim strongly impressed upon his mind, that whatever had been attained, was attainable by him; and it has been remarked, that he never neglected nor overlooked any opportunity of improving his intellectual faculties, or of acquiring esteemed accomplishments." Notwithstanding his numerous occupations at the Bar at home, the onerous duties of his station in India, and his premature death, before he had attained his forty-eighth year, he has left behind many learned works, which illustrate Oriental languages and history, and attest the extent of his labors and acquisitions. Indeed, it might be regarded as impossible, were we not informed of the regular allotment which he made of his time to particular occupations, and his scrupulous adherence to the distribution he had thus made. The moral character of this eminent man, was no less exemplary. It is the testimony of one of his contemporaries: "He had more virtues and less faults, than I ever yet knew in any human being; and the goodness of his head, admirable as it was, was exceeded by that of his heart." His own measure of true greatness, humanly speaking, he has left behind him, in very emphatic words: "If I am asked, who is the greatest man? I answer, the best. And if I am required to say, who is the best? I reply, he that has deserved most of his fellow-creatures."[58]

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

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

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

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

Is it possible that a being so fearfully and wonderfully made as man, and animated by a spirit still more fearful and incomprehensible, was created for the brief term of a few revolutions of the planet he lives on? Shall his own physical and intellectual productions so long survive him? The massive piles of Egypt have endured for thousands of years: fluted column and sculptured architrave have stood for generations, monuments of his labor and skill. A poem of Homer, an oration of Demosthenes, an ode of Horace, a letter of Cicero, carry down to the remotest posterity the memorial of their names. Men found empires, establish constitutions, promulgate codes of laws; there have been Solons, Alexanders, Justinians, and Napoleons. There have been those justly called Fathers of their country, and benefactors of their race. Have they, too, sunk to become clods of the valley? The mind, which can look so far before and after--can subdue to its mastery the savages of the forests, and the fiercer elements of Nature--can stamp the creation of its genius upon the living canvas, or the almost breathing, speaking marble--can marshal the invisible vibrations of air into soul-stirring or soul-subduing music--can pour forth an eloquence of words, with magic power to lash the passions of many hearts into a raging whirlwind, or command them with a "peace, be still"--can make a book, a little book, which shall outlive pyramids and temples, cities and empires--can perceive and love beauty, in all its forms, and above all, moral beauty, and God, the infinite perfection of moral beauty,--no, this mind can never die. Its moral progress must go on in an unending existence, of which its life of fourscore years on earth is scarce the childhood. Let us beware then of raising these objects of ambition, wealth, learning, honor, and influence, worthy though they be, into an undue importance; nor in the too ardent pursuit of what are only means, lose sight of the great end of our being.

APPENDIX.

No. I.

COURVOISIER'S CASE[59]