,making of ,america ,books ,collection of the ,university of ,michigan's ,digital ,library ,production ,service 7http3_/_/www4umdl4umich4edu_/7 ,note3 ,images of the original pages are available through the ,making of ,america ,books ,collection of the ,university of ,michigan's ,digital ,library ,production ,service4 ,see http3_/_/www4hti4umich4edu_/cgi_/t_/text _/text-idx8cmoa2idno,,ajf#bcea4jjja4jja ,transcriber's note3 ,minor typographical errors have been corrected without note4 ,the oe ligature has been transcribed as oe4 ,a table of contents1 though not present in the original1 has been provided below3 ,,preface4 ,,introduction4 ,,professional ,,ethics4 ,,appendix4 ,no4 ,i4 ,no4 ,,ii4 ,no4 ,,iii4 ,,professional ,,ethics4 ,,an ,,essay ,,on ,,professional ,,ethics4 by ,,george ,,sharswood4 ,id non eo tantum1 quod si vis illa dicendi malitiam instruxerit1 nihil sit publicis privatisque rebus perniciosius eloquentia3 sed nos quoque ipsi1 qui pro virile parte conferre aliquid ad facultatem dicendi conati sumus1 pessime mereamur de rebus humanis1 ,,si ,,latroni ,,comparemus ,,haec ,,arma1 ,,non ,,militi4 ,,quinct4 ,,de ,,inst4 ,,or4 ,second ,edition4 ,philadelphia3 ,t4 ,j4 ,w4 ,johnson ,co41 ,law ,booksellers and ,publishers1 ,no4 #ece ,chestnut ,street4 #ahfj4 ,entered1 according to ,act of ,congress1 in the year #ahfj1 by ,t4 ,j4 ,w4 ,johnson ,co41 in the ,clerk's ,office of the ,district ,court for the ,eastern ,district of ,penn'a4 ,c4 ,sherman ,son1 ,printers1 ,s4 ,w4 ,cor4 ,seventh and ,cherry ,streets1 ,philadelphia4 ,,to ,,my ,,honored ,,master1 ,,joseph ,r4 ,,ingersoll1 ,,ll4,d41 ,,inscribed ,,as ,a ,,testimony ,,of ,,respect ,,and ,,gratitude4 ,,preface4 ,the following ,essay was originally published under the title of ,a ,compend of ,lectures on the ,aims and ,duties of the ,profession of the ,law1 delivered before the ,law ,class of the ,university of ,pennsylvania4 ,a portion of it had been read by the author as an ,introductory ,lecture at the opening of the ,fifth ,session of the ,law ,department of that ,institution1 ,october #b;d1 #ahed4 ,the young gentlemen1 alumni1 and students of the school1 who were present on that occasion1 requested a copy for publication1 in order that each of them might possess a memento of their connection with the ,institution4 ,the author preferred to publish the entire ,compend than merely a part of it4 ,he hesitated much in doing so1 because the questions discussed are difficult1 and opinions upon them variant1 and he could scarcely hope that he had in every case succeeded in just discrimination4 ,a review of the matter now1 when a second edition has been called for1 has suggested1 however1 no important change in the principles advanced1 though a few additions have been made1 some inaccuracies corrected1 and an introduction upon the importance of the profession1 in a public point of view1 prefixed4 ,g4 ,s4 ,,introduction4 ,the dignity and importance of the ,profession of the ,law1 in a public point of view1 can hardly be over-estimated4 ,it is in its relation to society at large that it is proposed to consider it4 ,this may be done by showing its influence upon legislation and jurisprudence4 ,these are the right and left hands of government in carrying out the great purposes of society4 ,by legislation is meant the making of law--its primary enactment or subsequent alteration4 ,jurisprudence is the science of what the law is or means1 and its practical application to cases as they arise4 ,the province of legislation is jus dare--of jurisprudence1 jus dicere4 ,the latter is entirely in the hands of lawyers as a body--the former almost entirely4 ,legislation is indeed a nobler work than even jurisprudence4 ,it is the noblest work in which the intellectual powers of man can be engaged1 as it resembles most nearly the work of the ,deity4 ,it is employed as well in determining what is right or wrong in itself--the due proportion of injuries and their remedies or punishments--as in enforcing what is useful and expedient4 ,how wide the scope of such a work6 ,the power of society over its individual members1 or1 in other words1 sovereignty1 which is practically vested in the legislature1 is a type of the ,divine power which rules the physical and moral universe4 ,there is one ,lawgiver1 says the ,apostle ,james4 ,not that the ,supreme ,being is the sole universal lawgiver in the sense of a creator of law1 whose will alone determines the boundaries of right and wrong4 ,god is the creator of the beings who are the subjects of law4 ,he is the author of law--the one lawgiver--in the same sense that he1 who first discovered a plain figure1 may be said to be the author of all theorems1 which may be predicated of it4 ,he who first called attention to the curious curve1 made by a point in the periphery of a wheel as it turns on the ground1 is in a certain sense the discoverer of all the truths1 which may be mathematically demonstrated in respect to it4 ,law in its true sense is not the work of mere will--not an act of intellectual caprice4 ,it is a severe and necessary deduction from the relations of things4 ,the ,divine legislator sees and knows these relations perfectly4 ,he can draw no wrong deduction from them4 ,he can make no mistake4 ,whatever laws have certainly emanated from ,him are certainly right4 ,this is the sense in which it is true that there is one ,lawgiver3 all others but attempt the work2 ,he alone is competent to perform it4 ,there is no mathematical certainty in our reasoning on moral as there is on physical relations4 ,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 whatever4 ,the ,divine law is a deduction necessarily and mathematically certain as much so as any truth in geometry4 ,human law can aim only at such a probable deduction as results from a finite and imperfect knowledge4 ,the system of law delivered by ,moses to the ,jews deserves1 therefore1 the most careful study at the hands of all who believe him to have been a divinely commissioned lawgiver4 ,these laws were not intended for any other people than the ,israelites2 they were adapted to their circumstances1 climate1 country1 neighbors1 to the period of the world when they were promulgated1 and during which they were to prevail4 ,they were certainly not meant as a model for any other form of government1 for any other people1 or for any other time4 ,many laws are to be found there which are unnecessary and superfluous if applied elsewhere4 ,many actions1 innocent in themselves1 are prohibited4 ,all the mala prohibita are not mala in se4 ,but one thing is as clear as a sunbeam1 and that is a very important light to the student of ,ethics2 if ,god was the author of these laws1 nothing morally wrong was commanded or allowed by them4 ,when it was said of the ,jews through the prophet1 ,i gave them statutes which were not good1 it cannot mean not morally good2 laws which it would be sinful in them to obey4 ,the word in the original is not the word appropriated in that language to right1 conformity to rule1 but to goodness in its most general sense4 ,good statutes mean wise and expedient statutes4 ,by no process can the logical mind be brought to the conclusion that the perfectly wise and good lawgiver1 in framing a code of laws for any people1 would impose as a punishment for the hardness of their hearts1 a penalty1 submission to which would itself be punishable as a sin against the law of nature4 ,he might command or allow as such punishment what in itself was inexpedient and injurious to them1 and which upon the promulgation of a new law repealing the old and prohibiting what it allowed1 would become by the sanction of the same lawgiver thenceforth universally malum prohibitum4 ,the authority of ,god as a lawgiver is certainly not confined to a mere declaration of what is right or wrong by the law of ,nature4 ,there can be no merely arbitrary laws4 ,it is necessary to bear in mind that we are now considering the province of the legislator1 who ought to enact no law without an end4 ,civil legislative power1 says ,rutherforth 7,b4 ,,ii1 c4 vi1 s4 #aj71 is not in the strict sense of the word an absolute power of restraining or altering the rights of the subjects3 it is limited in its own nature to its proper objects1 to those rights only in which the common good of the society or of its several parts requires some restraint or alteration4 ,so that whenever we call the civil legislative power1 either of society in general or of a particular legislative body within any society1 an absolute legislative power1 we can only mean that it has no external check upon it in fact2 for all civil legislative power is in its own nature under an internal check of right3 it is a power of restraining or altering the rights of the subjects for the purpose of advancing or securing the general good1 and not of restraining or altering them for any purpose whatever1 and much less for no purpose at all4 ,there are1 therefore1 no arbitrary laws which fulfil the end of law4 ,doubtless the true objects of society and government may be mistaken by him who sets up to be law-maker1 or if those objects are properly appreciated1 the means for advancing them may be mistaken4 ,it is not wonderful that in a matter which demands the highest wisdom1 many should try and fail4 ,it becomes important to inquire what are the true ends of society and government8 ,man is a gregarious animal--a social being4 ,he may exist in solitude1 but he cannot enjoy life3 he cannot perfect his nature4 ,those who have watched and studied closely the habits of those irrational animals1 who live in communities1 as the ant1 the bee1 and the beaver1 have observed not only a settled system and subordination1 but the existence of some wonderful faculty1 like articulate speech1 by which communication takes place from one to another2 a power essential to order4 ,man1 the highest social animal in the scale of earthly being1 has also the noblest faculty of communication4 ,the final cause--the reason why man was made a social being--is that society was necessary to the perfection of his physical1 intellectual1 and moral powers1 in order to give the fullest return to the labor of his hands and to secure the greatest advances in knowledge and wisdom4 ,it is for no vain national power or glory1 for no experimental abstraction1 that governments are instituted among men4 ,it is for man as an individual4 ,it is to promote his development2 and in that consists his true happiness4 ,the proposition would be still more accurate were it said1 society is constituted that men may be free--free to develop themselves--free to seek their own happiness1 following their own instincts or conclusions4 ,without society--and government1 which of course results from it--men would not be free4 ,an individual in a state of isolation might defend himself from savage beasts1 and more savage men1 as long as his strength lasted1 but when sickness or age came on1 the product of the labor of his hands1 accumulated by a wise foresight to meet such a contingency1 would become the prey of the stronger4 ,the comparatively weak-minded and ignorant would be constantly subject to the frauds of the more cunning4 ,it is enough to look at the effects of the division of employments and the invention of labor-saving machinery1 to recognize the invaluable results of society in the development of wealth and power4 ,in a state of isolation a man's entire time and strength would be needed for the supply of his physical wants4 ,as men advance in knowledge and wisdom the standard of their mere physical wants is elevated4 ,they demand more spacious and comfortable dwellings1 more delicate viands and finer clothing4 ,allow not nature more than nature needs1 ,man's life is cheap as beasts'4 ,it is not true that men would be morally better or happier1 if their style of living were reduced to the greatest plainness consistent with bare comfort4 ,our taste in this respect1 as for the fine arts1 as it becomes more refined1 becomes more susceptible of high enjoyment4 ,when large fortunes are suddenly made by gambling1 or what is equivalent thereto1 then it is that baleful luxury is introduced--a style of living beyond the means of those who adopt it1 and spreading through all classes4 ,taste1 cultivated and enjoyed at the expense of morals1 degrades and debases instead of purifying and elevating character4 ,men1 who have accumulated wealth slowly by labor of mind or body1 do not spend it extravagantly4 ,if they use it liberally1 that creates no envy in their poorer neighbor1 no ruinous effort to equal what is recognized to be the due reward of industry and economy4 ,the luxury1 which corrupted and destroyed the republic of ,rome1 was the result of large fortunes suddenly acquired by the plunder of provinces1 the conquests of unjust wars4 ,the most fruitful source of it1 in our own day1 is what has been well termed class legislation--laws which either directly or indirectly are meant to favor particular classes of the community4 ,they are supported by popular reasons and specious arguments1 yet there is one test of the true character of such laws1 an experimentum crucis1 of which1 in general1 they cannot bear the application4 ,legislation1 which requires or which will pay to be bored or bought1 is unequal legislation2 and therefore unwise and unjust4 ,bentham's rule1 though false as the standard of right and wrong1 is in general the true rule of practical legislation1 the greatest good of the greatest number4 ,it is expressed with the most force and accuracy by that master of the science1 ,bynkershoek2 ,utilitas1 utilitas1 justi ,,prope mater et aequi3 in which observe that the word prope is emphatic4 ,legislation for classes violates this plain rule of equal justice1 and moreover does not1 in the long run1 benefit those for whom it is intended4 ,the indirect evils upon society at large are even more injurious than those which are direct4 ,men are often thus poor to-day and rich to-morrow4 ,the bubble1 while it dances in the sunbeam1 glitters with golden hues1 though destined almost immediately to burst and be seen no more4 ,what government owes to society1 and all it owes1 is the impartial administration of equal and just laws4 ,this produces security of life1 of liberty1 and of property4 ,it has become a favorite maxim1 that it is the duty of government to promote the happiness of the people4 ,the phrase may be interpreted so as to mean well1 but it is a very inaccurate and unhappy one4 ,it is the inalienable right of men to pursue their own happiness2 each man under such restraints of law as will leave every other man equally free to do the same4 ,the true and only true object of government is to secure this right4 ,the happiness of the people is the happiness of the individuals who compose the mass4 ,speaking now with reference to those objects only1 which human laws can reach and influence1 he is the happy man1 who sees his condition in life constantly and gradually1 though it may be slowly1 improving4 ,let government keep its hands off--do nothing in the way of creating the subject-matter of speculation--and things naturally fall into this channel4 ,there will be some speculators1 as there will be some gamblers2 but they will be few4 ,the stock market is filled with fancies1 which the government has manufactured and continues to manufacture to order4 ,it is the duty of government to encourage the accumulation of the savings of industry4 ,the best way to do so is to guard the strong box from the invasion of others1 and not itself to invade it4 ,property has an especial claim to protection against the government itself4 ,the power of taxation in the legislature is in fact a part of the eminent domain2 a power that must necessarily be reposed in the discretion of every government to furnish the means of its own existence4 ,one grievous invasion of property--and of course ultimately of labor1 from whose accumulations all property grows--is by government itself1 in the shape of taxation for objects not necessary for the common defence and general welfare4 ,men have a right not only to be well governed1 but to be cheaply governed--as cheaply as is consistent with the due maintenance of that security1 for which society was formed and government instituted4 ,this1 the sole legitimate end and object of law1 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 more4 ,to compel men to contribute of the earnings or accumulations of industry1 their own or inherited1 to objects beyond this1 not within the legitimate sphere of legislation1 to appropriate the money in the public treasury to such objects1 is a perversion and abuse of the powers of government1 little if anything short of legalized robbery4 ,what is the true province of legislation1 ought to be better understood4 ,it is worth while to remark1 that in every new and amended ,state constitution1 the bill of rights spreads over a larger space2 new as well as more stringent restrictions are placed upon legislation4 ,there is no danger of this being carried too far2 as ,chancellor ,kent appears to have apprehended that it might be4 ,there is not much danger of erring upon the side of too little law4 ,the world is notoriously too much governed4 ,legislators almost invariably aim at accomplishing too much4 ,representative democracies1 so far from being exempt from this vice1 are from their nature peculiarly liable to it4 ,annual legislatures--with generally two-thirds new members every year--increase the evil4 ,the members fall into the common mistake1 that their commission is to act1 not to decide in the first place whether action is necessary4 ,they would be blamed and ridiculed1 if they adjourned without doing something important4 ,hence the annual volumes of our ,acts of ,assembly are fearfully growing in bulk4 ,it is not merely of the extent of local legislation1 the vast multiplication of charters for every imaginable purpose1 or of the constantly recurring tampering with the most general subjects of interest1 finance1 revenue1 banking1 education1 pauperism1 c41 that there is reason to complain2 but scarce a session of one of our legislatures passes without rash and ill-considered alterations in the civil code1 vitally affecting private rights and relations4 ,such laws are frequently urged by men1 having causes pending1 who dare not boldly ask that a law should be made for their particular case1 but who do not hesitate to impose upon the legislature by plausible arguments the adoption of some general rule1 which by a retrospective construction1 will have the same operation4 ,it is a most monstrous practice1 which lawyers are bound by the true spirit of their oath of office1 and by a comprehensive view of their duty to the ,constitution and laws1 which they bear so large a part as well in making as administering1 to discountenance and prevent4 ,it is to be feared1 that sometimes it is the counsel of the party who recommends and carefully frames the bill1 which1 when enacted into a law1 is legislatively to decide the cause4 ,it is time that a resort to such a measure should be regarded in public estimation as a flagrant case of professional infidelity and misconduct4 ,this brief sketch of the true province of legislation is enough to evince its vast importance4 ,how great is the influence of the lawyers as a class upon legislation6 ,let any man look upon all that has been done in this department1 and trace it to its sources4 ,he will acknowledge that legislation1 good or bad1 springs from the ,bar4 ,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 conveyancers4 ,however more accurate and profound may be the learning of men1 whose studies are thus limited to one particular branch1 it is not to be regretted either on account of its influence on the science or the profession4 ,the ,american lawyer1 considering the compass of his varied duties1 and the probable call which will be made on him especially to enter the halls of legislation1 must be a ,jurist4 ,from the ranks of the ,bar1 more frequently than from any other profession1 are men called to fill the highest public stations in the service of the country1 at home and abroad4 ,the ,american lawyer must thus extend his researches into all parts of the science1 which has for its object human government and law3 he must study it in its grand outlines as well as in the filling up of details4 ,he is as frequently called upon to inquire what the law ought to be as what it is4 ,while a broad and marked line separates1 and always ought to separate the departments of ,legislation and ,jurisprudence1 it is a benefit to both that the same class of men should be engaged in both4 ,practice will thus be liberalized by theory1 and theory restrained and corrected by practice4 ,the mere abstractionist or doctrinaire would aim at the formation of a code of great simplicity3 the practitioner sees in it the parent of uncertainty and injustice4 ,legal propositions cannot be framed with the certainty of mathematical theories4 ,the most carefully studied language still leaves room for interpretation and construction4 ,time itself1 which works such mighty changes in all things1 produces a state of circumstances not in the mind of the lawgiver4 ,the existing system1 it may be1 is an unwieldy1 inconvenient structure1 heavy and grotesque from the mixed character of its architecture outwardly1 inwardly its space too much occupied and its inmates embarrassed by passages and circuities4 ,the abstractionist would at once demolish it1 and replace it by a light1 commodious and airy dwelling1 more symmetrical and chaste in its appearance1 better fitted for the comfort and usefulness of its inhabitants4 ,the practitioner1 who has become familiar with it1 who observes and admires that silent legislation of the people1 which shows itself not on the pages of the statute book1 and receives its recognition in courts of justice only after it has ceased to need even that to give it form and vitality1 and who understands1 therefore1 how1 with little inconvenience1 it is made to accommodate itself to every change of condition1 sits down to a careful calculation of the cost and risk of such wholesale change4 ,history and practical experience1 alike1 suggest to him1 that the structure is a castle as well as a dwelling1 a place for security as well as comfort2 that its foundations have been laid deeply on the solid rock--its masonry more firmly knit together by the time it has endured4 ,yet he will not deny that what can be done consistently with security ought to be done4 ,it is worse than in vain to oppose all amendment4 ,it will break down every artificial barrier that may be reared against it1 if it be not quietly and wisely directed in those channels which it seeks at the least expense to security and stability4 ,surely it is not conceding too much to this spirit to admit1 that laws should be composed in accurate but perspicuous language1 without redundancy of words or involution of sentences2 that the policy of public measures should not be wrapt up in the folds of ,state mystery2 and that all legislation should be based upon the principle of leaving the greatest liberty of private judgment and action1 consistent with public peace and private security4 ,a blind attachment to principles of jurisprudence or rules of law because they are ancient1 when the advancement of the useful arts1 the new combinations of trade and business1 and the influence of more rapid and general intercourse demand their repeal or modification1 is as much to be deprecated as rash innovation and unceasing experiment4 ,indeed it scarcely ever fails to defeat its own end1 and though it may retard for a while1 renders the course of reform more destructive than it otherwise would have been4 ,true conservatism is gradualism--the movement onward by slow1 cautious1 and firm steps--but still movement1 and that onward4 ,the world1 neither physically1 intellectually1 nor morally1 was made to stand still4 ,as in her daily revolutions on her own axis as well as her annual orbit round the sun1 she never returns precisely to the same point in space which she has ever before occupied1 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 matter2 by ceaseless motion all that is subsists4 ,what has thus been very cursorily presented will evince that it is the province of legislation1 by slow and cautious steps1 to amend the laws1 to render them more equal in their operation upon all classes1 not favoring the rich more than the poor1 nor one class of either more than another1 providing an easy1 cheap1 and expeditious administration of justice by tribunals1 whose learning and impartiality shall be so secured as to possess the confidence of the community1 and by general rules for the regulation of conduct and the distribution of estates most conformed to the analogies of that system1 which is familiar to the people in their common law4 ,great as is the influence which the profession of the law can and does exercise upon the legislation of a country1 the actual administration of law is entirely in their hands4 ,to a large extent by private counsel1 by the publication of works of research and learning1 by arguments in courts of justice to assist those who are to determine what is the law1 and to apply it to the facts1 as well as in the actual exercise of judicature1 this whole important province of government1 which comes home so nearly to every man's fireside1 is intrusted necessarily to lawyers4 ,in this country we live under the protection of written constitutions2 not only so1 but written constitutions1 which have assumed to place limits upon the power of majorities1 acting at least through their ordinary representatives4 ,the construction of these constitutions1 or constitutional law as it is termed1 forms a very important branch of ,american jurisprudence4 ,there have been1 and are1 in other countries1 charters1 written or unwritten--organic or fundamental laws--but without this distinguishing feature4 ,the fundamental laws1 thus established in point of fact1 emanate from the government1 and have no sanction beyond the oath of those intrusted with the administration of them1 the force of public opinion1 and the responsibility of the representative to his constituent4 ,our constitutions emanate not from the government1 but the ,state1 the society1 the creator of the government2 and are1 therefore1 in the strictest sense of the words1 leges legum4 ,the radical principle of our system is1 that the act of the legislative body1 beyond or contrary to the power confided to it by the ,constitution1 is a nullity1 and absolutely void4 ,the courts must so pronounce1 and the executive must execute their judgments with the whole force of the ,state4 ,upon such a subject it is best to use the very language--the ipsissima verba--of ,john ,marshall1 as1 at the same time1 expressing the doctrine with the greatest force and perspicuity1 and presenting1 in the mere statement1 the most convincing argument of its importance4 ,it is emphatically the province and duty of the judicial department to say what the law is4 ,those who apply the rule to particular cases1 must1 of necessity1 expound and interpret that rule4 ,if two laws conflict with each other1 the courts must decide on the operation of each4 ,so if a law be in opposition to the ,constitution2 if both the law and the ,constitution apply to a particular case1 so that the court must either decide that case conformably to the law1 disregarding the ,constitution1 or conformably to the ,constitution1 disregarding the law3 the court must determine which of these conflicting rules governs the case4 ,this is of the very essence of judicial duty4 ,if1 then1 the courts are to regard the ,constitution1 and the ,constitution is superior to any ordinary act of the legislature1 the ,constitution1 and not such ordinary act1 must govern the case to which they both apply4 ,those1 then1 who controvert the principle that the ,constitution is to be considered in court as a paramount law1 are reduced to the necessity of maintaining that courts must close their eyes on the ,constitution and see only the law4 ,this doctrine would subvert the very foundation of all written constitutions4 ,it would declare that an act1 which1 according to the principles and theory of our government1 is entirely void1 is yet1 in practice1 completely obligatory4 ,it would declare that1 if the legislature shall do what is expressly forbidden1 such act1 notwithstanding the express prohibition1 is1 in reality1 effectual4 ,it would be giving to the legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits4 ,it is prescribing limits1 and declaring that those limits may be passed at pleasure4 7,marbury v4 ,madison1 #a ,cranch1 #agg47 ,more weighty words than these have never1 speaking of human things1 fallen from the lips of man3 weighty in themselves from their own simple but eloquent conclusiveness--weightier still from their unspeakable importance1 the immeasurable influence they have had1 and1 it is to be hoped1 will ever continue to have1 upon the destinies of the ,united ,states of ,america4 ,the judiciary department1 though originating nothing1 but acting only when invoked by parties in the prosecution of their rights1 is thus necessarily an important political branch of the government4 ,that department spreads the broad and impregnable shield of its protection over the life1 limbs1 liberty1 and property of the citizen1 when invaded even by the will of the majority4 ,our ,bills of ,rights are1 therefore1 not mere enunciations of abstract principles1 but solemn enactments by the people themselves1 guarded by a sufficient sanction4 ,they have not1 perhaps1 as yet1 carried far enough their provisions for the security of property from the unjust action of government4 ,the obligation of contracts has been declared sacred2 the right of eminent domain restricted by the provision for compensation4 ,yet1 even as to contracts1 the legislature may still exercise dangerous powers over the remedy1 short of taking it away entirely1 and over the rules of evidence4 ,as to eminent domain1 they possess an undefined right to determine the time and manner of ascertaining the compensation4 ,our constitutions are frequently undergoing revision2 and too much care cannot be exercised to strengthen our securities in this quarter4 ,personal liberty1 trial by jury1 the elective and other political franchises1 liberty of conscience1 of speech and of the press1 are able to protect themselves in a great measure from their own democratic affinities4 ,it is true1 that there really is no difference between wresting from a man the few dollars1 the products or savings of his industry for any period of time1 and depriving him of his liberty1 or chaining him to a log1 to work for another during the same period4 ,property eminently stands in need of every parchment barrier1 which has been or can be thrown around it4 ,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 with or without compensation4 ,the clause1 he argued1 by which it is declared that no man's property shall be taken or applied to public use1 without compensation made1 is a disabling1 not an enabling one1 and the right would have existed in full force without it4 7,harvey v4 ,thomas1 #aj ,watts1 #fc47 ,fortunately1 the decision of the court in that case did not require a resort to that reasoning1 and but little examination was sufficient to satisfy the mind that this obiter dictum was unsustained by either principle or authority4 ,a power in the legislature to take the property of ,a4 and give it to ,b4 directly1 would be of the very essence of despotism4 ,when it is declared in the ,bill of ,rights that no man shall be deprived of his life1 liberty1 or property1 unless by the judgment of his peers1 or the law of the land1 this phrase1 law of the land1 does not mean merely an act of the legislature4 ,if it did1 every restriction upon the legislative department would be practically abrogated4 ,by an authority as old as ,lord ,coke1 in commenting upon these same words in ,magna ,charta1 they are to be rendered without due process of law3 that is1 by indictment or presentment of good and lawful men1 when such deeds be done in due manner1 or by writ original of the common law1 without being brought into answer but by due process of the common law4 7#b ,inst4 #ej47 ,the ,american laws are numerous and uniform to the point 7see #a ,american ,law ,mag4 #cae72 and the same eminent ,judge1 to whom reference has been made in a later case1 declared his adhesion to the sound and true doctrine in the most emphatic language1 without noticing his own previous dictum to the contrary4 ,it was deemed necessary1 said he1 to insert a special provision in the ,constitution to enable them 7the legislature7 to take private property even for public use1 and on compensation made2 but it was not deemed necessary to disable them specially in regard to taking the property of an individual1 with or without compensation1 in order to give it to another1 not only because the general provision in the ,bill of ,rights was deemed sufficiently explicit for that1 but because it was expected that no legislature would be so regardless of right as to attempt it4 ,were this reasonable expectation to be disappointed1 it would become our plain and imperative duty to obey the immediate and paramount will of the people1 expressed by their voices in the adoption of the ,constitution1 rather than the repugnant will of their delegates acting under a restricted but transcended authority4 7,norman v4 ,heist1 #e ,w4 ,s4 #aga47 ,yet1 while the right of private property cannot be thus directly invaded1 its security against the acts of the legislature is not as perfect as it might and ought to be made4 ,the legislature must be allowed a large discretion in judging what is a public use3 on that pretext much may be brought within its sweep unjustly1 and the courts1 in the absence of a constitutional rule1 would be embarrassed in defining its limits4 ,experience has shown that much power to do wrong lurks under grants by no means essential to the public good4 ,besides what has been before referred to1 the assumption of judicial functions by the ,legislature and the broad field of ,chancery jurisdiction over trust estates1 which it has been held that they may exercise immediately1 if they see fit1 instead of vesting them in appropriate tribunals1 are fraught with serious danger4 ,the proneness of bodies so constituted to disembarrass themselves of the ordinary rules of evidence1 to act upon ex parte statements and testimony imperfectly authenticated1 as well as the absence of all legal forms from their proceedings1 and their numbers1 among whom the responsibility of giving due attention to the case is divided1 add to the peril4 ,the power of legislating retrospectively has far too wide a scope2 the constitutional inhibition of ex post facto laws having been construed to apply to criminal or penal cases merely1 restraining the legislature from making that an offence which was not so at the time of its commission1 or increasing the punishment annexed to it4 ,the course of legislation in this country amply demonstrates the wisdom1 and even necessity1 of extending the same prohibition to civil cases4 ,there is no particular or partial inconvenience1 which could outweigh the general benefits of a provision that no law1 public or private1 should operate retrospectively upon past acts2 that the judgment of the tribunals upon every case should be according to the law as it was at the time of the transaction1 which the parties were bound to know1 and in accordance with which they are to be presumed to have acted4 ,as well in the domain of public as of private law1 the great fundamental principle for judge and counsellor ought to be1 ,,that ,,authority ,,is ,,sacred4 ,there is no inconvenience so great1 no private hardship so imperative1 as to justify the application of a different rule to the resolution of a case1 than the existing state of the law will warrant4 ,there is not a line from his pen1 says ,mr4 ,binney of ,chief ,justice ,tilghman1 that trifles with the sacred deposit in his hands by claiming to fashion it according to a private opinion of what it ought to be4 ,judicial legislation he abhorred1 ,i should rather say1 dreaded1 as an implication of his conscience4 ,his first inquiry in every case was of the oracles of the law for their response2 and when he obtained it1 notwithstanding his clear perception of the justice of the cause1 and his intense desire to reach it1 if it was not the justice of the law1 he dared not to administer it4 ,he acted upon the sentiment of ,lord ,bacon1 that it is the foulest injustice to remove landmarks1 and that to corrupt the law is to poison the very fountains of justice4 ,with a consciousness that to the errors of the science there are some limits1 but none to the evils of a licentious invasion of it1 he left it to our annual legislature to correct such defects in the system as time either created or exposed2 and better foundation in the law can no man lay4 ,it is not to be denied that there is some difficulty in stating with accuracy the limits of the rule stare decisis4 ,one1 or even more than one1 recent precedent1 especially when it relates to the application rather than to the establishment of a rule1 is not of so binding a character that it must be followed1 even though contrary to principles adjudged in older cases3 but it is just as clear that when a decision has been long acquiesced in1 when it has been applied in numerous cases1 and become a landmark in the branch of the science to which it relates1 when men have dealt and made contracts on the faith of it1 whether it relates to the right of property itself1 or to the evidence by which that right may be substantiated1 though it may appear to us flatly absurd and unjust1 to overrule such a decision is an act of positive injustice1 as well as a violation of law1 and an usurpation by one branch of the government upon the powers of another4 ,an example will illustrate this position4 ,in the case of ,walton v4 ,shelley 7#a ,term ,rep4 #bif71 in #aghf1 the ,king's ,bench1 ,lord ,mansfield1 ,chief ,justice1 decided that a person is not a competent witness to impeach a security which he has given1 though he is not interested in the event of the suit1 on the trial of which he is offered4 ,in ,jordaine v4 ,lashbrooke 7#g ,term ,rep4 #fja71 the same court1 in #agih1 under the presidency of ,lord ,kenyon1 rightly overruled that decision4 ,now it so happens that ,walton v4 ,shelley was recognized as authority and followed in ,pennsylvania1 in #agib1 in ,stille v4 ,lynch 7#b ,dall4 #aid71 before it had been overruled in ,england3 and though limited as it was understood to be in ,bent v4 ,baker 7#c ,term ,rep4 #cd71 to negotiable paper 7,pleasants v4 ,pemberton1 #b ,dall4 #aif71 it has never been varied from since that time1 though it has frequently been admitted that ,walton v4 ,shelley was properly overruled4 ,it ought not now to be overruled in ,pennsylvania4 ,after the decisions cited1 says ,judge ,rogers1 in ,gest v4 ,espy 7#b ,watts1 #bfh71 this cannot be considered an open question1 nor do we think ourselves at liberty now to examine the foundations of the rule4 ,unfortunately our ,supreme ,court have not always put this sound and wise limitation upon their own power4 ,in the case of ,post v4 ,avery 7#e ,w4 ,s4 #eji71 they declared in regard to a rule of more than thirty years' standing1 and confirmed by numerous cases1 that they had vainly hoped that the inconvenience of the rule would have attracted the attention of the legislature1 who alone are competent to abolish it2 but as nothing was to be expected from that quarter1 they were driven by stress of necessity to overrule a case expressly decided on the authority of the rule4 7,hart v4 ,heilner1 #c ,rawle1 #djg47 ,and two years afterwards1 after having made the remarkable declaration that the legislature alone was competent to abolish the rule1 they nevertheless pronounced it exploded altogether4 7,mc,clelland v4 ,mahon1 #a ,barr1 #cfd47 ,lord ,bacon says of retrospective laws3 ,cujus generis leges raro et magna cum cautione sunt adhibenda3 neque enim placet ,janus in legibus4 ,without any saving clause may the epithet and denunciation be applied to judicial laws4 ,they are always retrospective1 but worse on many accounts than retrospective statutes4 ,against the latter we have at least the security of the constitutional provision that prohibits the passage of any law1 which impairs the obligation of a contract1 executory or executed2 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 contract was made1 as would practically destroy the contract itself by destroying the only means of enforcing it4 ,there is no such constitutional provision against judicial legislation4 ,it sweeps away a man's rights1 vested1 as he had reason to think1 upon the firmest foundation1 without affording him the shadow of redress4 ,nor could there1 in the nature of things1 be any such devised4 ,when a court overrules a previous decision1 it does not simply repeal it2 it must pronounce it never to have been law4 ,there is no instance on record1 in which a court has instituted the inquiry1 upon what grounds the suitor had relied in investing his property or making his contract1 and relieved him from the disastrous consequences1 not of his1 but of their mistake1 or the mistake of their predecessors4 ,the man who1 on the faith of ,steele v4 ,the ,phoenix ,ins4 ,co4 7#c ,binn4 #cjf71 decided in #ahaa1 and treated as so well settled in itself and all its logical consequences1 that in #ahcb 7,hart v4 ,heilner1 #c ,rawle1 #djg7 the ,supreme ,court1 declined to hear the counsel1 who relied on its authority1 invested his money in the purchase of a claim which could be proved only by the testimony of the assignor1 found himself stripped of his property by a decision in #ahde1 the results of which were broader than even the legislature itself would have been competent to effect1 or indeed the people themselves in their sovereign capacity1 at least so long as the ,constitution of the ,united ,states continues to be the supreme law of the land1 anything in the constitution and laws of any ,state to the contrary notwithstanding4 ,but judicial is much worse than legislative retrospection in another aspect4 ,the act of ,assembly1 if carefully worded1 is at least a certain rule4 ,the act of the judicial legislature is invariably the precursor of uncertainty and confusion4 ,apply to it a test1 which may be set down as unerring1 never failing soon to discover the true metal from the base counterfeit3 its effect upon litigation4 ,a decision in conformity to established precedents is the mother of repose on that subject2 but one that departs from them throws the professional mind at sea without chart or compass4 ,the cautious counsellor will be compelled to say to his client that he cannot advise4 ,one cause is the general uncertainty to which it leads4 ,men will persuade themselves easily1 when it is their interest to be persuaded1 that if one well-established rule has been overthrown1 another1 believed to be quite as wrong and perhaps not so well fortified by time and subsequent cases1 may share the same fate4 ,shall counsel risk advising his client not to prosecute his claim or defence1 when another bolder than he1 may moot the point and conduct another cause resting upon the same question to a successful termination8 ,the very foundations of confidence and security are shaken4 ,the law becomes a lottery1 in which every man feels disposed to try his chance4 ,another cause of this uncertainty is more particular4 ,a court scarcely ever makes an open and direct overthrow of a deeply founded rule at one stroke4 ,it requires repeated blows4 ,it can be seen to be in danger1 but not whether it is finally to fall4 ,hence it frequently happens that there is a sliding scale of cases2 and when the final overthrow comes1 it is very difficult to determine1 whether any and which steps of the process remain4 ,shortly after the decision in ,post v4 ,avery1 the case of ,fraley v4 ,bispham was tried in one of the inferior courts2 in which the ,judge1 thinking that ,post v4 ,avery1 however the intention may have been disclaimed1 did in fact overrule ,steele v4 ,the ,phoenix1 rejected as incompetent one of the nominal plaintiffs1 a retiring partner1 who upon dissolution had sold out for a price bona fide paid1 all his interest in the firm to his copartners1 who continued the business4 ,a motion was made for a new trial1 and before the rule came on to be heard1 ,patterson v4 ,reed 7#g ,w4 ,s4 #add7 had appeared1 and the court1 on the authority of that case1 which decided that an assignment must be colorable and made for the purpose of rendering the assignor a witness in order to exclude him1 ordered a new trial4 ,before the case was again called for trial1 the first volume of ,barr's ,reports had been published1 in which the ,supreme ,court said3 ,the time is come1 when the doctrine of ,steele v4 ,the ,phoenix ,ins4 ,co4 must be exploded altogether4 ,the essential interests of justice demand that the decision in that case be no longer a precedent for anything whatever4 7,mc,clelland v4 ,mahon1 #a ,barr1 #cfd47 ,and the ,judge before whom the cause was then tried had no other course left1 but again to reject the witness1 the very same thing on account of which a new trial had been ordered4 ,the case of ,post v4 ,avery is a most striking illustration of judicial legislation and its mischievous results4 ,it is usual to hear it excused on account of the unequal and unjust operation of the rule reversed1 by which one party was heard but not the other1 and the temptation it held out for the manufacture of false claims1 to be supported by perjury4 ,but it is to lose sight of the real question involved to raise such an issue3 for1 like the execution of a notorious culprit by the expeditious process of a mob and a lamp-post1 instead of the formalities and delays of law and courts1 it may be a very good thing for the community to have rid itself of the offender1 but the way by which it was accomplished was a heavy blow at the very root of the tree of public and private security4 ,there is another decision of the ,supreme ,court of ,pennsylvania1 not so bold and avowed an act of judicial legislation as that just mentioned1 but not less transparent1 which may be cited as strongly illustrating the same consequences of uncertainty and litigation flowing from a disregard of the principle adverted to4 ,from the year #agid1 there had existed in ,pennsylvania an act of ,assembly limiting the lien of the debts of a decedent on his real estate1 at first to seven1 afterwards to five years4 ,no question ever arose before the court in regard to it4 ,lien was considered to mean lien and not obligation3 lands to be subject to execution for all debts of the owner prosecuted to judgment1 and of course not barred by the ,statute of ,limitations2 and the limitation of the lien merely intended for the protection of purchasers from the heirs or devisees or their lien creditors4 ,such was recognized to be the true meaning of the law in #agie 7,hannum v4 ,spear1 #a ,yeats1 #eff71 and so distinctly ruled in #ahcj 7,bruch v4 ,lantz1 #b ,rawle1 #cib72 yet on grounds palpably only relevant to what1 in the opinion of the court1 the law ought to be1 it was held in #ahcb1 in ,kerper v4 ,hoch 7#a ,watts1 #i71 that the period named was a limitation not of the lien but of the debt itself1 and available in favor of heirs and devisees1 volunteers under the debtor and succeeding to his rights cum onere4 ,as we have seen1 but two cases are to be produced of litigation arising out of this law carried to the highest tribunal from #agid to #ahcb4 ,more than twenty cases are to be found reported since1 in which that court has been called upon to draw distinctions and settle the precise extent of their own law4 ,thus a little complicated system has grown up on this construction of the act4 ,a volume1 indeed1 might be written on ,kerper v4 ,hoch and its satellites1 when if the act had been let alone to speak for itself1 and the prior decision followed1 it would have been a simple and intelligible rule of action1 until the legislature saw fit to alter it4 ,it seems that this consideration pressed upon at least one of the judges1 who joined in that decision2 for in a subsequent case1 when ,kerper v4 ,hoch was cited1 that ,judge1 with characteristic candor1 interrupted the counsel with the remark3 ,we will abide by the rule1 but it was erroneously decided4 7,hocker's ,appeal1 #d ,barr1 #dih47 ,this1 then1 is the legitimate province of ,jurisprudence1 ,stare super antiquas vias1 to maintain the ancient landmarks1 to respect authority1 to guard the integrity of the law as a science1 that it may be a certain rule of decision1 and promote that security of life1 liberty1 and property1 which1 as we have seen1 is the great end of human society and government4 ,thus industry will receive its best encouragement2 thus enterprise will be most surely stimulated2 thus constant additions to capital by savings will be promoted2 thus the living will be content in the feeling that their earnings are safely invested2 and the dying be consoled with the reflection that the widow and orphan are left under the care and protection of a government1 which administers impartial justice according to established laws4 ,with jurisprudence1 lawyers have the most1 nay all1 to do4 ,the opinion of the ,bar will make itself heard and respected on the ,bench4 ,with sound views1 their influence for good in this respect may well be said to be incalculable4 ,it is indeed the noblest faculty of the profession to counsel the ignorant1 defend the weak and oppressed1 and to stand forth on all occasions as the bulwark of private rights against the assaults of power1 even under the guise of law2 but it has still other functions4 ,it is its office to diffuse sound principles among the people1 that they may intelligently exercise the controlling power placed in their hands1 in the choice of their representatives in the ,legislature and of ,judges1 in deciding1 as they are often called upon to do1 upon the most important changes in the ,constitution1 and above all in the formation of that public opinion which may be said in these times1 almost without a figure1 to be ultimate sovereign4 ,whether they seek them or are sought1 lawyers1 in point of fact1 always have filled1 in much the larger proportion over every other profession1 the most important public posts4 ,they will continue to do so1 at least so long as the profession holds the high and well-merited place it now does in the public confidence4 ,,professional ,,ethics4 ,there is1 perhaps1 no profession1 after that of the sacred ministry1 in which a high-toned morality is more imperatively necessary than that of the law4 ,there is certainly1 without any exception1 no profession in which so many temptations beset the path to swerve from the line of strict integrity2 in which so many delicate and difficult questions of duty are continually arising4 ,there are pitfalls and man-traps at every step1 and the mere youth1 at the very outset of his career1 needs often the prudence and self-denial1 as well as the moral courage1 which belong commonly to riper years4 ,high moral principle is his only safe guide2 the only torch to light his way amidst darkness and obstruction4 ,it is like the spear of the guardian angel of ,paradise3 ,no falsehood can endure ,touch of celestial temper1 but returns ,of force to its own likeness4 ,the object of this ,essay is to arrive at some accurate and intelligible rules by which to guide and govern the conduct of professional life4 ,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 cases4 ,it is a difficult task1 however1 as it always is in practice1 to determine the precise extent of a principle1 so as to know when it is encountered and overcome by another--to weigh the respective force of duties which appear to come in conflict4 ,in all the walks of life men have frequently to do this3 in none so often as at the ,bar4 ,the responsibilities1 legal and moral1 of the lawyer1 arise from his relations to the court1 to his professional brethren and to his client4 ,it is in this order that it is proposed to consider and discuss the various topics which grow out of this subject4 ,the oath directed by law in this ,state to be administered upon the admission of an attorney to the bar1 to behave himself in the office of attorney according to the best of his learning and ability1 and with all good fidelity1 as well to the court as to the client2 that he will use no falsehood1 nor delay any man's cause for lucre or malice1 presents a comprehensive summary of his duties as a practitioner4#a ,fidelity to the court1 fidelity to the client1 fidelity to the claims of truth and honor3 these are the matters comprised in the oath of office4 ,it is an oath of office1 and the practitioner1 the incumbent of an office--an office in the administration of justice#b--;held by authority from those who represent in her tribunals the majesty of the commonwealth1 a majesty truly more august than that of kings or emperors4 ,it is an office1 too1 clothed with many privileges--privileges1 some of which are conceded to no other class or profession4#c ,it is1 therefore1 that the legislature have seen fit to require that there should be added to the solemnity of the responsibility1 which every man virtually incurs when he enters upon the practice of his profession1 the higher and more impressive sanction of an appeal to the ,searcher of all ,hearts4 ,fidelity to the court1 requires outward respect in words and actions4 ,the oath as it has been said1 undoubtedly looks to nothing like allegiance to the person of the judge2 unless in those cases where his person is so inseparable from his office1 that an insult to the one1 is an indignity to the other4 ,in matters collateral to official duty1 the judge is on a level with the members of the bar1 as he is with his fellow-citizens2 his title to distinction and respect resting on no other foundation1 than his virtues and qualities as a man4#d ,there are occasions1 no doubt1 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 court1 nay1 even manly and open remonstrance2 but this duty may be faithfully performed1 and yet that outward respect be preserved1 which is here inculcated4 ,counsel should ever remember how necessary it is for the dignified and honorable administration of justice1 upon which the dignity and honor of their profession entirely depend1 that the courts and the members of the courts1 should be regarded with respect by the suitors and people2 that on all occasions of difficulty or danger to that department of government1 they should have the good opinion and confidence of the public on their side4 ,good men of all parties prefer to live in a country1 in which justice according to law is impartially administered4 ,counsel should bear in mind also the wearisomeness of a judge's office2 how much he sees and hears in the course of a long session1 to try his temper and patience4 ,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 time2 for one of his duties is to render it disagreeable to counsel to talk nonsense4 ,respectful submission1 nay1 most frequently1 even cheerful acquiescence in a decision1 when1 as is most generally the case1 no good result to his cause can grow from any other course1 is the part of true wisdom as well as civility4 ,an exception may be noted to the opinion of the ,bench1 as easily in an agreeable and polite1 as in a contemptuous and insulting manner4 ,the excitement of the trial of a cause caused by the conflict of testimony1 making often the probabilities of success to vibrate backwards and forwards with as much apparent uncertainty as the chances in a game of hazard1 is no doubt often the reason and apology for apparent disrespect in manner and language2 but let it be observed1 that petulance in conflicts with the ,bench1 which renders the trial of causes disagreeable to all concerned1 has most generally an injurious effect upon the interests of clients4 ,indeed1 it is highly important that the temper of an advocate should be always equal4 ,he should most carefully aim to repress everything like excitability or irritability4 ,when passion is allowed to prevail1 the judgment is dethroned4 ,words are spoken1 or things done1 which the parties afterwards wish could be unsaid or undone4 ,equanimity and self-possession are qualities of unspeakable value4 ,an anecdote may serve to illustrate this remark4 ,there was a gentleman of the ,bar of ,philadelphia1 many years ago1 who possessed these qualities in a very remarkable degree4 ,he allowed nothing that occurred in a cause to disturb or surprise him4 ,on an occasion in one of the neighboring counties1 the circuit of which it was his custom to ride1 he was trying a cause on a bond1 when a witness for defendant was introduced1 who testified that the defendant had taken the amount of the bond1 which was quite a large sum1 from his residence to that of the obligee1 a distance of several miles1 and paid him in silver in his presence4 ,the evidence was totally unexpected2 his clients were orphan children2 all their fortune was staked on this case4 ,the witness had not yet committed himself as to how the money was carried4 ,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 weigh2 and when it came his turn to cross-examine1 calmly proceeded to make the witness repeat his testimony step by step1--when1 where1 how1 and how far the money was carried--and then asked him if he knew how much that sum of money weighed1 and upon naming the amount1 so confounded the witness1 party1 and counsel engaged for the defendant1 that the defence was at once abandoned1 and a verdict for the plaintiff rendered on the spot4#e ,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 duties4 ,it is not often1 indeed1 that gentlemen of the ,bar so far forget themselves as to attempt to exert privately an influence upon the judge1 to seek private interviews1 or take occasional opportunities of accidental or social meetings to make ex parte statements1 or to endeavor to impress their views4 ,they know that such conduct is wrong in itself1 and has a tendency to impair confidence in the administration of justice1 which ought not only to be pure but unsuspected4 ,a judge will do right to avoid social intercourse with those who obtrude such unwelcome matters upon his moments of relaxation4 ,there is one thing1 however1 of which gentlemen of the ,bar are not sufficiently careful1--to discourage and prohibit their clients from pursuing a similar course4 ,the position of the judge in relation to a cause under such circumstances is very embarrassing1 especially1 as is often the case1 if he hears a good deal about the matter before he discovers the nature of the business and object of the call upon him4 ,often the main purpose of such visits is not so much to plead the cause1 as to show the judge who the party is--an acquaintance1 perhaps--and thus1 at least1 to interest his feelings4 ,counsel should set their faces against all undue influences of the sort2 they are unfaithful to the court1 if they allow any improper means of the kind to be resorted to4 ,judicem nec de obtinendo jure orari oportet nec de injuria exorari4 ,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 concerned4 ,he should enforce the same duty upon his client4 ,any attempt by an attorney to influence a juror by arguments or otherwise1 will1 of course1 if discovered and brought to the notice of the court1 lead to expulsion or suspension from the ,bar1 according to the degree and quality of the offence4 ,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 eyes4 ,it would be an injury to the administration of justice1 says ,c4 ,j4 ,tilghman1 not to declare that it is gross misbehavior for any person to speak with a juror1 or for a juror to permit any person to speak with him1 respecting the cause he is trying1 at any time after he is summoned and before the verdict is delivered4 ,the words thus uttered1 says ,judge ,hare1 by one of the best men and purest magistrates that ever filled the judicial office1 must find an echo in every bosom4 ,the principle which dictated them does not require the aid of argument or elucidation2 it is native to the conscience1 and will be apparent to all who consult the monitor in their own breast4 ,the wrong is aggravated when the taint of personal interest mingles with it1 as when committed by a party to the cause1 but appears in the worst form when it is the act of attorneys or counsel1 who are the sworn officers of the court1 whose duty it is to act as guardians of the fountains of justice1 and who are false to their charge when they defile or taint those waters1 which they are pledged to keep pure and unpolluted4 ,such conduct in counsel is a gross breach of trust1 for which a removal from the trust is but an inadequate punishment4#f ,there is another duty to the court1 and that is1 to support and maintain it in its proper province wherever it comes in conflict with the co-ordinate tribunal--the jury4 ,the limits of these two provinces are settled with great accuracy2 and even if a judge makes a mistake1 the only proper place to correct his error is in the superior tribunal1--the ,court of ,errors4 ,it has been held in a multitude of cases1 that verdicts against the charge of the court in point of law1 will be set aside without limitation as to the number of times1 and that without regard to the question whether the direction of the court in point of law was right or wrong4 ,there is a technical reason1 which makes this course in all cases imperative4 ,the losing party1 if the jury were allowed to decide the law for him1 would be deprived of his exception1 and of his unquestionable right to have the law of his case pronounced upon by the ,supreme ,court4 ,ad questiones juris respondeant judices1--ad questiones facti juratores4 ,a disregard by the jury of the law1 as laid down by the judge1 is always therefore followed by additional and unnecessary delay and expense1 and it is never an advantage to a party in the long run to obtain a verdict in opposition to the direction of the court4#g ,it is best for counsel to say in such cases1 where nothing is left by the charge to the jury1 that they do not ask for a verdict4 ,it has a fair1 candid1 and manly aspect towards court1 jury1 opposite party1 and even client4 ,instances of counsel urging or endeavoring to persuade a jury to disregard the charge may sometimes occur1 but they are exceedingly rare when there is good feeling between the ,bench and the ,bar1 and when the members of the profession have just and enlightened views of their duty as well as interest4 ,it need hardly be added that a practitioner ought to be particularly cautious1 in all his dealings with the court1 to use no deceit1 imposition1 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 garbled4 ,sir ,matthew ,hale abhorred1 says his biographer1 those too common faults of misrepresenting evidence1 quoting precedents or books falsely1 or asserting anything confidently by which ignorant juries and weak judges are too often wrought upon4#h ,one such false step in a young lawyer will do him an injury in the opinion of the ,bench and of his professional brethren1 which it will take years to redeem1 if indeed it ever can be entirely redeemed4 ,a very great part of a man's comfort1 as well as of his success at the ,bar1 depends upon his relations with his professional brethren4 ,with them he is in daily necessary intercourse1 and he must have their respect and confidence1 if he wishes to sail along in smooth waters4 ,he cannot be too particular in keeping faithfully and liberally every promise or engagement he may make to them4 ,one whose perfect truthfulness is even suspected by his brethren at the ,bar has always an uneasy time of it4 ,he will be constantly mortified by observing precautions taken with him which are not used with others4 ,it is not only morally wrong but dangerous to mislead an opponent1 or put him on a wrong scent in regard to the case4 ,it would be going too far to say that it is ever advisable to expose the weakness of a client's cause to an adversary1 who may be unscrupulous in taking advantage of it2 but it may be safely said1 that he who sits down deliberately to plot a surprise upon his opponent1 and which he knows can succeed only by its being a surprise1 deserves to fall1 and in all probability will fall1 into the trap which his own hands have laid4 ,whoso diggeth a pit1 says the wise man1 shall fall therein1 and he that rolleth a stone1 it will return upon him4 ,if he should succeed1 he will have gained with his success not the admiration and esteem1 but the distrust and dislike of one of his associates as long as he lives4 ,he should never unnecessarily have a personal difficulty with a professional brother4 ,he should neither give nor provoke insult4 ,nowhere more than at the ,bar is that advice valuable3 ,beware ,of entrance to a quarrel2 but being in1 ,bear it that the opposed may beware of thee4 ,there is one more caution to be given under this head4 ,let him shun most carefully the reputation of a sharp practitioner4 ,let him be liberal to the slips and oversights of his opponent wherever he can do so1 and in plain cases not shelter himself behind the instructions of his client4 ,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 propriety4 ,nothing is more certain than that the practitioner will find1 in the long run1 the good opinion of his professional brethren of more importance than that of what is commonly called the public4 ,the foundations of the reputation of every truly great lawyer will be discovered to have been laid here4 ,sooner or later1 the real public--the business men of the community1 who have important lawsuits1 and are valuable clients--indorse the estimate of a man entertained by his associates of the ,bar1 unless indeed there be some glaring defect of popular qualities4 ,the community know that they are better qualified to judge of legal attainments1 that they have the best opportunity of judging1 and that they are slow in forming a judgment4 ,the good opinion and confidence of the members of the same profession1 like the ,king's name on the field of battle1 is a tower of strength2 it is the title of legitimacy4 ,the ambition to please the people1 to captivate jurors1 spectators1 and loungers about the court room1 may mislead a young man into pertness1 flippancy1 and impudence1 things which often pass current for eloquence and ability with the masses2 but the ambition to please the ,bar can never mislead him4 ,their good graces are only to be gained by real learning1 by the strictest integrity and honor1 by a courteous demeanor1 and by attention1 accuracy and punctuality in the transaction of business4 ,the topic of fidelity to the client involves the most difficult questions in the consideration of the duty of a lawyer4 ,he is legally responsible to his client only for the want of ordinary care and ordinary skill4 ,that constitutes gross negligence4 ,it is extremely difficult to fix upon any rule which shall define what is negligence in a given case4 ,the habits and practice of men are widely different in this regard4 ,it has been laid down that if the ordinary and average degree of diligence and skill could be determined1 it would furnish the true rule4#i ,though such be the extent of legal liability1 that of moral responsibility is wider4 ,entire devotion to the interest of the client1 warm zeal in the maintenance and defence of his rights1 and the exertion of his utmost learning and ability1--these are the higher points1 which can only satisfy the truly conscientious practitioner4 ,but what are the limits of his duty when the legal demands or interests of his client conflict with his own sense of what is just and right8 ,this is a problem by no means of easy solution4 ,that lawyers are as often the ministers of injustice as of justice is the common accusation in the mouth of gainsayers against the profession4 ,it is said there must be a right and a wrong side to every lawsuit4 ,in the majority of cases it must be apparent to the advocate1 on which side is the justice of the cause2 yet he will maintain1 and often with the appearance of warmth and earnestness1 that side which he must know to be unjust1 and the success of which will be a wrong to the opposite party4 ,is he not then a participator in the injustice8 ,it may be answered in general3-- ,every case is to be decided by the tribunal before which it is brought for adjudication upon the evidence1 and upon the principles of law applicable to the facts as they appear upon the evidence4 ,no court or jury are invested with any arbitrary discretion to determine a cause according to their mere notions of justice4 ,such a discretion vested in any body of men would constitute the most appalling of despotisms4 ,law1 and justice according to law--this is the only secure principle upon which the controversies of men can be decided4 ,it is better on the whole that a few particular cases of hardship and injustice1 arising from defect of evidence or the unbending character of some strict rule of law1 should be endured1 than that general insecurity should pervade the community from the arbitrary discretion of the judge4 ,it is this which has blighted the countries of the ,east as much as cruel laws or despotic executives4 ,thus the legislature has seen fit in certain cases to assign a limit to the period within which actions shall be brought2 in order to urge men to vigilance1 and to prevent stale claims from being suddenly revived against men whose vouchers are destroyed or whose witnesses are dead4 ,it is true1 in foro conscientiae1 a defendant1 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 creditor1 ought not to plead the statute4 ,but if he does plead it1 the judgment of the court must be in his favor4 ,now the lawyer is not merely the agent of the party2 he is an officer of the court4 ,the party has a right to have his case decided upon the law and the evidence1 and to have every view presented to the minds of his judges1 which can legitimately bear upon that question4 ,this is the office which the advocate performs4 ,he is not morally responsible for the act of the party in maintaining an unjust cause1 nor for the error of the court1 if they fall into error1 in deciding it in his favor4 ,the court or jury ought certainly to hear and weigh both sides2 and the office of the counsel is to assist them by doing that1 which the client in person1 from want of learning1 experience1 and address1 is unable to do in a proper manner4 ,the lawyer1 who refuses his professional assistance because in his judgment the case is unjust and indefensible1 usurps the functions of both judge and jury4 ,as an answer to any sweeping objection made to the profession in general1 the view thus presented may be quite satisfactory4 ,it by no means follows1 however1 as a principle of private action for the advocate1 that all causes are to be taken by him indiscriminately and conducted with a view to one single end1 success4 ,it is much to be feared1 however1 that the prevailing tone of professional ethics leads practically to this result4 ,he has an undoubted right to refuse a retainer1 and decline to be concerned in any cause1 at his discretion4 ,it is a discretion to be wisely and justly exercised4 ,when he has once embarked in a case1 he cannot retire from it without the consent of his client or the approbation of the court4#aj ,to come before the court with a revelation of facts1 damning to his client's case1 as a ground for retiring from it1 would be a plain breach of the confidence reposed in him1 and the law would seal his lips4#aa ,how then is he to acquit himself8 ,lord ,brougham1 in his justly celebrated defence of the ,queen1 went to very extravagant lengths upon this subject2 no doubt he was led by the excitement of so great an occasion to say what cool reflection and sober reason certainly never can approve4 ,an advocate1 said he1 in the discharge of his duty knows but one person in all the world1 and that person is his client4 ,to save that client by all means and expedients1 and at all hazards and costs to other persons1 and among them to himself1 is his first and only duty2 and in performing this duty he must not regard the alarm1 the torments1 the destruction he may bring upon others4 ,separating the duty of a patriot from that of an advocate1 he must go on reckless of consequences2 though it should be his unhappy lot to involve his country in confusion4 ,on the other hand1 and as illustrative of the practical difficulty1 which this question presented to a man1 with as nice a perception of moral duty as perhaps ever lived1 it is said by ,bishop ,burnet1 of ,sir ,matthew ,hale3 ,if he saw a cause was unjust1 he for a great while would not meddle further in it1 but to give his advice that it was so2 if the parties after that would go on1 they were to seek another counsellor1 for he would assist none in acts of injustice2 if he found the cause doubtful or weak in point of law1 he always advised his clients to agree their business4 ,yet afterwards he abated much of the scrupulosity he had about causes that appeared at first unjust1 upon this occasion2 there were two causes brought him1 which by the ignorance of the party or their attorney1 were so ill-represented to him that they seemed to be very bad2 but he inquiring more narrowly into them1 found they were really very good and just2 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 first4#ab ,it may be delicate and dangerous ground to tread upon to undertake to descend to particulars upon such a subject4 ,every case must1 to a great degree1 depend upon its own circumstances1 known1 peradventure1 to the counsel alone2 and it will often be hazardous to condemn either client or counsel upon what appears only4 ,a hard plea--a sharp point--may subserve what is at bottom an honest claim1 or just defence2 though the evidence may not be within the power of the parties1 which would make it manifest4 ,there are a few propositions1 however1 which appear to me to be sound in themselves1 and calculated to solve this problem practically in the majority of cases3 at least to assist the mind in coming to a safe conclusion in foro conscientiae1 in the discharge of professional duty4 ,there is a distinction to be made between the case of prosecution and defence for crimes2 between appearing for a plaintiff in pursuit of an unjust claim1 and for a defendant in resisting what appears to be a just one4 ,every man1 accused of an offence1 has a constitutional right to a trial according to law3 even if guilty1 he ought not to be convicted and undergo punishment unless upon legal evidence2 and with all the forms which have been devised for the security of life and liberty4 ,these are the panoply of innocence when unjustly arraigned2 and guilt cannot be deprived of it1 without removing it from innocence4 ,he is entitled1 therefore1 to the benefit of counsel to conduct his defence1 to cross-examine the witnesses for the ,state1 to scan1 with legal knowledge1 the forms of the proceeding against him1 to present his defence in an intelligible shape1 to suggest all those reasonable doubts which may arise from the evidence as to his guilt1 and to see that if he is convicted1 it is according to law4 ,a circumstance the celebrated ,lord ,shaftesbury once so finely turned to his purpose must often happen to a prisoner at his trial4 ,attempting to speak on the bill for granting counsel to prisoners in cases of high treason1 he was confounded1 and for some time could not proceed1 but recovering himself1 he said1 ,what now happened to him would serve to fortify the arguments for the bill4 ,if he innocent and pleading for others was daunted at the augustness of such an assembly1 what must a man be who should plead before them for his life8#ac ,the courts are in the habit of assigning counsel to prisoners who are destitute1 and who request it2 and counsel thus named by the court cannot decline the office4#ad ,it is not to be termed screening the guilty from punishment1 for the advocate to exert all his ability1 learning1 and ingenuity1 in such a defence1 even if he should be perfectly assured in his own mind of the actual guilt of the prisoner4#ae ,it is a different thing to engage as private counsel in a prosecution against a man whom he knows or believes to be innocent4 ,public prosecutions are carried on by a public officer1 the ,attorney-,general1 or those who act in his place2 and it ought to be a clear case to induce gentlemen to engage on behalf of private interests or feelings1 in such a prosecution4 ,it ought never to be done against the counsel's own opinion of its merits4 ,there is no call of professional duty to balance the scale1 as there is in the case of a defendant4 ,it is in every case but an act of courtesy in the ,attorney-,general to allow private counsel to take part for the ,commonwealth2 such a favor ought not to be asked1 unless in a cause believed to be manifestly just4 ,the same remarks apply to mere assistance in preparing such a cause for trial out of court1 by getting ready and arranging the evidence and other matters connected with it3 as the ,commonwealth has its own officers1 it may well1 in general1 be left to them4 ,there is no obligation on an attorney to minister to the bad passions of his client2 it is but rarely that a criminal prosecution is pursued for a valuable private end1 the restoration of goods1 the maintenance of the good name of the prosecutor1 or closing the mouth of a man who has perjured himself in a court of justice4 ,the office of ,attorney-,general is a public trust1 which involves in the discharge of it1 the exertion of an almost boundless discretion1 by an officer who stands as impartial as a judge4 ,the professional assistant1 with the regular deputy1 exercises not his own discretion1 but that of the ,attorney-,general1 whose locum tenens at sufferance1 he is2 and he consequently does so under the obligation of the official oath4#af ,on the other hand1 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 guilty1 if the rule were universally adopted1 the effect would be to deprive a defendant1 in such cases1 of the benefit of counsel altogether4 ,the same course of remark applies to civil causes4 ,a defendant has a legal right to require that the plaintiffs demand against him should be proved and proceeded with according to law4 ,if it were thrown upon the parties themselves1 there would he a very great inequality between them1 according to their intelligence1 education1 and experience1 respectively4 ,indeed1 it is one of the most striking advantages of having a learned profession1 who engage as a business in representing parties in courts of justice1 that men are thus brought nearer to a condition of equality1 that causes are tried and decided upon their merits1 and do not depend upon the personal characters and qualifications of the immediate parties4#ag ,thus1 too1 if a suit be instituted against a man to recover damages for a tort1 the defendant has a right to all the ingenuity and eloquence he can command in his defence1 that even if he has committed a wrong1 the amount of the damages may not exceed what the plaintiff is justly entitled to recover4 ,but the claim of a plaintiff stands upon a somewhat different footing4 ,counsel have an undoubted right1 and are in duty bound1 to refuse to be concerned for a plaintiff in the legal pursuit of a demand1 which offends his sense of what is just and right4 ,the courts are open to the party in person to prosecute his own claim1 and plead his own cause2 and although he ought to examine and be well-satisfied before he refuses to a suitor the benefit of his professional skill and learning1 yet it would be on his part an immoral act to afford that assistance1 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 him4 ,it is a popular but gross mistake1 says the late ,chief ,justice ,gibson1 to suppose that a lawyer owes no fidelity to any one except his client1 and that the latter is the keeper of his professional conscience4 ,he is expressly bound by his official oath to behave himself1 in his office of attorney1 with all fidelity to the court as well as the client2 and he violates it when he consciously presses for an unjust judgment1 much more so when he presses for the conviction of an innocent man4444 ,the high and honorable office of a counsel would be degraded to that of a mercenary1 were he compelled to do the biddings of his client against the dictates of his conscience4#ah ,the sentiment has been expressed in flowing numbers by our great commentator1 ,sir ,william ,blackstone3-- ,to ,virtue and her friends a friend1 ,still may my voice the weak defend3 ,ne'er may my prostituted tongue ,protect the oppressor in his wrong2 ,nor wrest the spirit of the laws1 ,to sanctify the villain's cause4 ,another proposition which may be advanced upon this subject is1 that there may and ought to be a difference made in the mode of conducting a defence against what is believed to be a righteous1 and what is believed to be an unrighteous claim4 ,a defence in the former case should be conducted upon the most liberal principles4 ,when he is contending against the claim of one1 who is seeking1 as he believes1 through the forms of law1 to do his client an injury1 the advocate may justifiably avail himself of every honorable ground to defeat him4 ,he may begin at once by declaring to his opponent or his professional adviser1 that he holds him at arm's length1 and he may keep him so during the whole contest4 ,he may fall back upon the instructions of his client1 and refuse to yield any legal vantage ground1 which may have been gained through the ignorance or inadvertence of his opponent4 ,counsel1 however1 may and even ought to refuse to act under instructions from a client to defeat what he believes to be an honest and just claim1 by insisting upon the slips of the opposite party1 by sharp practice1 or special pleading--in short1 by any other means than a fair trial on the merits in open court4 ,there is no professional duty1 no virtual engagement with the client1 which compels an advocate to resort to such measures1 to secure success in any cause1 just or unjust2 and when so instructed1 if he believes it to be intended to gain an unrighteous object1 he ought to throw up the cause1 and retire from all connection with it1 rather than thus he a participator in other men's sins4 ,moreover1 no counsel can with propriety and a good conscience express to court or jury his belief in the justice of his client's cause1 contrary to the fact4 ,indeed1 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 espoused4 ,if that opinion has been formed on a statement of facts not in evidence1 it ought not to be heard1--it would be illegal and improper in the tribunal to allow any force whatever to it2 if on the evidence only1 it is enough to show from that the legal and moral grounds on which such opinion rests4 ,some very sound and judicious observations have been made by ,mr4 ,whewell in a recent work on the ,elements of ,moral and ,political ,science1 which deserve to be quoted at length2-- ,some moralists1 says he1 have ranked with the cases in which convention supersedes the general rule of truth1 an advocate asserting the justice1 or his belief in the justice1 of his client's cause4 ,those who contend for such indulgence argue that the profession is an instrument for the administration of justice3 he is to do all he can for his client3 the application of laws is a matter of great complexity and difficulty3 that the right administration of them in doubtful cases is best provided for if the arguments on each side are urged with the utmost force4 ,the advocate is not the judge4 ,this may be all well1 if the advocate let it be so understood4 ,but if in pleading he assert his belief that his cause is just when he believes it unjust1 he offends against truth1 as any other man would do who in like manner made a like assertion4 ,every man1 when he advocates a case in which morality is concerned1 has an influence upon his hearers1 which arises from the belief that he shares the moral sentiments of all mankind4 ,this influence of his supposed morality is one of his possessions1 which1 like all his possessions1 he is bound to use for moral ends4 ,if he mix up his character as an advocate with his character as a moral agent1 using his moral influence for the advocate's purpose1 he acts immorally4 ,he makes the moral rule subordinate to the professional rule4 ,he sells to his client not only his skill and learning1 but himself4 ,he makes it the supreme object of his life to be not a good man1 but a successful lawyer4 ,there belong to him1 moreover1 moral ends which regard his profession2 namely1 to make it an institution fitted to promote morality4 ,to raise and purify the character of the profession1 so that it may answer the ends of justice without requiring insincerity in the advocate1 is a proper end for a good man who is a lawyer2 a purpose on which he may well and worthily employ his efforts and influence4#ai ,nothing need be added to enforce what has been so well said4 ,the remark1 however1 may be permitted1 that the expression of private opinion as to the merits of a controversy often puts the counsel at fearful odds4 ,a young man1 unknown to the court or the jury1 is trying his first case against a veteran of standing and character3 what will the asseveration of the former weigh against that of the latter8 ,in proportion1 then1 to the age1 experience1 maturity of judgment1 and professional character of the man1 who falsely endeavors to impress the court and jury with the opinion of his confidence in the justice of his case1 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 it4 ,much interest was excited some years ago in ,england1 by the circumstances attending the defence of ,courvoisier1 indicted for the murder of ,lord ,william ,russell4 ,the crime was one of great atrocity4 ,it came out after his conviction1 that during the trial he had confessed his guilt to his counsel1 of whom the eminent barrister ,charles ,phillips1 ,esq41 was one4 ,mr4 ,phillips was accused of having endeavored1 notwithstanding this confession1 to fasten suspicion on the other servants in the house1 to induce the belief that the police had conspired with them to manufacture evidence against the prisoner1 and to impress the jury with his own personal belief in the innocence of his client4 ,how far these accusations were just in point of fact was the subject of lively discussion in the newspapers and periodicals of the time4#bj ,the language of counsel1 on such occasions1 during the excitement of the trial1 in the fervor of an address to the jury1 is not to be calmly and nicely scanned in the printed report4 ,the testimony of such a witness as ,baron ,parke1 at the time and on the spot1--he1 too1 aware of the exact position of ,mr4 ,phillips--and that confirmed by ,chief ,justice ,tindal1 is conclusive4 ,to charge him with acting falsehood1 that is1 with presenting the case as it appeared upon the testimony1 earnestly and confidently1 means that he did not do that1 which would have been worse than retiring from his post4 ,the non-professional1 as well as professional public in ,england1 however1 agreed in saying that he would not have been justified in withdrawing from the case3 he was still bound to defend the accused upon the evidence2 though a knowledge of his guilt1 from whatever source derived1 might and ought materially to influence the mode of the defence4 ,no right-minded man1 professional or otherwise1 will contend that it would have been right in him to have lent himself to a defence1 which might have ended1 had it been successful1 in bringing down an unjust suspicion upon an innocent person2 or even to stand up and falsely pretend a confidence in the truth and justice of his cause1 which he did not feel4 ,but there were those on this side of the ,atlantic1 who demurred to the conclusion1 that an advocate is under a moral obligation to maintain the defence of a man who has admitted to him his guilt4 ,men have been known1 however1 under the influence of some delusion1 to confess themselves guilty of crimes which they had not committed3 and hence1 to decline acting as counsel in such a case1 is a dangerous refinement in morals4#ba ,nothing seems plainer than the proposition1 that a person accused of a crime is to be tried and convicted1 if convicted at all1 upon evidence1 and whether guilty or not guilty1 if the evidence is insufficient to convict him1 he has a legal right to be acquitted4 ,the tribunal that convicts without sufficient evidence may decide according to the fact2 but the next jury1 acting on the same principle1 may condemn an innocent man4 ,if this be so1 is not the prisoner in every case entitled to have the evidence carefully sifted1 the weak points of the prosecution exposed1 the reasonable doubts presented which should weigh in his favor8 ,and what offence to truth or morality does his advocate commit in discharging that duty to the best of his learning and ability8 ,what apology can he make for throwing up his brief8 ,the truth he cannot disclose2 the law seals his lips as to what has thus been communicated to him in confidence by his client4 ,he has no alternative1 then1 but to perform his duty4 ,it is his duty1 however1 as an advocate merely1 as ,baron ,parke has well expressed it1 to use ,,all ,,fair ,,arguments ,,arising ,,on ,,the ,,evidence4 ,beyond that1 he is not bound to go in any case2 in a case in which he is satisfied in his own mind of the guilt of the accused1 he is not justified in going4 ,under all circumstances1 the utmost candor should be used towards the client4 ,this is imperatively demanded alike by considerations of duty and interest4 ,it is much better for a man occasionally to lose a good client1 than to fail in so plain a matter4 ,it is nothing but selfishness that can operate upon a lawyer when consulted to conceal from the party his candid opinion of the merits1 and the probable result4 ,it is fair that he should know it2 for he may not choose to employ a man whose views may operate to check his resorting to all lawful means to effect success4 ,besides1 most men1 when they consult an attorney1 wish a candid opinion2 it is what they ask and pay for4 ,it is true1 that it is often very hard to persuade a man that he has not the best side of a lawsuit3 his interest blinds his judgment3 his passion will not allow him to reflect calmly1 and give due weight to opposing considerations4 ,there are many persons who will go from lawyer to lawyer with a case1 until they find one who is willing to express an opinion which tallies with their own4 ,such a client the lawyer1 who acts firmly upon the principle to which ,i have adverted1 will now and then lose2 but even such an one1 when finally unsuccessful1 as the great probability is that he will be1 when he comes to sit down and calculate all that he has lost in time1 money1 and character1 by acting contrary to the advice first given1 will revert to the candid and honest opinion he then received1 and determine1 if ever he gets into another difficulty of the kind1 to resort to that attorney1 and abide by his advice4 ,thus may a man build up for himself a character far outweighing1 even in pecuniary value1 all such paltry particular losses2 it is to such men that the best clients resort2 they have the most important and interesting lawsuits1 and enjoy by far the most lucrative practice4 ,a very important part of the advocate's duty is to moderate the passions of the party1 and where the case is of a character to justify it1 to encourage an amicable compromise of the controversy4 ,it happens too often at the close of a protracted litigation that it is discovered1 when too late1 that the play has not been worth the candle1 and that it would have been better1 calculating everything1 for the successful party never to have embarked in it--to have paid the claim1 if defendant1 or to have relinquished it1 if he was plaintiff4 ,counsel can very soon discover whether such is likely to be the case1 and it cannot be doubted what their plain duty is under such circumstances4 ,besides this1 the advocate is bound in honor1 as well as duty1 to disclose to the client at the time of the retainer1 every circumstance of his own connection with the parties or prior relation to the controversy1 which can or may influence his determination in the selection of him for the office4 ,an attorney is bound to disclose to his client every adverse retainer1 and even every prior retainer1 which may affect the discretion of the latter4 ,no man can be supposed to be indifferent to the knowledge of facts1 which work directly on his interests1 or bear on the freedom of his choice of counsel4 ,when a client employs an attorney1 he has a right to presume1 if the latter be silent on the point1 that he has no engagements which interfere1 in any degree1 with his exclusive devotion to the cause confided to him2 that he has no interest which may betray his judgment or endanger his fidelity4#bb ,it is in some measure the duty of counsel to be the keeper of the conscience of the client2 not to suffer him1 through the influence of his feelings or interest1 to do or say anything wrong in itself1 and of which he would himself afterwards repent4 ,this guardianship may be carefully1 and at the same time kindly exerted4 ,one particular will be mentioned in which its exercise is frequently called for4 ,the client will be often required1 in the course of a cause1 to make affidavits of various kinds4 ,there is no part of his business with his client1 in which a lawyer should be more cautious1 or even punctilious1 than this4 ,he should be careful lest he incur the moral guilt of subornation of perjury1 if not the legal offence4 ,an attorney may have communications with his client in such a way1 in instructing him as to what the law requires him to state under oath or affirmation1 in order to accomplish any particular object in view1 as to offer an almost irresistible temptation and persuasion to stretch the conscience of the affiant up to the required point4 ,instead of drawing affidavits1 and permitting them to be sworn to as a matter of course1 as it is to be feared is too often the case1 counsel should on all occasions take care to treat an oath with great solemnity1 as a transaction to be very scrupulously watched1 because involving great moral peril as well as liability to public disgrace and infamy4 ,it lies especially in the way of the profession to give a high tone to public sentiment upon this all-important subject1 the sacredness of an oath4 ,it is always the wisest and best course1 to have an interview with the client1 and draw from him by questions1 whether he knows the facts which you know he is required to state1 so that you may judge whether1 as a conscientious man1 he ought to make such affidavit4 ,another particular may be adverted to3 the attempt to cover property from the just demands of creditors4 ,it is to be feared that gentlemen of the ,bar sometimes shut their eyes and1 under the influence of feelings of commiseration for an unfortunate client1 feign not to see what is really very palpable to everybody else4 ,surely they ought never to sanction1 directly or indirectly such shams1 especially when the machinery of a judicial sale is introduced more securely to accomplish the object4 ,a purchase is made in the name of a friend for the debtor's benefit and with the debtor's money1 though it may be hard to make that appear by legal evidence4 ,when advice is asked1 as it sometimes is1 how such a thing may be safely and legally done1 the idea held prominently before the party by his counsel should be1 that his estate is the property of his creditors1 and that nothing but their consent will justify an appropriation of any part of it to his benefit4 ,lawyers too may very materially assist in giving a high tone to public sentiment in the matter of stay and exemption laws4 ,it is not every case in which a man has a legal that he has a moral right to claim the benefit of such laws4 ,when a debtor with ample means to pay only wants to harass and worry his creditor1 who has resorted to legal process and obtained a judgment1 by keeping him out of his money1 as it is often expressed1 as long as he can2 or where he wishes to take advantage of hard times to make more than legal interest1 or with concealed means unknown to the execution plaintiff1 claims the exemption3 these are cases which counsel ought to hold up in their proper light to those whom they advise1 and wash their hands of the responsibility of them4 ,according to the ,jewish law1 the cloak or outer garment1 which was generally used by the poorer classes as a covering during sleep1 could not be retained by the creditor to whom it had been given in pledge1 and of course was exempt by law from seizure for debt2 and our blessed ,saviour1 in his sermon on the mount1 has been supposed to refer to this exemption law1 when he said3 ,and if any man will sue thee at the law and take away thy coat1 let him have thy cloak also2 that is1 confine not yourself in your transactions with your fellow-men to giving them simply the strict measure of their legal rights3 give them all that is honestly theirs as far as you have ability1 whether the law affords them a remedy or not4 ,there have been some noble instances of bankrupts who1 upon subsequently retrieving their fortunes1 have fully discharged all their old debts1 principal and interest1 though released or barred by the ,statute of ,limitations2 but such instances would be more common if the spirit of the high and pure morality1 which breathes through the sermon on the mount1 prevailed more extensively4 ,an important clause in the official oath is to delay no man's cause for lucre or malice4 ,it refers1 no doubt1 primarily1 to the cause intrusted to the attorney1 and prohibits him from resorting to such means for the purpose of procuring more fees1 or of indulging any feeling he may have against his client personally4 ,such conduct would be a clear case of a violation of the oath4 ,but it is a question1 also1 whether the case generally1 in which he is retained1 is not comprehended4#bc ,how far1 then1 can he safely go in delaying the cause for the benefit of1 and in pursuance of the instructions of his client8 ,a man comes to him and says3 ,i have no defence to this claim2 it is just and due1 but ,i have not the means to pay it2 ,i want all the time you can get for me4 ,the best plan in such instances1 is1 no doubt1 at once frankly to address his opponent1 and he will generally be willing to grant all the delay which he knows1 in the ordinary course can be gained1 and perhaps more1 as a consideration for his own time and trouble saved4 ,if1 however1 that be impracticable1 it would seem that the suitor has a right to all the delay1 which is incident to the ordinary course of justice4 ,the counsel may take all means for this purpose1 which do not involve artifice or falsehood in himself or the party4 ,the formal pleas put in are not to be considered as false in this aspect1 except such as are required to be sustained by oath4 ,in an ejectment1 for example1 an appearance need not be entered until the second term1 the legislature having seen fit to give that much respite to the unjust possessor of real estate4 ,but to stand by and see a client swear off a case on account of the absence of a material witness1 when he knows that no witness can be material2 or further to make affidavit that his appeal or writ of error is not intended for delay1 when he knows that it is intended for nothing else1 no high-minded man will be privy or consent to such actions1 much less have any active participation in them4 ,subject1 however1 to the qualifications which have been stated1 when a cause is undertaken1 the great duty which the counsel owes to his client1 is an immovable fidelity4 ,every consideration should induce an honest and honorable man to regard himself1 as far as the cause is concerned1 as completely identified with his client4 ,the criminal and disgraceful offence of taking fees of two adversaries1 of allowing himself to be approached corruptly1 whether directly or indirectly1 with a view to conciliation1 ought1 like parricide in the ,athenian law1 to be passed over in silence in a code of professional ethics4#bd ,all considerations of self should be sunk by the lawyer in his duty to the cause4 ,the adversary may be a man of station1 wealth1 and influence2 his good will may be highly valuable to him2 his enmity may do him great injury4 ,he should not permit such thoughts to arise in his mind4 ,he should do his duty manfully1 without fear1 favor1 or affection4 ,at the same time1 let it be observed1 that no man ought to allow himself to be hired to abuse the opposite party4 ,it is not a desirable professional reputation to live and die with1 that of a rough tongue1 which makes a man to be sought out1 and retained to gratify the malevolent feelings of a suitor in hearing the other side well lashed and vilified4 ,an opponent should always be treated with civility and courtesy1 and if it be necessary to say severe things of him or his witnesses1 let it be done in the language1 and with the bearing1 of a gentleman4 ,there is no point in which it becomes an advocate to be more cautious1 than in his treatment of the witnesses4 ,in general1 fierce assaults upon them1 unnecessary trifling with their feelings1 rough and uncivil behavior towards them in cross-examination1 whilst it may sometimes exasperate them to such a pitch1 that they will perjure themselves in the drunkenness of their passion1 still1 most generally tells badly on the jury4 ,they are apt to sympathize with a witness under such circumstances4#be ,it is as well unwise as unprofessional1 in counsel1 to accuse a witness of having forsworn himself1 unless some good ground1 other than the mere instruction of the client1 is present in the evidence to justify it4 ,he may sift most searchingly1 and yet with a manner and courtesy which affords no ground for irritation1 either in witness or opponent2 and in such case1 if his questions produce irritation1 it is a circumstance which will weigh in his favor4 ,the practitioner owes to his client1 with unshaken fidelity1 the exertion of all the industry and application of which he is capable to become perfect master of the questions at issue1 to look at them in all their bearings1 to place himself in the opposite interest1 and to consider and be prepared as far as possible1 for all that may be said or done on the contrary part4 ,the duty of full and constant preparation1 is too evident to require much elaboration4 ,it is better1 whenever it is possible to do so1 to make this examination immediately upon the retainer1 and not to postpone it to later stages in the proceedings4 ,the opportunity is often lost1 of ascertaining facts1 and securing evidence1 from putting off till too late1 the business of understanding thoroughly all that it will be necessary to adduce on the trial4 ,in this way1 a lawyer will attain what is very important1 that his client may be always prepared1 as well as himself1 have his attention alive to his case1 know what witnesses are important1 and keep a watch upon them1 so that their testimony may not be lost1 and upon the movements of his adversary1 lest he should at any time be taken by surprise4 ,it would be an excellent rule for him1 at short stated periods1 to make an examination of the record of every case which he has under his charge4 ,it always operates disadvantageously to an attorney in the eyes of those who employ him1 as well as the public1 when he fails in consequence of some neglect or oversight4 ,frequent applications to the court1 to relieve him from the consequences of his inattention1 tell badly on his character and business4 ,he may be able to make very plausible excuses2 but the public take notice1 that some men with large business never have occasion to make such excuses1 and that other men with less1 are constantly making them4 ,every instance of the kind helps to make up such a character4 ,a young man should be particularly cautious1 and dread such occurrences as highly injurious to his prospects4 ,if he escapes the notice and animadversion of his constituent1 and the legal consequences of his neglect1 by the intervention of the court1 or the indulgence of his opponent1 the members of the ,bar are lynx-eyed in observing such things4 ,it may appear like digressing from our subject1 to speak of such qualities as attention1 accuracy1 and punctuality1 but like the minor morals of common life1 they are little rills which at times unite and form great rivers4 ,a life of dishonor and obscurity1 if not ignominy1 has often taken its rise from the fountain of a little habit of inattention and procrastination4 ,system is everything4 ,it can accomplish wonders4 ,by this alone1 as by a magic talisman1 may time be so economized that business can be attended to and opportunities saved for study1 general reading1 exercise1 recreation1 and society4 ,a man that is young in years1 says ,lord ,bacon1 may be old in hours1 if he has lost no time4 ,hurry and confusion result from the want of system2 and the mind can never be clear when a man's papers and business are in disorder4 ,it is recorded of the pensionary ,de ,witt1 of the ,united ,provinces1 who fell a victim to the fury of the populace in the year #afgb1 that he did the whole business of the republic1 and yet had time left for relaxation and study in the evenings4 ,when he was asked how he could possibly bring this to pass1 his answer was1 that nothing was so easy2 for that it was only doing one thing at a time1 and never putting off anything till to-morrow that could he done to-day4 ,this steady and undissipated attention to one object1 remarks ,lord ,chesterfield1 in relating this anecdote1 is a sure mark of a superior genius4 ,it is of the highest importance1 also1 that a lawyer should in early professional life1 cultivate the habit of accuracy4 ,it is a great advantage over opposing counsel1--a great recommendation in the eyes of intelligent mercantile and business men4 ,a professional note to a merchant carelessly written will often of itself produce an unfavorable impression on his mind2 and that impression he may communicate to many others4 ,the importance of a good handwriting cannot be overrated4 ,a plain legible hand every man can write who chooses to take the pains4 ,a good handwriting is a passport to the favor of clients1 and to the good graces of judges1 when papers come to be submitted to them4 ,it would be a good rule for a young lawyer1 though at first perhaps irksome and inconvenient1 never to suffer a letter or paper to pass from his hands with an erasure or interlineation4 ,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 care1 neatness1 and accuracy4 ,he cannot be faithful to his clients unless he continues to be a hard student of the learning of his profession4 ,not merely that he should thoroughly investigate the law applicable to every case which may be intrusted to him2 though that1 besides its paramount necessity to enable him to meet the responsibility he has assumed to that particular client1 will be the subsidiary means of important progress in his professional acquisitions4 ,let any person1 says ,mr4 ,preston1 study one or two heads of the law fully and minutely1 and he will have laid the foundation or acquired the aptitude for comprehending other heads of the law4#bf ,but1 besides this1 he should pursue the systematic study of his profession upon some well-matured plan4 ,when admitted to the ,bar1 a young man has but just begun1 not finished1 his legal education4 ,if he have mastered some of the most general elementary principles1 and has acquired a taste for the study1 it is as much as can be expected from his clerkship4 ,there are few young men who come to the ,bar1 who cannot find ample time in the first five or seven years of their novitiate1 to devote to a complete acquisition of the science they profess1 if they truly feel the need of it1 and resolve to attain it4 ,the danger is great that from a faulty preparation1--from not being made to see and appreciate the depth1 extent1 and variety of the knowledge they are to seek1 they will mistake the smattering they have acquired for profound attainments4 ,the anxiety of the young lawyer is a natural one at once to get business--as much business as he can4 ,throwing aside his books1 he resorts to the many means at hand of gaining notoriety and attracting public attention1 with a view of bringing clients to his office4 ,such an one in time never fails to learn much by his mistakes1 but at a sad expense of character1 feeling1 and conscience4 ,he at last finds that in law1 as in every branch of knowledge1 a little learning is a dangerous thing2 that what he does not know falsifies often in its actual application that which he supposed he certainly did know2 and after the most valuable portion of his life has been frittered away upon objects unworthy of his ambition1 he is too apt to conclude that it is now too late to redeem his time2 he finds that he has lost all relish for systematic study1 and when he is driven to the investigation of particular questions1 is confounded and embarrassed--unable to thread his way through the mazes of authorities1 to reconcile apparently conflicting cases1 or deduce any satisfactory conclusion from them--in short1 he has no greater aptitude1 accuracy1 and discrimination than when he set out in the beginning of his studies4 ,no better advice can be given to a young practitioner1 than to confine himself generally to his office and books1 even if this should require self-denial and privation1 to map out for himself a course of regular studies1 more or less extended1 according to circumstances1 to aim at mastering the works of the great luminaries of the science1 ,coke1 ,fearne1 ,preston1 ,powell1 ,sugden1 and others1 not forgetting the maxim1 melius est petere fontes quam sectari rivulos1 and to investigate for himself the most important and interesting questions1 by an examination and research of the original authorities4 ,he that reacheth deepest seeth the amiable and admirable1 secrets of the law1#bg and thus may the student proceed in his reading with alacrity1 and set upon and know how to work into with delight these rough mines of hidden treasure4#bh ,it may be allowed here to commend to most serious consideration1 the remarks of one of the most eminent of the profession--,horace ,binney--a gentleman of our own ,bar1 whose example enforces and illustrates their value3 ,there are two very different methods of acquiring a knowledge of the laws of ,england1 and by each of them1 men have succeeded in public estimation to an almost equal extent4 ,one of them1 which may be called the old way1 is a methodical study of the general system of law1 and of its grounds and reasons1 beginning with the fundamental law of estates and tenures1 and pursuing the derivative branches in logical succession1 and the collateral subjects in due order2 by which the student acquires a knowledge of principles that rule in all departments of the science1 and learns to feel as much as to know what is in harmony with the system and what not4 ,the other is1 to get an outline of the system1 by the aid of commentaries1 and to fill it up by the desultory reading of treatises and reports1 according to the bent of the student1 without much shape or certainty in the knowledge so acquired1 until it is given by investigation in the course of practice4 ,a good deal of law may be put together by a facile or flexible man1 in the second of these modes1 and the public are often satisfied2 but the profession itself knows the first1 by its fruits1 to be the most effectual way of making a great lawyer4#bi ,such a course of study as is here recommended1 is not the work of a day or a year4 ,in the meantime let business seek the young attorney2 and though it may come in slowly1 and at intervals1 and promise in its character neither fame nor profit1 still1 if he bears in mind that it is an important part of his training1 that he should understand the business he does thoroughly1 that he should especially cultivate1 in transacting it1 habits of neatness1 accuracy1 punctuality1 and despatch1 candor towards his client1 and strict honor towards his adversary1 it may be safely prophesied that his business will grow as fast as it is good for him that it should grow2 while he gradually becomes able to sustain the largest practice1 without being bewildered and overwhelmed4 ,let him be careful1 however1 not to settle down into a mere lawyer4 ,to reach the highest walks of the profession1 something more is needed4 ,let polite literature be cultivated in hours of relaxation4 ,let him lose not his acquaintance with the models of ancient taste and eloquence4 ,he should study languages1 as well from their practical utility in a country so full of foreigners1 as from the mental discipline1 and the rich stores they furnish4 ,he should cultivate a pleasing style1 and an easy and graceful address4 ,it may be true1 that in a court of justice1 the veriest dolt that ever stammered a sentence1 would be more attended to1 with a case in point1 than ,cicero with all his eloquence1 unsupported by authorities1#cj yet even an argument on a dry point of law1 produces a better impression1 secures a more attentive auditor in the judge1 when it is constructed and put together with attention to the rules of the rhetorical art2 when it is delivered1 not stammeringly1 but fluently2 when facts and principles1 drawn from other fields of knowledge1 are invoked to support and adorn it2 when voice1 and gesture1 and animation1 give it all that attraction which earnestness always and alone imparts4 ,there is great danger that law reading1 pursued to the exclusion of everything else1 will cramp and dwarf the mind1 shackle it by the technicalities with which it has become so familiar1 and disable it from taking enlarged and comprehensive views even of topics falling within its compass as well as of those lying beyond its legitimate domain4 ,an amusing instance of this is said to have occurred in the debate in the ,house of ,commons1 on the great question as to the right of the ,parliament of ,great ,britain to tax the ,colonies4 ,at the close of the discussion1 in which ,fox and ,burke1 as well as others1 had distinguished themselves1 a learned lawyer arose and said that the real point on which the whole matter turned1 had been unaccountably overlooked4 ,in the midst of deep silence and anxious expectation from all quarters of the ,house1 he proceeded to show that the lands of the ,colonies had been originally granted by the ,crown1 and were held ut de honore1 as of the ,manor of ,greenwich1 in the county of ,kent2 and thence he concluded that as the ,manor of ,greenwich was represented in ,parliament1 so the lands of the ,north ,american ,colonies 7by tenure1 a part of the ,manor7 were represented by the knights of the shire for ,kent4#ca ,let me remark1 too1 before hastening to another topic more immediately connected with the duties of active professional life1 that the cultivation of a taste for polite literature has other importance besides its value as a preparation and qualification for practice and forensic contests4 ,nothing is so well adapted to fill up the interstices of business with rational enjoyment1 to make even a solitary life agreeable1 and to smooth pleasantly and honorably the downward path of age4 ,the mental vigor of one who is fond of reading1 other things being equal1 becomes impaired at a much later period of life4 ,the lover of books has faithful companions and friends1 who will never forsake him under the most adverse circumstances4 ,as soon as ,i found1 said ,sir ,samuel ,romilly1 that ,i was to be a busy lawyer for life1 ,i strenuously resolved to keep up my habit of non-professional reading2 for ,i had witnessed so much misery in the last years of many great lawyers1 whom ,i had known1 from their loss of all taste for books1 that ,i regarded their fate as my warning4 ,mr4 ,gibbon was wont to say that he would not exchange his love of reading for the wealth of the ,indies4 ,it is indeed a fortune1 of which the world's reverses can never deprive us4 ,it fortifies the soul against the calamities of life4 ,it moderates1 if it is not strong enough to govern and control the passions4 ,it favors not the association of the cup1 the dice-box1 or the debauch4 ,the atmosphere of a library is uncongenial with them4 ,it clings to home1 nourishes the domestic affections1 and the hopes and consolations of religion4 ,another very delicate and often embarrassing question in the relation of attorney and client is in regard to the subject of compensation for professional services4 ,in all countries advanced in civilization1 and whose laws and manners have attained any degree of refinement1 there has arisen an order of advocates devoted to prosecuting or defending the lawsuits of others4 ,before the tribunals of ,athens1 although the party pleaded his own cause1 it was usual to have the oration prepared by one of an order of men devoted to this business1 and to compensate him liberally for his skill and learning4 ,many of the orations of ,isocrates1 which have been handed down to us1 are but private pleadings of this character4 ,he is said to have received one fee of twenty talents1 about eighteen thousand dollars of our money1 for a speech that he wrote for ,nicocles1 king of ,cyprus4 ,still1 from all that appears1 the compensation thus received was honorary or gratuitous merely4 ,among the early institutions of ,rome1 the relation of patron and client1 which existed between the patrician and plebeian1 bound the former to render the latter assistance and protection in his lawsuits1 with no other return than the general duty1 which the client owed to his patron4 ,as every patrician could not be a sufficiently profound lawyer to resolve all difficulties1 which might arise in the progress of a complex system of government and laws1 though he still might accomplish himself in the art of eloquence1 there arose soon a new order of men1 the jurisconsults4 ,they also received no compensation4 ,on the public days of market1 or assembly1 the masters of the art were seen walking in the forum1 ready to impart the needful advice to the meanest of their fellow-citizens1 from whose votes on a future occasion1 they might solicit a grateful return4 ,as their years and honors increased1 they seated themselves at home1 on a chair or throne1 to expect with patient gravity the visits of their clients1 who at the dawn of day1 from the town and country1 began to thunder at their doors4#cb ,often1 indeed1 the patron was able in his own person to exercise the office both of advocate and counsellor4 ,it was only in the more glorious1 because the more virtuous1 period of the republic1 that the relation was sustained upon so honorable a foundation4 ,in the progress of society1 the business of advocating causes became a distinct profession2 and then it was usual to pay a fee in advance1 which was called a gratuity or present4 ,as this was a mere honorary recompense1 the client was under no legal obligation to pay it4 ,but the result necessarily was1 that if the usual present was not given1 the advocate did not consider himself bound in honor to undertake the advocation of the cause before the courts4 ,afterwards1 ,marcus ,cincius ,alimentus1 the tribune of the people1 procured the passage of the law known as the ,cincian law1 prohibiting the patron or advocate from receiving any money or other present for any cause2 and annulling all gratuities or presents made by the client to the patron or advocate4 ,but as no penalty was prescribed for the breach of the law1 it of course became a dead letter4 ,the ,emperor ,augustus afterwards re-enacted the ,cincian law1 and prescribed penalties for its breach4 ,but towards the end of his reign1 the advocates were again authorized to receive fees or presents from their clients4 ,the ,emperor ,tiberius also permitted them to receive such forced gratuities4 ,this led to the abuse referred to by ,tacitus1 and induced the ,senate to insist upon the enforcement of the re-enactment of the ,cincian law1 or rather a law limiting the amount of the fees of advocates4#cc ,nero revoked the law of ,claudian1 which was subsequently re-enacted by the ,emperor ,trajan1 with the additional restriction that the advocate should not be permitted to receive his fee or gratuity1 until the cause was decided4 ,the younger ,pliny mentions a law1 which authorized the advocate1 after the pleadings in the cause had been made and the judgment had been given1 to receive the fee1 which might be voluntarily offered by the client1 either in money or a promise to pay4 ,erskine1 in his ,institutes of the ,law of ,scotland1 understands the law in the ,digest ,de ,extraordinariis ,cognitionibus as authorizing a suit for the fee of a physician or advocate without a previous agreement for a specific sum4#cd ,the consequences may be best told in the impressive language of the historian of the ,decline and ,fall of the ,empire3 ,the noble art1 which had once been preserved as the sacred inheritance of the patricians1 was fallen into the hands of freedmen and plebeians1 who1 with cunning rather than with skill1 exercised a sordid and pernicious trade4 ,some of them procured admittance into families for the purpose of fomenting differences1 of encouraging suits1 and of preparing a harvest of gain for themselves or their brethren4 ,others1 recluse in their chambers1 maintained the dignity of legal professors1 by furnishing a rich client with subtleties to confound the plainest truth1 and with arguments to color the most unjustifiable pretensions4 ,the splendid and popular class was composed of the advocates1 who filled the ,forum with the sound of their turgid and loquacious rhetoric4 ,careless of fame and of justice1 they are described for the most part1 as ignorant and rapacious guides1 who conducted their clients through a maze of expense1 of delay1 and of disappointment2 from whence1 after a tedious series of years1 they were at length dismissed when their patience and fortune were almost exhausted4#ce ,is not this probably the history of the decline of the profession in all countries from an honorable office to a money-making trade8 ,it is the established law of ,england1 that a counsellor or barrister cannot maintain a suit for his fees4#cf ,there is in that country a class of mere attorneys1 who attend to legal business out of court1 who bring suits and conduct them up to issue2 but who are not allowed to speak in court4 ,this latter privilege is confined to serjeants and barristers4 ,attorneys are regulated by statute1 and are subject to many restrictions2 having a rate of fees1 settled either by statute or established usage2 and required to be fixed by the taxation of an officer of the court before a suit can be brought for them4 ,barristers are admitted only under the regulations established by the various inns of court2 and the serjeants1 who long had the monopoly of the ,bar of the ,common ,pleas1 are appointed by patent from the king4 ,a barrister cannot be an attorney4#cg ,in this country1 there is in general no distinction between attorneys and counsellors4 ,the same persons fulfil the duties of both4 ,hence no difference is made between their right to recover compensation for services in the one capacity or the other4#ch ,in ,pennsylvania1 it was held at one time that an attorney could not recover1 without an express promise1 anything beyond the trifling and totally inadequate sum provided in the fee-bill4 ,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 consideration4#ci ,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 rule4#dj ,it has been departed from in this ,state1 and the early decision overruled1 however2 and it must be frankly admitted1 that the current of decisions in our sister ,states is in the same way4#da ,it is supposed that the ancient rule was artificial in its structure1 and practically unjust1--that it is wholly inconsistent with our ideas of equality to suppose that the business or profession1 by which any one earns the daily bread of himself or of his family1 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 account4#db ,it has been pronounced ridiculous to attempt to perpetuate a monstrous legal fiction1 by which the hard-working lawyers of our day1 toiling till midnight in their offices1 are to be regarded in the eye of the law in the light of the patrician jurisconsults of ancient ,rome1 when ---- dulce diu fuit et solemne1 reclusa ,mane domo vigilare1 clienti promere jura1-- and who at daybreak received the early visits of their humble and dependent clients1 and pronounced with mysterious brevity the oracles of the law4#dc ,these are arguments which are more plausible than sound3 they are imposing1 but not solid4 ,the question really is1 what is best for the people at large1--what will be most likely to secure them a high-minded1 honorable ,bar8 ,it is all-important that the profession should have and deserve that character4 ,a horde of pettifogging1 barratrous1 custom-seeking1 money-making lawyers1 is one of the greatest curses with which any state or community can be visited4 ,what more likely to bring about such a result than a decision1 which strips the ,bar of its character as a learned profession1 on the principle avowed by one court1 that it is now a calling as much as any mechanical art1--or by another1 in effect1 that the order of things is in the present condition of society reversed1 and clients are really the patrons of their attorneys8 ,a more plausible reason is that the client is safer from the oppression of extortionate counsel1 by putting both upon the equal footing of legal right and obligation4 ,it would appear1 however1 better that the parties should make an express agreement before or at the time of retainer1 or that the amount should be left to the justice of the counsel1 and the honor and liberality of the client subsequently4 ,every judge1 who has ever tried a case between attorney and client1 has felt the delicacy and difficulty of saying what is the measure of just compensation4 ,it is to be graduated1 according to a high legal authority1 with a proper reference to the nature of the business performed by the counsel for the client1 and his standing in his profession for learning and skill2 whereby the value of his services is enhanced to his client4#dd ,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 client8 ,how determined1 if necessary to the decision of the question8 ,not surely by the crude opinions of the jurors2 but by testimony of members of the same profession on the subject4 ,this never is done2 it would be a very difficult as well as delicate question for a lawyer to pronounce upon the standing of a professional brother4 ,the most that can be done is to call gentlemen to say what they would have considered reasonable for such services1 had they been performed by themselves4 ,some may testify up to a very high point1 from an excusable1 though foolish vanity2 others to a very low one1 from the despicable1 desire of attracting custom to a cheap shop4#de ,no one can ever have seen such a cause tried without feeling1 that the ,bar had received by it an impulse downwards in the eyes of bystanders and the community4 ,the case is thrown into the jury-box1 to be decided at haphazard1 according as the twelve men may chance to think or feel4 ,he1 who narrowly watches such controversies1 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 extortion4 ,it is not worth while1 however1 to quarrel with the decision4 ,let us inquire rather what should be the course of counsel1 without regard to it4 ,he certainly owes it to his profession1 as well as himself1 that when the client has the ability1 his services should be recompensed2 and that according to a liberal standard4#df ,there are many cases1 in which it will be his duty1 perhaps more properly his privilege1 to work for nothing4 ,it is to be hoped1 that the time will never come1 at this or any other ,bar in this country1 when a poor man with an honest cause1 though without a fee1 cannot obtain the services of honorable counsel1 in the prosecution or defence of his rights4 ,but it must be an extraordinary--a very peculiar case--that will justify an attorney in resorting to legal proceedings1 to enforce the payment of fees4 ,it is better that he should be a loser1 than have a public contest upon the subject with a client4 ,the enlightened ,bar of ,paris1 have justly considered the character of their order involved in such proceedings2 and although by the law of ,france1 an advocate may recover for his fees by suit1 yet they regard it as dishonorable1 and those who should attempt to do it1 would be immediately stricken from the roll of attorneys4#dg ,regard should be had to the general usage of the profession1 especially as to the rates of commission to be charged for the collection of undefended claims4 ,except in this class of cases1 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 be1 are of a very dangerous tendency1 and to be declined in all ordinary cases4 ,in making his charge1 after the business committed to him has been completed1 as an attorney may well take into consideration the general ability of his client to pay1 so he may also consider the pecuniary benefit1 which may have been derived from his services4 ,for a poor man1 who is unable to pay at all1 there may be a general understanding that the attorney is to be liberally compensated in case of success4 ,what is objected to1 is an agreement to receive a certain part or proportion of the sum1 or subject-matter1 in the event of a recovery1 and nothing otherwise4 ,it is unnecessary to inquire here whether such a contract is void as champertous1 and contrary to public policy4 ,none of the ,english statutes on the subject of champerty have been reported as in force here2 but it was once a question whether it was not an offence at common law1 independently altogether1 of any statute enactment4 ,enlightened judges in several of our sister ,states have so considered it4 ,the purchase of a lawsuit1 says ,chancellor ,kent1 by an attorney1 is champerty in its most odious form2 and it ought equally to be condemned on principles of public policy4 ,it would lead to fraud1 oppression1 and corruption4 ,as a sworn minister of the courts of justice1 the attorney ought not to be permitted to avail himself of the knowledge he acquires in his professional character1 to speculate in lawsuits4 ,the precedent would tend to corrupt the profession1 and produce lasting mischief to the community4#dh ,this is not the time nor place1 says ,chief ,justice ,gibson1 to discuss the legality of contingent fees2 though it be clear that if the ,british statutes of champerty were in force here1 such fees would be prohibited by them4 ,but a contract of the sort is certainly not to be encouraged by implication1 from a questionable usage1 nor established by less than a positive stipulation4#di ,a contract to allow a compensation for services in procuring the passage of a private ,act of ,assembly1 has been held to be unlawful and void1 as against public policy4#ej ,the practice1 said ,judge ,rogers1 in delivering the opinion of the court1 which has generally obtained in this ,state1 to allow a contingent compensation for legal services1 has been a subject of regret2 nor am ,i aware of any direct decision by which the practice has received judicial sanction in our courts4 ,the case of ,ex parte ,plitt1#ea however1 recognizes fully the lawfulness of contingent fees1 though in his opinion ,judge ,kane says3 ,it is not a practice to be generally commended1 exposing honorable men not unfrequently to misapprehension and illiberal remark1 and giving the apparent sanction of their example to conduct1 which they would be among the foremost to reprehend4 ,such contracts may sometimes be necessary in a community such as that of ,pennsylvania has been1 and perhaps as it is yet2 and when they have been made in abundant good faith--uberrima fide--without suppression or reserve of fact or exaggeration of apprehended difficulties1 or under influence of any sort or degree2 and when the compensation bargained for is absolutely just and fair1 so that the transaction is characterized throughout by 'all good fidelity to the client1' the court will hold such contracts to be valid4 ,but it is unnecessary to say1 that such contracts1 as they can scarcely be excepted from the general rule1 which denounces as suspicious the dealings of fiduciaries with those under their protection1 must undergo the most exact and jealous scrutiny before they can expect the judicial ratification4 ,finally1 the question of law may be considered as at rest in ,pennsylvania by the decision of the ,supreme ,court in ,patten v4 ,wilson1#eb which recognized an agreement between counsel and client to pay him out of the verdict as an equitable assignment1 and gave effect to it as against an attaching creditor4 ,it is not1 however1 with the lawfulness1 but with the policy and morality of the practice1 that we are now dealing4 ,admitting its legality1 is it consistent with that high standard of moral excellence1 which the members of this profession should ever propose to themselves8 ,let us look at what would be the results of such a practice1 if it became general4 ,if these are bad1 if its tendency is to corrupt and degrade the character of the profession1 then1 however confident any man may feel in his moral power to ward off its evil influences from his own character and conduct1 he should be careful not to encourage and give countenance to it by his example4 ,it is one of that class of actions1 which in particular instances may be indifferent2 but their morality is to be tested by considering what would be the consequences of their general prevalence4 ,it is to be observed1 then1 that such a contract changes entirely the relation of counsel1 to the cause4 ,it reduces him from his high position of an officer of the court and a minister of justice1 to that of a party litigating his own claim4 ,having now a deep personal interest in the event of the controversy1 he will cease to consider himself subject to the ordinary rules of professional conduct4 ,he is tempted to make success1 at all hazards and by all means1 the sole end of his exertions4 ,he becomes blind to the merits of the case1 and would find it difficult to persuade himself1 no matter what state of facts might be developed in the progress of the proceedings1 as to the true character of the transaction1 that it was his duty to retire from it4 ,it places his client and himself in a new and dangerous relation4 ,they are no longer attorney and client1 but partners4 ,he has now an interest1 which gives him a right to speak as principal1 not merely to advise as to the law1 and abide by instructions4 ,it is either unfair to him or unfair to the client4 ,if he thinks the result doubtful1 he throws all his time1 learning1 and skill away upon what1 in his estimation1 is an uncertain chance4 ,he cannot work with the proper spirit in such a case4 ,if he believes that the result will be success1 he secures in this way a higher compensation than he is justly entitled to receive4 ,it is an undue encouragement to litigation4 ,men1 who would not think of entering on a lawsuit1 if they knew that they must compensate their lawyer whether they win or lose1 are ready upon such a contingent agreement to try their chances with any kind of a claim4 ,it makes the law more of a lottery than it is4 ,the worst consequence is yet to be told1--its effect upon1 professional character4 ,it turns lawyers into higglers with their clients4 ,of course it is not meant that these are always its actual results2 but they are its inevitable tendencies1--in many instances its practical working4 ,to drive a favorable bargain with the suitor in the first place1 the difficulties of the case are magnified and multiplied1 and advantage taken of that very confidence1 which led him to intrust his interests to the protection of the advocate4#ec ,the parties are necessarily not on an equal footing in making such a bargain4 ,a high sense of honor may prevent counsel from abusing his position and knowledge2 but all have not such high and nice sense of honor4 ,if our example goes towards making the practice of agreements for contingent fees general1 we assist in placing such temptations in the way of our professional brethren of all degrees--the young1 the inexperienced1 and the unwary1 as well as those whose age and experience have taught them that a lawyer's honor is his brightest jewel1 and to be guarded from being sullied1 even by the breath of suspicion1 with the most sedulous care4 ,a gentleman of the largest experience and highest character for integrity and learning at the ,philadelphia ,bar1 thus strongly confirms the views which have been here expressed on the subject of contingent fees3 ,and further1 says ,mr4 ,price in his concluding advice to students1 at the close of his ,essay on ,limitation and ,lien1 permit me to advise and earnestly to admonish you1 for the preservation of professional honor and integrity1 to avoid the temptation of bargaining for fees or shares of any estate or other claim1 contingent upon a successful recovery4 ,the practice directly leads to a disturbance of the peace of society and to an infidelity to the professional obligation promised to the court1 in which is implied an absence of desire or effort of one in the ministry of the ,temple of ,justice1 to obtain a success that is not just as well as lawful4 ,it is true1 as a just equivalent for many cases honorably advocated and incompetently paid by the poor1 a compensation may and will be received1 the more liberal because of the ability produced by success2 but let it be the result of no bargain1 exacted as a price before the service is rendered1 but rather the grateful return for benefits already conferred4 ,if rigid in your terms1 in protection of the right of the profession to a just and honorable compensation1 let it rather be in the amount of the required retainer1 when it will have its proper influence in the discouragement of litigation4 ,a lawyer should avoid1 as far as possible1 all transactions of business with his clients1 not only in regard to matters in suit in his hands1 but in relation to other matters4 ,he should avoid standing toward them1 either in the relation of borrower or lender4 ,a young practitioner should especially avoid borrowing of any one4 ,let him retrench1 seek the humblest employment of drudgery rather than do it2 but1 if borrow he must1 let it be of any one else than a client4 ,all transactions of business between attorney and client are looked upon with eyes of suspicion and disfavor1 in courts of justice4 ,it is a settled doctrine of equity1 in ,england1 that an attorney cannot1 while the business is unfinished in which he had been employed1 receive any gift from his client1 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 relation4 ,if an attorney accept a gift from one thus connected with him1 it may be recovered in a court of chancery1 by the donor or his creditors1 should it be necessary for them to assert a right to it to satisfy their demands4 ,when the relation of solicitor and client exists1 and a security is taken by the solicitor from his client1 the presumption is that the transaction is unfair2 and the onus of proving its fairness is upon the solicitor4#ed ,a man ought to be very careful of placing himself in a position to have any of his transactions regarded in that light4 ,if it should ever come to be canvassed in court1 the bandying of the phrases1 fraud and presumption of fraud1 as applied to him1 may1 and probably will1 have an unfavorable effect on his reputation4 ,most emphatically should it be said1 let nothing tempt him1 not even the knowledge and consent of the client1 to keep the money1 which may have come to his hands professionally1 one single instant longer than is absolutely necessary4 ,the consequences of any difficulty arising upon this head1 will be fatal to his professional character and prospects4 ,the official oath1 to which reference has already more than once been made1 obliges the attorney to use no falsehood4 ,it seems scarcely necessary to enforce this topic4 ,truth in all its simplicity--truth to the court1 client1 and adversary--should be indeed the polar star of the lawyer4 ,the influence of only slight deviations from truth1 upon professional character1 is very observable4 ,a man may as well be detected in a great as a little lie4 ,a single discovery1 among professional brethren1 of a failure of truthfulness1 makes a man the object of distrust1 subjects him to constant mortification1 and soon this want of confidence extends itself beyond the ,bar to those who employ the ,bar4 ,that lawyer's case is truly pitiable1 upon the escutcheon of whose honesty or truth1 rests the slightest tarnish4 ,let it be remembered and treasured in the heart of every student1 that no man can ever be a truly great lawyer1 who is not in every sense of the word1 a good man4 ,a lawyer1 without the most sterling integrity1 may shine for a while with meteoric splendor2 but his light will soon go out in blackness of darkness4 ,it is not in every man's power to rise to eminence by distinguished abilities4 ,it is in every man's power1 with few exceptions1 to attain respectability1 competence1 and usefulness4 ,the temptations which beset a young man in the outset of his professional life1 especially if he is in absolute dependence upon business for his subsistence1 are very great4 ,the strictest principles of integrity and honor1 are his only safety4 ,let him begin by swerving from truth or fairness1 in small particulars1 he will find his character gone--whispered away1 before he knows it4 ,such an one may not indeed be irrecoverably lost2 but it will be years before he will be able to regain a firm foothold4 ,there is no profession1 in which moral character is so soon fixed1 as in that of the law2 there is none in which it is subjected to severer scrutiny by the public4 ,it is well1 that it is so4 ,the things we hold dearest on earth1--our fortunes1 reputations1 domestic peace1 the future of those dearest to us1 nay1 our liberty and life itself1 we confide to the integrity of our legal counsellors and advocates4 ,their character must be not only without a stain1 but without suspicion4 ,from the very commencement of a lawyer's career1 let him cultivate1 above all things1 truth1 simplicity1 and candor3 they are the cardinal virtues of a lawyer4 ,let him always seek to have a clear understanding of his object3 be sure it is honest and right1 and then march directly to it4 ,the covert1 indirect1 and insidious way of doing anything1 is always the wrong way4 ,it gradually hardens the moral faculties1 renders obtuse the perception of right and wrong in human actions1 weighs everything in the balances of worldly policy1 and ends most generally1 in the practical adoption of the vile maxim1 that the end sanctifies the means4 ,if it be true1 as he has said1 who1 more than any mere man1 before or since his day1 understood the depths of human character1 that one even may1 ,by telling of it1 ,make such a sinner of his memory2 ,to credit his own lie3-- we should be careful never to speak or act1 without regard to the morale of our words or actions4 ,a habit may and will grow to be a second nature4 ,that monster1 custom1 who all sense doth eat1 ,of habit's devil1 is angel yet in this3 ,that to the use of actions fair and good ,he likewise gives a frock or livery ,that aptly is put on4 ,there is no class of men among whom moral delinquency is more marked and disgraceful than among lawyers4 ,among merchants1 so many honest men become involved through misfortune1 that the rogue may hope to take shelter in the crowd1 and be screened from observation4 ,not so the lawyer4 ,if he continues to seek business1 he must find his employment in lower and still lower grades2 and will soon come to verify and illustrate the remark of ,lord ,bolingbroke1 that the profession of the law1 in its nature the noblest and most beneficial to mankind1 is in its abuse and abasement1 the most sordid and pernicious4 ,while such are the depths to which a lawyer may sink1 look1 on the other hand1 at the noble eminence of honor1 usefulness1 and virtue1 to which he may rise4 ,where is the profession1 which1 in this world1 holds out brighter rewards8 ,genius1 indeed1 will leave its mark in whatever sphere it may move4 ,but learning1 industry1 and integrity1 stand nowhere on safer or higher ground1 than in the walks of the law4 ,in all free countries1 it is the avenue not only to wealth1 but to political influence and distinction4 ,in ,england1 a large proportion of the house of peers1 owe their seats and dignities1 as well as their possessions1 either to their own professional success1 or to that of some one of their ancestors4#ee ,in this country1 all our ,presidents but three1 have been educated to the ,bar4 ,of the men who have distinguished themselves in the cabinet1 in the halls of legislation1 and in foreign diplomacy1 how large is the proportion of lawyers6 ,how powerful has always been the profession in guiding the popular mind1 in forming that greatest of all counterchecks to bad laws and bad administration1--public opinion6 ,it is the school of eloquence--that1 which more than all else besides1 has swayed1 still sways1 and always will sway1 the destinies of free peoples4 ,let a man1 to the possession of this noble faculty1 add the high character of purity and justice1 integrity and honor1 and where are to be found the limits of his moral power over his fellow-citizens8#ef ,it is well to read carefully and frequently1 the biographies of eminent lawyers4 ,it is good to rise from the perusal of the studies and labors1 the trials and conflicts1 the difficulties and triumphs1 of such men1 in the actual battle of life1 with the secret feeling of dissatisfaction with ourselves4 ,such a sadness in the bosom of a young student1 is like the tears of ,thucydides1 when he heard ,herodotus read his history at the ,olympic ,games1 and receive the plaudits of assembled ,greece4 ,it is the natural prelude to severer self-denial1 to more assiduous study1 to more self-sustaining confidence4 ,some one has recommended that ,middleton's ,life of ,cicero should be perused1 at frequent intervals1 as the vivid picture of a truly great mind1 in the midst of the most stirring scenes1 ever intent upon its own cultivation and advancement1 as its only true glory2 and that in effect sketched by his own master hand4#eg ,the autobiography of ,edward ,gibbon will rouse an ambitious student like the sound of a trumpet4 ,but of ,english biographies1 there is no one1 it occurs to me1 better adapted to the purpose mentioned1 than the ,life of ,sir ,william ,jones1 by ,lord ,teignmouth4 ,it exhibits the wonders1 which unremitted study1 upheld by the pure and noble ambition of doing good1 can accomplish in the space of a short life4 ,he was a man of the most varied knowledge4 ,an extensive and indeed extraordinary acquaintance with ancient and modern languages1 was perhaps his chief accomplishment4 ,although he engaged very late in life in the study of the law1 such was his industry and success1 that he soon occupied the highest judicial station1 in ,british ,india2 and the profession are indebted to his pen1 for one of the most beautiful of the elementary treatises1 which adorn the lawyer's library4 ,in his early days1 says his biographer1 he seems to have entered upon his career of study1 with this maxim strongly impressed upon his mind1 that whatever had been attained1 was attainable by him2 and it has been remarked1 that he never neglected nor overlooked any opportunity of improving his intellectual faculties1 or of acquiring esteemed accomplishments4 ,notwithstanding his numerous occupations at the ,bar at home1 the onerous duties of his station in ,india1 and his premature death1 before he had attained his forty-eighth year1 he has left behind many learned works1 which illustrate ,oriental languages and history1 and attest the extent of his labors and acquisitions4 ,indeed1 it might be regarded as impossible1 were we not informed of the regular allotment which he made of his time to particular occupations1 and his scrupulous adherence to the distribution he had thus made4 ,the moral character of this eminent man1 was no less exemplary4 ,it is the testimony of one of his contemporaries3 ,he had more virtues and less faults1 than ,i ever yet knew in any human being2 and the goodness of his head1 admirable as it was1 was exceeded by that of his heart4 ,his own measure of true greatness1 humanly speaking1 he has left behind him1 in very emphatic words3 ,if ,i am asked1 who is the greatest man8 ,i answer1 the best4 ,and if ,i am required to say1 who is the best8 ,i reply1 he that has deserved most of his fellow-creatures4#eh ,this department of ,english literature has been recently much enriched by the labors of the present ,lord ,high ,chancellor of ,england1 ,lord ,campbell4 ,in ,america we have a few well written and instructive legal biographies1 among which ought especially to be named1 ,mr4 ,wheaton's ,life of ,william ,pinkney1 and ,professor ,parsons' interesting ,memoir of his distinguished father1 ,chief ,justice ,parsons4 ,mr4 ,binney1 at the close of his honored and honorable life1 is paying the debt1 which every man owes to his profession1 in animated spirit-stirring sketches of his great and good contemporaries4 ,how forcibly does this distinguished jurist illustrate the remark of ,cicero in his ,treatise on ,old ,age3 ,sed videtis1 ut senectus non modo languida atque iners non sit1 verum etiam sit operosa1 et semper agens aliquid et moliens2 tale scilicet1 quod cujusque studium in superiore vita fuit4 ,what a noble example might be held up1 in the life and character of ,chief ,justice ,marshall6 ,his biography1 while it will be the record of active patriotism and humanity1 will exhibit a course of arduous self-training1 for the great conflicts of opinion1 in which it was his lot afterwards to appear1 with so much lustre4 ,he had not the usual advantages of a collegiate education4 ,the war of the ,revolution1 in which his ardent love of country1 and of the principles of rational liberty1 led him to enlist1 and where he distinguished himself in the field1 materially interfered with1 and retarded his earlier professional studies2 yet1 the lofty eminence to which he attained in the opinion of his compatriots1 even of those who could not concur in some of his views of the ,constitution1 the enduring monuments of his greatness in the decisions of the ,supreme ,court of the ,united ,states1 bespeak an intellect of the very first order1 mental power naturally vigorous1 but brought1 by proper exercise1 to a degree of strength that made it tower above the general level of educated men4 ,his opinions do not abound in displays of learning4 ,his simplicity1 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 hand4 ,its reflected consequences on his own fame as a scholar1 a statesman1 or a jurist1 seem never once to have occurred to him4 ,as a judge1 the ,old ,world may be fairly challenged to produce his superior4 ,his style is a model--simple and masculine4 ,his reasoning--direct1 cogent1 demonstrative1 advancing with a giant's pace and power1 and yet withal so easy evidently to him1 as to show clearly1 a mind in the constant habit of such strong efforts4 ,though he filled for so many years the highest judicial position in this country1 how much was his walk like the quiet and unobtrusive step of a private citizen1 conscious of heavy responsibilities1 and anxious to fulfil them2 but unaware that the eyes of a nation--of many nations--were upon him6 ,there was around him none of the glare1 which dazzles2 but he was clothed in that pure mellow light of declining evening1 upon which we love to look4 ,where is the trust to society more sacred1 where are duties more important1 or consequences more extended1 for individual or social weal or woe1 than those which attach to the office he held8 ,how apt1 and aptly said1 is that prayer of ,wolsey1 when he is informed of the promotion of ,sir ,thomas ,more to the place of ,lord ,chancellor3 ,may he 444 do justice1 ,for truth's sake and his conscience2 that his bones1 ,when he has run his course1 and sleeps in blessings1 ,may have a tomb of orphans' tears wept on him4 ,it is surely a just subject of national1 as well as professional pride1 that an ,american lawyer can thus1 pointing to the example of such a man as ,,john ,,marshall1 hold up his character1 his reputation1 his usefulness1 his greatness1 as incentives to high and honorable ambition2 and especially1 his life of unblemished virtue1 and single-hearted purity1--after all1 his highest praise1 for1 as old ,shirley says1 ,when our souls shall leave this dwelling1 ,the glory of one fair and virtuous action ,is above all the scutcheons on our tomb4 ,is it possible that a being so fearfully and wonderfully made as man1 and animated by a spirit still more fearful and incomprehensible1 was created for the brief term of a few revolutions of the planet he lives on8 ,shall his own physical and intellectual productions so long survive him8 ,the massive piles of ,egypt have endured for thousands of years3 fluted column and sculptured architrave have stood for generations1 monuments of his labor and skill4 ,a poem of ,homer1 an oration of ,demosthenes1 an ode of ,horace1 a letter of ,cicero1 carry down to the remotest posterity the memorial of their names4 ,men found empires1 establish constitutions1 promulgate codes of laws2 there have been ,solons1 ,alexanders1 ,justinians1 and ,napoleons4 ,there have been those justly called ,fathers of their country1 and benefactors of their race4 ,have they1 too1 sunk to become clods of the valley8 ,the mind1 which can look so far before and after--can subdue to its mastery the savages of the forests1 and the fiercer elements of ,nature--can stamp the creation of its genius upon the living canvas1 or the almost breathing1 speaking marble--can marshal the invisible vibrations of air into soul-stirring or soul-subduing music--can pour forth an eloquence of words1 with magic power to lash the passions of many hearts into a raging whirlwind1 or command them with a peace1 be still--can make a book1 a little book1 which shall outlive pyramids and temples1 cities and empires--can perceive and love beauty1 in all its forms1 and above all1 moral beauty1 and ,god1 the infinite perfection of moral beauty1--no1 this mind can never die4 ,its moral progress must go on in an unending existence1 of which its life of fourscore years on earth is scarce the childhood4 ,let us beware then of raising these objects of ambition1 wealth1 learning1 honor1 and influence1 worthy though they be1 into an undue importance2 nor in the too ardent pursuit of what are only means1 lose sight of the great end of our being4 ,,appendix4 ,no4 ,i4 ,,courvoisier',s ,,case#ei ,on ,tuesday night1 ,may #eth1 #ahdj1 ,lord ,william ,russell1 infirm1 deaf1 and aged1 being in his seventy-third year1 was murdered in his bed4 ,he was a widower1 living at ,no4 #ad ,norfolk ,street1 ,park ,lane1 ,london1 a small house1 occupied by only himself and three servants1--,courvoisier1 a young ,swiss valet1 and two women1 a cook and house-maid4 ,the evidence was of a character to show very clearly that the crime had been committed by some one in the house2 but1 ,courvoisier's behavior throughout had been that of an innocent man4 ,two examinations of his trunk1 by the officers of the police1 showed nothing suspicious2 rewards having been offered by the government and family of the deceased2 for the detection of the criminal1 a third examination was made of ,courvoisier's box1 which resulted in the discovery of a pair of white cotton gloves1 two pocket handkerchiefs1 and a shirt-front1 stained with blood4 ,the prisoner's counsel went to the trial with a full persuasion of his innocence1 and conducted the cross-examination closely and zealously1 especially of ,sarah ,mancer1 one of the female domestics1 with a view of showing that there was as much probability that the witness or the other domestic was the criminal as the prisoner2 and that the police1 incited by the hopes of the large rewards offered1 had conspired to fasten the suspicion unjustly on him4 ,at the close of the first day's proceedings1 the prosecutors were placed unexpectedly in possession of a new and important item of evidence3 the discovery of the plate of the deceased1 which was missed1 and that it had been left by the prisoner1 at the place where it was found1 about a week1 perhaps only a very few days1 before the committing of the murder4 ,the parcel contained silver spoons1 forks1 a pair of gold auricles1 all unquestionably the property of the unfortunate nobleman2 and the only question remaining was1 whether ,courvoisier was the person who had so left it4 ,if he were1 it would1 of course1 grievously for him1 increase the probabilities that it must have been he who subsequently committed the murder1 and with the object of plunder4 ,on the ensuing morning1 the person who had made this discovery 7,mrs4 ,piolaine1 the wife of a ,frenchman1 who kept a place of entertainment1 called ,l',hotel de ,dieppe1 in ,leicester ,place1 ,leicester ,square71 was shown a number of prisoners in the prison-yard1 one of whom was ,courvoisier1 whom she instantly recognized as the person who had left the plate with her1 and also had formerly lived in her employ4 ,courvoisier also suddenly recognized her1 and with dismay4 ,the immediate effect of his panic was the confession of his guilt to his counsel at the bar of the court1 a few minutes afterwards1 coupled with his desire1 nevertheless1 to be defended to the utmost4 ,his probable object was simply to prepare his counsel against the forthcoming evidence4 ,the prisoner was convicted1 and afterwards confessed his crime4 ,mr4 ,phillips's conduct of the defence was criticized at the time1 in the columns of the ,examiner1 but he suffered it to pass in silence4 ,in #ahdi1 that periodical renewed the accusation originally made1 upon which the following correspondence appeared in the ,london ,times of ,nov4 #bjth1 #ahdi4 ,,to ,,the ,,editor ,,of ,,the ,,times4 ,,sir1--,i shall esteem it a great favor if you will allow the accompanying documents to appear in the ,times4 ,its universal circulation affords me an opportunity of annihilating a calumny recently revived1 which has for nine years harassed my friends far more than myself4 ,i am1 c41 ,,charles ,,phillips4 #ci ,gordon ,square4 ,,inner ,,temple1 ,nov4 #ad1 #ahdi4 ,,my ,,dear ,,phillips1--,it was with pain that ,i heard yesterday of an accusation having been revived against you in the ,examiner newspaper1 respecting alleged dishonorable and most unconscientious conduct on your part1 when defending ,courvoisier against the charge of having murdered ,lord ,william ,russell4 ,considering that you fill a responsible judicial office1 and have to leave behind you a name unsullied by any blot or stain1 ,i think you ought to lose no time in offering1 as ,i believe you can truly do1 a public and peremptory contradiction to the allegations in question4 ,the mere circumstances of your having been twice promoted to judicial office by two lord chancellors1 ,lord ,lyndhurst and ,lord ,brougham1 since the circulation of the reports to which ,i am alluding1 and after those reports had been called to the attention of at least one of those noble and learned lords1 is sufficient evidence of the groundlessness of such reports4 ,some time ago ,i was dining with ,lord ,denman1 when ,i mentioned to him the report in question4 ,his lordship immediately stated that he had inquired into the matter1 and found the charge to be utterly unfounded2 that he had spoken on the subject to ,mr4 ,baron ,parke1 who had sat on the ,bench beside ,chief ,justice ,tindal1 who tried ,courvoisier1 and that ,baron ,parke told him he had1 for reasons of his own1 most carefully watched every word that you uttered1 and assured ,lord ,denman that your address was perfectly unexceptionable1 and that you made no such statements as were subsequently attributed to you4 ,lord ,denman told me that ,i was at liberty to mention this fact to any one2 and expressed in noble and generous terms his concern at the existence of such serious and unfounded imputations upon your character and honor4 ,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 conceive2 and ,i think the testimony of two such distinguished judges ought to be publicly known1 to extinguish every kind of suspicion on the subject4 ,i write this letter to you spontaneously1 and1 hoping that you will forgive the earnestness with which ,i entreat you to act upon my suggestion1 believe me ever yours sincerely1 ,,samuel ,,warren4 ,,mr4 ,,commissioner ,,phillips4 #ci ,,gordon ,,square1 ,nov4 #bj4 ,,my ,,dear ,,warren1--,your truly kind letter induces me to break the contemptuous silence1 with which for nine years ,i have treated the calumnies1 to which you allude4 ,i am the more induced to this by the representations of some valued friends1 that many honorable minds begin to believe the slander because of its repetition without receiving a contradiction4 ,it is with disgust and disdain1 however1 that even thus solicited ,i stoop to notice inventions too abominable1 ,i had hoped1 for any honest man to have believed4 ,the conduct of ,lord ,denman is in every respect characteristic of his noble nature4 ,too just to condemn without proof1 he investigates the facts1 and defends the innocent4 ,his deliberate opinion is valuable indeed1 because proceeding from one who is invaluable himself4 ,my judicial appointments by the noblemen you mention would have entailed on them a fearful responsibility1 had there been any truth in the accusations of which they must have been cognizant4 ,i had no interest whatever with either of these chancellors1 save that derived from their knowledge of my character1 and their observation of my conduct4 ,it is now five-and-twenty years ago since ,lord ,lyndhurst1 when ,i had no friend here1 voluntarily tendered me his favor and his influence1 and his kindness to me remains to this day unabated4 ,of ,lord ,brougham1 my ever warm and devoted friend1 ,i forbear to speak1 because words cannot express my affection or my gratitude4 ,his friendship has soothed some affliction and enhanced every pleasure1 and while memory lasts will remain the proudest of its recollections and the most precious of its treasures4 ,this is no vain-glorious vaunting4 ,the unabated kindness of three of the greatest men1 who ever adorned the ,bench1 ought1 in itself1 to be a sufficient answer to my traducers4 ,such men as these would scarcely have given their countenance to one1 who1 if what were said of him were true1 deserved their condemnation4 ,i am not disposed1 however1 though ,i might be well warranted in doing so1 to shelter myself under the authority of names1 no matter how illustrious4 ,i give to each and all of these charges a solemn and indignant contradiction1 and ,i will now proceed to their refutation4 ,the charges are threefold1 and ,i shall discuss them seriatim4 ,first1 ,i am accused of having retained ,courvoisier's brief after having heard his confession4 ,it is right that ,i should relate the manner of that confession1 as it has been somewhat misapprehended4 ,many suppose it was made to me alone1 and made in the prison4 ,i never was in the prison since ,i was called to the ,bar1 and but once before1 being invited to see it by the then sheriffs4 ,so strict is this rule1 that the late ,mr4 ,fauntleroy solicited a consultation there in vain with his other counsel and myself4 ,it was on the second morning of the trial1 just before the judges entered1 that ,courvoisier1 standing publicly in front of the dock1 solicited an interview with his counsel4 ,my excellent friend and colleague1 ,mr4 ,clarkson1 and myself immediately approached him4 ,i beg of you to mark the presence of ,mr4 ,clarkson1 as it will become very material presently4 ,up to this morning ,i believed most firmly in his innocence1 and so did many others as well as myself4 ,i have sent for you1 gentlemen1 said he1 to tell you ,i committed the murder6 ,when ,i could speak1 which was not immediately1 ,i said1 ,of course then you are going to plead guilty8--,no1 sir1 was the reply1 ,i expect you to defend me to the utmost4 ,we returned to our seats4 ,my position at this moment was1 ,i believe1 without parallel in the annals of the profession4 ,i at once came to the resolution of abandoning the case1 and so ,i told my colleague4 ,he strongly and urgently remonstrated against it1 but in vain4 ,at last he suggested our obtaining the opinion of the learned judge1 who was not trying the cause1 upon what he considered to be the professional etiquette under circumstances so embarrassing4 ,in this ,i very willingly acquiesced4 ,we obtained an interview1 and ,mr4 ,baron ,parke requested to know distinctly whether the prisoner insisted on my defending him1 and1 on hearing that he did1 said1 ,i was bound to do so1 and to use all fair arguments arising on the evidence4 ,i therefore retained the brief1 and ,i contend for it1 that every argument ,i used was a fair commentary on the evidence1 though undoubtedly as strong as ,i could make them4 ,i believe there is no difference of opinion now in the profession that this course was right4 ,it was not until after eight hours' public exertion before the jury that the prisoner confessed2 and to have abandoned him then would have been virtually surrendering him to death4 ,this is my answer to the first charge4 ,i am accused1 secondly1 of having appealed to ,heaven as to my belief in ,courvoisier's innocence1 after he had made me acquainted with his guilt4 ,a grievous accusation6 ,but it is false as it is foul1 and carries its own refutation on its face4 ,it is with difficulty ,i restrain the expression of my indignation2 but respect for my station forbids me to characterize this slander as it deserves4 ,it will not bear one moment's analysis4 ,it is an utter impossibility under the circumstances4 ,what6 appeal to ,heaven for its testimony to a lie1 and not expect to be answered by its lightning8 ,what6 make such an appeal1 conscious that an honorable colleague sat beside me1 whose valued friendship ,i must have forever forfeited8 ,but above all and beyond all1 and too monstrous for belief1 would ,i have dared to utter that falsehood in the very presence of the judge to whom1 but the day before1 ,i had confided the reality6 ,there1 upon the ,bench above me1 sat that time-honored man--that upright magistrate1 pure as his ermine1 narrowly watching every word ,i said4 ,had ,i dared to make an appeal so horrible and so impious--had ,i dared so to outrage his nature and my own conscience1 he would have started from his seat and withered me with a glance4 ,no1 ,warren1 ,i never made such an appeal2 it is a malignant untruth1 and sure ,i am1 had the person who coined it but known what had previously occurred1 he never would have uttered from his libel mint so very clumsy and self-proclaiming a counterfeit4 ,so far for the verisimilitude of this-charge4 ,but ,i will not rest either on improbability1 or argument1 or even denial4 ,i have a better and a conclusive answer4 ,the trial terminated on ,saturday evening4 ,on ,sunday ,i was shown in a newspaper the passage imputed to me4 ,i took the paper to court on ,monday1 and1 in the aldermen's room1 before all assembled1 after reading the paragraph aloud1 ,i thus addressed the judges3--,i take the very first opportunity which offers1 my lords1 of most respectfully inquiring of you whether ,i ever used any such expression8--,you certainly did not1 ,phillips1 was the reply of the late lamented ,lord ,chief ,justice1 and ,i will be your vouchee whenever you choose to call me1--,and ,i1 said ,mr4 ,baron ,parke1 happily still spared to us1 had a reason1 which the ,lord ,chief ,justice did not know1 for watching you narrowly1 and he will remember my saying to him1 when you sat down1 ',brother ,tindal1 did you observe how carefully ,phillips abstained from giving any personal opinion in the case8' ,to this the learned ,chief ,justice instantly assented4 ,this is my answer to the second charge4 ,thirdly1 and lastly1 ,i am accused of having endeavored to cast upon the female servants the guilt1 which ,i knew was attributable to ,courvoisier4 ,you will observe1 of course1 that the gravamen of this consists in my having done so after the confession4 ,the answer to this is obvious4 ,courvoisier did not confess till ,friday3 the cross-examination took place the day before1 and so far1 therefore1 the accusation is disposed of4 ,but it may be said ,i did so in my address to the jury4 ,before refuting this let me observe upon the disheartening circumstances under which that address was delivered4 ,at the close of the1 to me1 most wretched day on which the confession was made1 the prisoner sent me this astounding message by his solicitor3 ,tell ,mr4 ,phillips1 my counsel1 that ,i consider he has my life in his hands4 ,my answer was1 that as he must be present himself1 he would have an opportunity of seeing whether ,i deserted him or not4 ,i was to speak on the next morning4 ,but what a night preceded it6 ,fevered and horror-stricken1 ,i could find no repose4 ,if ,i slumbered for a moment1 the murderer's form arose before me1 scaring sleep away1 now muttering his awful crime1 and now shrieking to me to save his life6 ,i did try to save it4 ,i did everything to save it1 except that which is imputed to me1 but that ,i did not1 and ,i will prove it4 ,i have since pondered much upon this subject1 and ,i am satisfied that my original impression was erroneous4 ,i had no right to throw up my brief1 and turn traitor to the wretch1 wretch though he was1 who had confided in me4 ,the counsel for a prisoner has no option4 ,the moment he accepts his brief1 every faculty he possesses becomes his client's property4 ,it is an implied contract between him and the man who trusts him4 ,out of the profession this may be a moot point1 but it was asserted and acted on by two illustrious advocates of our own day1 even to the confronting of a king1 and1 to the regal honor be it spoken1 these dauntless men were afterwards promoted to the highest dignities4 ,you will ask me here whether ,i contend on this principle for the right of doing that of which ,i am accused1 namely1 casting the guilt upon the innocent8 ,i do no such thing2 and ,i deny the imputation altogether4 ,you will still bear in mind what ,i have said before1 that ,i scarcely could have dared to do so under the eye of ,baron ,parke and in the presence of ,mr4 ,clarkson4 ,to act so1 ,i must have been insane4 ,but to set this matter at rest1 ,i have referred to my address as reported in the ,times--a journal the fidelity of whose reports was never questioned4 ,you will be amazed to hear that ,i not only did not do that of which ,i am accused2 but that ,i did the very reverse4 ,fearing that1 nervous and unstrung as ,i was1 ,i might do any injustice in the course of a lengthened speech1 by even an ambiguous expression1 ,i find these words reported in the ,times1--,mr4 ,phillips said the prosecutors were bound to prove the guilt of the prisoner1 not by inference1 by reasoning1 by such subtile and refined ingenuity as had been used1 but by downright1 clear1 open1 palpable demonstration4 ,how did they seek to do this8 ,what said ,mr4 ,adolphus and his witness1 ,sarah ,mancer8 ,and here he would beg the jury not to suppose for a moment1 in the course of the narrative with which he must trouble them1 that he meant to cast the crime upon either of the female servants4 ,it was not at all necessary to his case to do so4 ,it was neither his interest1 his duty1 nor his policy1 to do so4 ,god forbid that any breath of his should send tainted into the world persons depending for their subsistence on their character4 ,surely this ought to be sufficient4 ,i cannot allude1 however1 to this giant of the press1 whose might can make or unmake a reputation1 without gratefully acknowledging that it never lent its great circulation to these libels4 ,it had too much justice4 ,the ,morning ,chronicle1 the ,morning ,herald1 and the ,morning ,post1 the only journals to which ,i have access1 fully corroborated the ,times1 if1 indeed1 such a journal needed corroboration4 ,the ,chronicle runs thus3--,in the first place1 says my friend ,mr4 ,adolphus1 and says his witness ,sarah ,mancer--and here ,i beg to do an act of justice1 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 nobleman4 ,the ,morning ,post runs thus3 ,mr4 ,adolphus called a witness1 ,sarah ,mancer4 ,but let me do myself justice1 and others justice1 by now stating1 that in the whole course of my narrative with which ,i must trouble you1 ,i beg you would not suppose that ,i am in the least degree seeking to cast the crime upon any of the witnesses4 ,god forbid that any breath of mine should send persons depending on the public for subsistence into the world with a tainted character4 ,i find the ,morning ,herald reporting me as follows3 ,mr4 ,adolphus called a witness named ,sarah ,mancer4 ,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 you1 ,i must beg that you will not suppose that ,i am in the least degree seeking to cast blame upon any of the witnesses4 ,can any disclaimer be more complete8 ,and yet1 in the face of this1 for nine successive years has this most unscrupulous of slanderers reiterated his charge4 ,not quite three weeks ago he recurs to it in these terms3 ,how much worse was the attempt of ,mr4 ,phillips to throw the suspicion of the murder of ,lord ,william ,russell on the innocent female servants1 in order to procure the acquittal of his client ,courvoisier1 of whose guilt he was cognizant8 ,i have read with care the whole report in the ,times of that three hours' speech1 and ,i do not find a passage to give this charge countenance4 ,but surely1 surely1 in the agitated state in which ,i was1 had even an ambiguous expression dropped from me1 the above broad disclaimer would have been its efficient antidote4 ,such is my answer to the last charge2 and1 come what will1 it shall be my final answer4 ,no envenomed reiteration1 no popular delusion1 no importunity of friendship1 shall ever draw from me another syllable4 ,i shall remain in future1 as ,i have been heretofore1 auditor tantum4 ,you know well how strenuously and how repeatedly you pressed me to my vindication1 especially after ,lord ,denman's important conversation with you1 and you know the stern disdain with which ,i dissented4 ,the mens conscia recti1 a thorough contempt for my traducer1 the belief that truth would in the end prevail1 and a self-humiliation at stooping to a defence1 amply sustained me amid the almost national outcry which calumny had created4 ,relying doubtless upon this1 month after month1 for nine successive years1 my accuser has iterated and reiterated his libels in terms so gross1 so vulgar1 and so disgraceful1 that my most valued friends thought it my duty to them publicly to refute them4 ,to that consideration1 and to that alone1 ,i have yielded2 in deference to theirs1 relinquishing my own opinions4 ,if they suppose1 however1 that slander1 because answered1 will be silenced1 they will find themselves mistaken4 ,destroy the web of sophistry--in vain-- ,the creature's at his dirty work again4 ,no1 no1 my dear friend1 invention is a libeller's exhaustless capital1 and refutation but supplies the food on which he lives4 ,he may1 however1 pursue his vocation undisturbed by me4 ,his libels and my answer are now before the world1 and ,i leave them to the judgment of all honorable men4 ,c4 ,,phillips4 ,no4 ,,ii4 ,,course ,,of ,,legal ,,study#fj ,non multa sed multum1 is the cardinal maxim by which the student of law should be governed in his readings2 at the commencement of his studies--in the office of his legal preceptor1 ,,repetition--,,repetition--,,repetition 4 ,blackstone and ,kent1 should be read--and read again and again4 ,these elementary works1 with some others of an immediately practical cast--,tidd's ,practice1 ,stephen's ,pleading1 ,greenleaf's ,evidence1 ,leigh's ,nisi ,prius1 ,mitford's ,equity ,pleading--well conned1 make up the best part of office reading4 ,of course the ,acts of ,assembly should be gone over and over again4 ,i do not say that this is all4 ,the plan of reading1 which ,i am about to recommend1 may be begun in the office4 ,much will depend upon1 what may be termed1 the mental temperament of the student himself1 which no one but the immediate preceptor can observe2 and he will be governed accordingly in the selection of works to be placed in his hands4 ,no lawyer does his duty1 who does not frequently examine his student1 not merely as a necessary means of exciting him to attention1 and application2 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 spur4 ,it is an inestimable advantage to a young man to have a judicious and experienced friend watching anxiously his progress1 and able to direct him1 when1 if left to himself1 he must wander in darkness and danger4 ,there be two things1 says ,lord ,coke1 to be avoided by him as enemies to learning1 praepostera lectio and praepropera praxis4 ,co4 ,litt4 #gj b4 ,i prefer presenting a certain order of subjects to be pursued2 observing1 however1 that it may be somewhat irksome to pursue any one branch for too long a period unvaried4 ,when that is found to be the case1 the last five heads may be adopted as collateral studies1 and pursued simultaneously with the first three4 ,these heads or branches are--#a4 ,real ,estate and ,equity4 #b4 ,practice1 ,pleading1 and ,evidence4 #c4 ,crime and ,forfeitures4 #d4 ,natural and ,international law4 #e4 ,constitutional ,law4 #f4 ,civil ,law4 #g4 ,persons and ,personal ,property4 #h4 ,the ,law of ,executors and ,administrators4 ,i4 ,,real ,,estate ,,and ,,equity4 ,as introductory to this head1 ,lord ,hale's ,history of the ,common ,law may be perused with advantage4 ,it was perhaps a mere sketch1 intended to be afterwards filled up and completed4 ,still1 however1 it is a work of authority1 as indeed is everything which proceeded from the pen of its distinguished author4 ,he is correct and accurate to a remarkable degree4 ,reeves' ,history of the ,english ,law is a full and comprehensive history of the ,english ,law1 accurate and judicious as well as full4 ,lord ,mansfield is said to have advised its author in regard to its plan and execution4 ,in this work the student is presented with all that is necessary that he should know of the earliest law-books1 ,bracton1 ,glanville1 and ,fleta1 carefully collected and presented4 ,the history of the law is separately traced under the reign of each king1 and it may be of advantage to read at the same time some good history or histories of ,england parallel with the work4 ,reeves' ,history of the ,english ,law1 says ,chancellor ,kent1 contains the best account that we have of the progress of the law1 from the time of the ,saxons to the reign of ,elizabeth4 ,it covers the whole ground of the law included in the old abridgments1 and it is a work deserving of the highest commendation4 ,i am at a loss which most to admire1 the full and accurate learning1 which it contains1 or the neat1 perspicuous1 and sometimes elegant style1 in which that learning is conveyed4 #a ,comm4 #ejh4 ,dalrymple's ,essay towards a general ,history of ,feudal ,property in ,great ,britain1 is a brief but learned and philosophical treatise1 which may be followed by ,sullivan's ,lectures on ,feudal ,law1 a work copious in detail and exhibiting ably1 among other topics1 the influence of the feudal system upon the ,modern ,law of ,tenures4 ,sir ,martin ,wright's ,introduction to the ,law of ,tenures is one of the most accurate and profound of the essays on this topic2 and is worthy of the most attentive study4 ,craig de ,feudis was thought by ,lord ,mansfield much preferable to any judicial work which ,england had then produced4 ,with these legal treatises on the feudal system may be read with great advantage1 simultaneously1 ,robertson's ,history of ,charles ,v1 and ,hallam's ,history of the ,middle ,ages4 ,sir ,henry ,finch's ,law1 or ,nomotechnia1 as he entitled it1 may be taken up in this connection4 ,it is said that until the publication of ,blackstone's ,commentaries1 it was regarded as the best elementary book to be placed in the hands of law students2 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 extant3 ,blackstone's ,analysis1 ,preface1 #f4 ,his text1 says ,chancellor ,kent1 was weighty1 concise1 and nervous1 and his illustrations apposite1 clear1 and authentic2 though he adds1 ,but the abolition of the feudal tenures and the disuse of real actions1 have rendered half of his work obsolete1 #a ,comm4 #eji2 an objection1 in the view we take of legal education1 which should rather recommend the work than otherwise4 ,at the same time with ,finch take ,doctor and ,student by ,st4 ,germain--a little book which is replete with sound law1 and has always been cited with approbation as an authority4 ,the ,prefaces to the several volumes of ,lord ,coke's ,reports may be read now with great advantage4 ,they contain much interesting information1 and strongly impregnated as they are with ,lord ,coke's abundant learning and love of the law as a science and profession1 they form an admirable introduction to ,the ,first ,institute1 or ,lord ,coke's ,commentary upon ,littleton's ,tenures4 ,it would be advisable1 ,i think1 to read first in order the sections of ,littleton's ,tenures1 the original treatise upon which ,the ,institute was a commentary4 ,after that1 no time or pains should be spared to master completely ,the ,first ,institute4 ,if the course now prescribed has been followed1 the student will not require to be reminded1 that even those parts1 which seem to relate to obsolete heads of the law1 ought to be read and understood4 ,there is not1 says ,mr4 ,butler1 in the whole of this golden book1 a single line which the student will not in his professional career1 find on more than one occasion eminently useful4 ,there may be some extravagance in this assertion2 but we may nevertheless agree with ,mr4 ,ritso that there is no knowledge of this kind1 which may not1 sooner or later1 be in fresh demand2 there is no length of time or change of circumstances1 that can entirely defeat its operation or destroy its intrinsic authority4 ,like the old specie withdrawn from circulation upon the introduction of a new coinage1 it has always its inherent value2 the ore is still sterling and may be moulded into modern currency4 ,the opinions of ,american lawyers confirm this conclusion4 ,it is well known that ,c4 ,j4 ,parsons was distinguished for his familiarity with the pages of ,the ,institute4 ,it was ,mr4 ,pinkney's favorite law book2 and his arguments at the ,bar1 says his biographer1 ,mr4 ,wheaton1 abounded with perpetual recurrences to the principles and analysis drawn from this rich mine of common law learning4 ,mr4 ,hoffman1 in his ,course of ,legal ,study1 has also borne his testimony to its importance to the ,american practitioner4 ,chancellor ,kent seems1 as ,i have intimated in the note1 to lean rather against ,coke upon ,littleton1 as an ,institute of ,legal ,education1 although he acknowledges its value and authority as a book of reference4 ,it appears to me that after ,coke1 ,preston's ,elementary ,treatise on ,estates may be read with advantage4 ,he is perhaps unnecessarily diffuse and tautological2 but he enters largely into the reasons of the abstruse doctrines of which he treats1 and his work is calculated to lead the student to inquire more earnestly into the philosophy of the science4 ,fearne's ,essay on the ,learning of ,contingent ,remainders1 should then be well studied4 ,if no other book be read over a second time1 it must not be omitted as to this4 ,this volume is occupied in the discussion of points of great difficulty and abstruseness2 yet the style is remarkable for clearness and perspicuity1 and the reasoning is logical and irresistible4 ,a taste or otherwise1 for this book1 will test the student's real progress4 ,after ,fearne1 take up ,sheppard's ,touchstone of ,common ,assurances--a work generally supposed to have been written by ,mr4 ,justice ,doddridge1 and not by ,william ,sheppard1 whose name it bears4 ,it is a most valuable book1 one of the most esteemed and authoritative of the old treatises4 ,there is an edition by ,mr4 ,preston1 but ,i do not recommend it4 ,had he annotated in the common way1 his labors and references would no doubt have increased the value of the book2 but he has taken liberties with the text1--subdividing it1 occasionally changing the phraseology1 and inserting matter of his own3 a course of proceeding in regard to any work1 except a digest or dictionary1 to which ,i cannot be reconciled4 ,the ,touchstone may be followed by ,preston on ,abstracts of ,title1 and ,preston's ,treatise on ,conveyancing4 ,i think that at this period1 as a necessary introduction to the succeeding studies1 some works on ,equity ,jurisprudence should be taken in hand2 as the ,treatise on ,equity of which ,henry ,ballow is the reputed author4 ,it is the text of ,fonblanque's ,equity4 ,it had better be read by itself4 ,disquisitional notes of great length only confuse and confound the student2 and ,mr4 ,marvin has well said that ,fonblanque's ,equity finally expired under the weight of its own notes4 ,to this add ,jeremy's ,treatise on ,equity1 and ,story's ,commentaries on ,equity ,jurisprudence4 ,the student may then read with advantage1 ,powell on ,mortgages1 with ,coventry's ,notes4 ,it is to be lamented that ,mr4 ,coventry did not prepare an original work1 instead of overwhelming the text of ,powell with his learned and valuable labors4 ,chancellor ,kent has remarked1 that between the ,english and ,american editors it is somewhat difficult for the reader to know1 without considerable difficulty1 upon what ground he stands4 ,like the treatise on ,equity1 it has been nearly choked to death in the embraces of its annotators4 ,bacon's ,reading upon the ,statute of ,uses1 is a very profound treatise on that subject1 though evidently left by its great author in an unfinished state4 ,sanders on ,uses and ,trusts1 is a very comprehensive and learned work1 and the subject1 which may be styled the ,metaphysics of the ,law1 requires close attention4 ,hill on ,trustees1 is a practical treatise1 which may here be read with advantage1 as also ,lewis on ,perpetuities4 ,sugden on ,powers1 has been said to be second to no elementary law book4 ,it is a masterly elucidation of the subtle doctrines of the law on the subject of ,powers1 and is held in the highest estimation4 ,it will perhaps be better appreciated and understood1 if with it1 or after it1 is taken up ,chance's ,treatise on ,powers1--a work more diffuse than ,mr4 ,sugden's1 and which examines1 controverts1 and discusses at large many of his positions4 ,sugden on ,vendors and ,purchasers may then follow4 ,the titles on ,leases and ,terms for ,years1 and ,rent1 in ,bacon's ,abridgment1 should be studied4 ,these were the works of ,chief ,baron ,gilbert4 ,after this1 ,woodfall on ,landlord and ,tenant4 ,roscoe's ,treatise on the ,law of ,actions relating to ,real ,property1 may be read as a convenient introduction to ,cruise on ,fines and ,recoveries1 and ,pigott on ,common ,recoveries4 ,to these1 in conclusion of this1 by far the most important and fundamental branch of legal studies1 may be added1 ,powell's ,essay on the ,learning of ,devises1 and ,jarman on ,wills4 ,it will be remarked1 that ,i have not set down in order1 any ,report ,books2 it is not that ,i undervalue that kind of study4 ,it appears to me that in his regular reading1 the student should constantly resort to and examine the principal cases referred to and commented upon by his authors4 ,in this way1 he will read them more intelligently1 and they will be better impressed on his memory4 ,some reports may be read through continuously2 such are ,plowden1 ,hobart1 ,vernon1 and ,i certainly think1 ,johnson's ,chancery ,reports should be thus read4 ,smith's ,leading ,cases is an excellent reading-book of this kind4 ,the student of ,pennsylvania ,law will do well not to omit ,binney's ,reports4 ,but ,i assign no particular place to this kind of study1 because ,i think it may be taken up and laid aside at intervals1 according to the bent of the student's inclination4 ,when1 in any particular part of his course1 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 two1 to some approved and standard ,report ,book2 it will be useful reading1 and he will be able to return refreshed to his proper course4 ,it would extend this ,appendix too much1 if ,i were to go over the remaining parts of the prescribed plan1 with the same particularity as ,i have this first and most important branch4 ,it will be sufficient to indicate merely the books1 and the order in which they may be most profitably read1 under each division4 ,,ii4 ,,practice1 ,,pleading1 ,,and ,,evidence4 ,the ,introduction to ,crompton's ,practice gives a full account of the jurisdiction of the courts1 and the steps by which it was arrived at4 ,this book is sometimes called ,sellon's ,practice1 having been arranged by ,mr4 ,sellon4 ,the fourth part of ,the ,institutes of ,lord ,coke4 ,tidd's ,practice4 ,stephen on ,pleading4 ,saunders' ,reports1 with ,notes by ,williams4 ,broom's ,parties to ,actions4 ,greenleaf on ,evidence4 ,selwyn's ,nisi ,prius4 ,leigh's ,nisi ,prius4 ,mitford's ,pleading in ,equity4 ,story's ,equity ,pleading4 ,barton's ,historical ,treatise of a ,suit in ,equity4 ,newland's ,chancery ,practice4 ,gresley on ,evidence in ,equity4 ,,iii4 ,,crimes ,,and ,,forfeitures4 ,hale's ,history of the ,pleas of the ,crown4 ,foster's ,crown ,law4 ,yorke's ,considerations on the ,law of ,forfeiture for ,high ,treason4 ,the third part of ,the ,institutes of ,lord ,coke4 ,russell on ,crimes and ,misdemeanors4 ,chitty on ,criminal ,law4 ,,iv4 ,,natural ,,and ,,international ,,law4 ,burlamaqui's ,natural and ,political ,law4 ,grotius de ,jure ,belli et ,pacis4 ,rutherford's ,institutes4 ,vattel's ,law of ,nations4 ,bynkershoek ,questiones ,publici ,juris4 ,wicquefort's ,ambassador4 ,bynkershoek de ,foro ,legatorum4 ,mc,intosh's ,discourse on the ,study of the ,law of ,nature and ,nations4 ,wheaton's ,history of ,international ,law4 ,wheaton's ,international ,law4 ,robinson's ,admiralty ,reports4 ,cases in the ,supreme ,court of the ,united ,states4 ,v4 ,,constitutional ,,law4 ,the second part of ,lord ,coke's ,institutes4 ,hallam's ,constitutional ,history of ,england4 ,wynne's ,eunomus4 ,de ,lolme on the ,english ,constitution1 with ,stephens' ,introduction and ,notes4 ,the ,federalist4 ,rawle on the ,constitution4 ,story on the ,constitution4 ,all the cases decided in the ,supreme ,court of the ,united ,states1 on constitutional questions1 to be read methodically1 as far as possible4 ,,vi4 ,,civil ,,law4 ,i consider some study of this head as a necessary introduction to a thorough course on the subjects of ,persons and ,personal ,property1 and the topic1 which is so important in the ,united ,states1 of the ,conflict of ,laws4 ,butler's ,horae ,juridicae4 ,gibbon's ,history of the ,decline and ,fall1 chap4 #dd4 ,justinian's ,institutes4 ,savigny's ,traite de ,droit ,romain4 ,savigny's ,histoire du ,droit ,romain au ,moyen ,age4 ,taylor's ,elements of the ,civil ,law4 ,mackeldy's ,compendium4 ,colquhoun's ,summary of the ,roman ,civil ,law4 ,domat's ,civil ,law4 ,,vii4 ,,persons ,,and ,,personal ,,property4 ,reeves on the ,domestic ,relations4 ,bingham's ,law of ,infancy and ,coverture4 ,roper on ,husband and ,wife4 ,angel and ,ames on ,corporations4 ,les ,,oeuvres de ,pothier4 ,smith on ,contracts4 ,story on ,bailments4 ,jones on ,bailments4 ,story on ,partnership4 ,byles on ,bills4 ,story on ,promissory ,notes4 ,abbott on ,shipping4 ,duer on ,insurance4 ,emerigon ,traite des ,assurances4 ,boulay-,paty ,cour de ,droit ,commercial4 ,story on the ,conflict of ,laws4 ,,viii4 ,,executors ,,and ,,administrators4 ,roper on ,legacies4 ,toller on ,executors4 ,williams on ,executors4 ,the ,law's ,disposal1 by ,lovelass4 ,i believe that the course that ,i have thus sketched1 if steadily and laboriously pursued1 will make a very thorough lawyer4 ,there is certainly nothing in the plan beyond the reach of any young man1 with ordinary industry and application1 in a period of from five to seven years1 with a considerable allowance for the interruptions of business and relaxation4 ,one thing is certain1--there is no royal road to ,law1 any more than there is to ,geometry4 ,the fruits of study cannot be gathered without its toil4 ,it seems the order of ,providence that there should be nothing really valuable in the world not gained by labor1 pain1 care1 or anxiety4 ,in the law1 a young man must be the architect of his own character1 as well as of his own fortune4 ,the profession of the law1 says ,mr4 ,ritso1 is that1 of all others1 which imposes the most extensive obligations upon those who have had the confidence to make choice of it2 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 parties4 ,the laurels that grow within these precincts are to be gathered with no vulgar hands2 they resist the unhallowed grasp1 like the golden branch with which the hero of the ,a,eneid threw open the adamantine gates that led to ,elysium4 ,no4 ,,iii4 ,,the ,,english ,,bar4 ,there are three orders of men at the ,english ,bar3 #a4 ,attorneys1 or ,solicitors in ,chancery4 #b4 ,barristers2 and #c4 ,serjeants4 #a4 ,attorneys and ,solicitors4--,acts of ,parliament have been made for the regulation of this class4 ,the ,stat4 #f #g ,vict4 c4 #gc1 consolidating and amending several of the laws relating to attorneys and solicitors1 prescribes the conditions of admission as an attorney1 the time and mode of their service under articles2 and the oaths to be administered to them2 and authorizes the ,judges of the courts of the common law1 and the ,master of the ,rolls to appoint examiners to examine the fitness and capacity of all persons applying to be admitted as attorneys or solicitors2 and the certificate1 either of the common law or equity examiners1 will be sufficient to entitle a person so examined to admission in all the courts1 examination by both not being necessary4 #c ,stewart's ,blackst4 #bi4 #b4 ,barristers4--,the proper legal denomination of this class is apprentices1 being the first degree in the law conferred by the inns of court4 ,spelman defines apprentice1 tyro1 discipulus1 novitius in aliqua facultate4 ,this was probably the meaning of the term primarily2 but as early as the reign of ,edward ,i1 it was employed to denote counsel below the state and degree of serjeant at law2 one degree corresponding to that of bachelor1 and the other to that of doctor1 in the universities 7,pearce's ,history of the ,inns of ,court1 #bh74 ,lord ,coke informs us1 however1 that this degree was anciently preferred to that of serjeant 7#b ,inst4 #bad74 ,they were termed apprenticii ad legem1 or ad barras2 and hence arose the cognomen of barristers4 ,a barrister must have kept twelve terms1 i4 e41 been three years a member of an inn of court1 before he can be called to the ,bar4 ,after a member of an inn of court has kept twelve terms1 he may1 without being called1 obtain permission to practice under the ,bar4 ,this class of practitioners are called special pleaders or equity draftsmen 7according as they prepare pleadings in the common law or equity courts71 or conveyancers1 who prepare deeds4 #c ,stewart's ,blackst4 #bf1 note4 ,those who are regularly called1 however1 may take upon them the causes of all suitors4 ,such of the barristers as have a patent of precedence1 as king's counsel1 sit within the ,bar1 with the serjeants2 all others are called utter or outer barristers4 #c4 ,serjeants at law4--,servientes ad legem1 or serjeant-countors4 ,the coif or covering to the head worn by this order has also given a denomination to them4 ,there exists some differences of opinion among judicial antiquarians as to the origin of the coif4 ,it is supposed by some to have been invented about the time of ,henry ,,iii1 for the purpose of concealing the clerical tonsure1 and thus disguising those renegade clerks1 who were desirous of eluding the canon1 restraining the clergy from practising as counsel in the secular courts4 ,hortensius1 #cdi4 ,by others it is referred to a much earlier period1 when the practice in the higher courts was monopolized by the clergy1 and those who were not in orders invented the coif to conceal the want of clerical tonsure4 #a ,campbell's ,lives of the ,chief ,justices1 #he1 note4 ,there are1 indeed1 several circumstances to remind us of the ecclesiastical origin of our profession in ,england4 ,the terms--on the festival of ,st4 ,hilary 7,bishop of ,poictiers1 in ,france1 who flourished in the fourth century72 ,easter2 the ,holy ,trinity2 and of the blessed ,michael1 the ,archangel2--the habits of the judges1 their appearance in court in scarlet1 purple1 or black1 at particular seasons--the use of the word brother to denote serjeant1 and laity to distinguish the people at large from the profession--the coif of the serjeants--the bands worn by judges1 serjeants1 and counsel1 and the gown and hood of graduates of the inns of court1--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 ,,iii1 compelling the clergy to abandon the practice of the law in the secular courts 7,pearce's ,history1 #bb74 ,nulles clericus nisi causidicus1 was the character given of the clergy1 soon after the ,conquest1 by ,william of ,malmsbury4 ,the judges1 therefore1 were usually created out of the sacred order1 as was likewise the case among the ,normans2 and all the inferior offices were supplied by the lower clergy1 which has occasioned their successors to be styled clerks to this day 7#a ,bl4 ,com4 #ag74 ,the livings in the gift of the ,chancellor were originally intended as a provision for them1 and an order was made in ,parliament1 #d ,edw4 ,,iii1 that the ,chancellor should give the livings in his gift1 rated at twenty marks and under1 to the ,king's clerks in ,chancery1 the ,exchequer1 and the two ,benches1 according to usage1 and to none others4 #a ,campbell's ,lives of the ,chancellors1 #agj1 note4 ,in the time of ,fortescue1 sixteen years' continuance in the study of the law was the period of time considered a necessary qualification in candidates for the coif4 ,there seems1 however1 never to have been a regulation to that effect2 and it is certain that persons have often been advanced to this degree before that time4 ,by the common law no one can be appointed a judge of the superior courts1 who has not attained the degree of the coif2 which degree can only be conferred on a barrister of one of the four inns of court4 ,as soon as any member of an inn of court is raised by royal writ to the state1 degree1 and dignity of a serjeant-at-law1 he ceases to be a member of the society4 ,he removes to a new hall1 and appears for the future in the inn of court as a guest 7,pearce1 #eb74 ,the most valuable privilege formerly enjoyed by the serjeants 7who1 besides the judges1 were limited to fifteen in number71 was the monopoly of the practice in the ,court of ,common ,pleas4 ,a bill was introduced into ,parliament in the year #agee2 for the purpose of destroying this monopoly2 but it did not pass4 ,in #ahcd1 a warrant under the sign manual of the ,crown was directed to the ,judges of the ,common ,pleas1 commanding them to open that court to the ,bar at large1 on the ground that it would tend to the general dispatch of business4 ,this order was received1 and the court acted accordingly4 ,but in #ahci the matter was brought before the court by the serjeants1 when it was decided that the order was illegal2 ,tindal1 ,c4 ,j41 declaring that1 from time immemorial1 the serjeants have enjoyed the exclusive privilege of practising1 pleading2 and audience in the ,court of ,common ,pleas4 ,immemorial enjoyment is the most solid of all titles2 and we think the warrant of the ,crown can no more deprive the serjeant1 who holds an immemorial office1 of the benefits and privileges which belong to it1 than it could alter the administration of the law within the court itself4 7#aj ,bingh4 #ega2 #f ,bingh4 ,n4 ,c4 #ahg1 #bcb1 #bce47 ,however1 the ,statute #i #aj ,vict4 c4 #ed1 has since extended to all barristers the privileges of serjeants in the ,court of ,common ,pleas4 ,,footnotes3 #a ,this oath seems first to have been prescribed by the ,act of ,assembly1 passed ,august #bb;d1 #ageb3 ,an act for regulating and establishing fees4 7#a ,smith's ,laws1 #bah47 ,it has been copied into the revised ,act of #adth ,april1 #ahcd1 s4 #fi 7,pamphlet ,laws1 #ced71 with the addition of the clause to support the ,constitution of the ,united ,states1 and the ,constitution of this ,commonwealth4 ,in ,england1 by the ,stat4 #d ,henry ,,iv1 c4 #ah 7,a4 ,d4 #adjb71 it was provided1 that all attorneys shall be examined by the ,justices1 and by their discretion1 their names put in the roll1 and they that be good and virtuous1 and of good fame1 shall be received1 and sworn well and truly to serve in their offices1 and especially that they make no suit in a foreign country4 ,the present oath or affirmation is1 that he will truly and honestly demean himself in the practice of an attorney1 according to the best of his knowledge and ability4 ,stat4 #b ,geo4 ,,ii1 c4 #bc 7,a4 ,d4 #agbi72 ,stat4 #f #g ,vict4 c4 #gc4 ,the qualification of a sergeant-at-law1 is given at large in #b ,inst4 #bac2 and in the valuable old book1 ,the ,mirror of ,justices1 chap4 #b1 sec4 #e1 it is said that every countor is chargeable by the oath1 that he shall do no wrong nor falsity1 contrary to his knowledge1 but shall plead for his client the best he can1 according to his understanding4 #b ,hurst's case1 #a ,levins1 #gb2 #a ,sid4 #id1 #aea2 ,raym4 #ef1 #id2 #a ,keb4 #cdi1 #ced1 #chg4 #c ,see ,austin's case1 #e ,rawle1 #bjc4 ,an attorney at law1 says ,c4 ,j4 ,gibson1 is an officer of the court4 ,the terms of the oath1 exacted of him at his admission to the bar1 prove him to be so2 you shall behave yourself in your office of attorney1 c4 ,again3 it is declared in the ,constitution1 ,article #ast1 sec4 #ah 7,art4 #a1 sec4 #ai1 of the amended ,constitution of #ahch71 that no member of ,congress1 or other person holding any office 7except attorney at law1 and in the militia71 shall be a member of either ,house1 c41 which is a direct constitutional recognition4 ,prior to the ,act of #adth ,april1 #ahcd1 which expressly required from them an oath to support the ,constitution of the ,united ,states and the ,constitution of the ,commonwealth of ,pennsylvania1 attorneys at law were invariably held to be within the provisions of ,art4 #f1 sect4 #c1 of the ,constitution of the ,united ,states1 and of ,art4 #h1 of the ,constitution of ,pennsylvania1 requiring all officers1 executive and judicial1 to take the oath to support those constitutions respectively4 ,in ,wood's case 7#a ,hopkins1 #f71 solicitors in chancery were held to be officers1 within the meaning of a similar clause in the ,constitution of ,new ,york4 ,the admission of an attorney1 solicitor1 or counsellor1 says the opinion in that case1 is a general appointment to conduct causes before the courts3 this station1 thus conferred by public authority1 has its peculiar powers1 privileges1 and duties1 and thus becomes an office in the administration of justice4 ,leigh's case 7#a ,munford1 #dfh71 in which it was held1 that attorneys are not officers1 within the meaning of the statute of ,virginia1 requiring all persons holding any office1 or place1 under the commonwealth1 to take an oath against duelling1 does not perhaps conflict with this view4 ,the case of ,byrne's ,admr's v4 ,stewart's ,admr's 7#c ,desaus4 #dgh71 may1 however1 be found upon examination somewhat at variance--not the decision itself1 but the views expressed by ,chancellor ,watres in his opinion4 ,the case simply decided what would seem unquestionable1 that the legislature had a right to prohibit any public officer1 judicial or otherwise1 from practising as an attorney or solicitor4 ,the ,chancellor said1 ,he 7a solicitor7 can he considered in no other light than that of a private agent for the citizens of the country1 who may employ him to do their legal business in the courts2 and although the law requires of him certain qualifications1 and he receives a license from the judges1 yet his office is no more a public one1 than would be any other profession or trade1 which the legislature might choose to subject to similar regulations1 and which is the practice in many other countries4 ,it cannot be doubted1 that a man's trade or profession is his property2 and if a law should be passed avowedly for the purpose of restraining any member of this bar1 who was not a public officer1 from exercising his profession1 ,i should declare such law void4 ,this is to assume high ground2 but the idea that a man's profession or trade cannot be constitutionally interfered with by legislative enactments1 seems scarcely tenable1 and especially1 so far as the profession of the law is concerned1 in view of the absolute power with which every court is clothed1 both as to the admission of their attorneys1 and forejudging or striking them from the roll4 ,act of #adth ,april1 #ahcd1 s4 #gc 7,pamphlet ,laws1 #ced74 ,courts of record and of general jurisdiction1 are vested with exclusive power to regulate the conduct of their own officers1 and in this respect their decisions are put on the same footing with that numerous class of cases1 which is wisely confided to the legal discretion and judgment of the court1 having jurisdiction over the subject-matter4 ,commonwealth v4 ,the ,judges1 #e ,watts ,serg4 #bgb2 ,ex parte ,burr1 #i ,wheat4 #eca2 ,ex parte ,brown1 #a ,howard 7,miss47 ,rep4 #cjf2 ,perry v4 ,state1 #c ,iowa1 #eej2 ,in the matter of ,wills1 #a ,mann1 #cib4 ,the power is one which ought to be exercised with great caution1 but which is1 we think1 incidental to all courts1 and necessary for the preservation of decorum and for the respectability of the profession4 ,marshall ,c4 ,j4 #i ,wheat4 #eca4 #d ,per ,gibson1 ,c4 ,j41 in ,austin's case1 #e ,rawle1 #bjd4 #e ,the exact weight of one hundred silver dollars of the old coinage is #he4icge ounces2 of the new coinage1 #hj ounces4 #f ,ex parte ,carter1 #a ,philada4 ,rep4 #ejg4 ,blaike's ,lessee v4 ,chambers1 #a ,serg4 ,rawle1 #afi4 #g ,court and juries have their respective spheres assigned to them1 within which each is to act and move1 without encroaching upon the jurisdiction or province of the other4 ,in order1 then1 that jurors as well as others may know that the direction and decision of the court1 on any question of law arising in the course of the trial of an issue of fact1 is not to be disregarded1 and that a verdict given against such direction1 whatever it may be1 can never avail anything1 unless it be to occasion additional delay1 trouble1 and expense to the parties1 as also to the public1 the course of the court is to set the verdict aside1 and to order a new trial4 ,and a court1 from whose decisions on questions of law1 an appeal lies1 by writ of error or otherwise1 ought never to depart from this course2 otherwise the party against whom the verdict is given loses the benefit of such appeal1 and of having the question decided by the ,appellate ,court1 which would be a most unjust and illegal deprivation of his right4 ,per ,kennedy1 ,j41 in ,flemming v4 ,marine ,ins4 ,co4 #d ,whart4 #fg4 ,after two concurring verdicts against the direction of the court in point of law1 a new trial will still be awarded4 ,commissioners of ,berks ,county v4 ,ross1 #c ,binn4 #ebj4 ,principles the most firmly established might be overturned1 because a second jury were obstinate and rash enough to persevere in the errors of the first1 in a matter confessed by all to be properly within the jurisdiction of the court2 ,i mean the construction of the law arising from undisputed facts4 ,per ,tilghman1 ,c4 ,j41 ,ibid4 #ebd4 ,it is not necessary to refer to the numerous cases1 both in the ,english and ,american courts1 which accord with these principles4 ,a judicious selection of the leading ones is to be found in the note to #a ,wharton's ,troubat ,haly1 #ebi4 ,the text and the note are confined1 of course1 to civil cases4 #h ,burnet's ,life of ,sir ,matthew ,hale1 #gb4 #i ,an attorney is not answerable for every error or mistake2 he ought not to be liable1 in cases of reasonable doubt4 ,pitt v4 ,yalden1 #d ,burrows1 #bjfj4 ,he shall be protected1 when he acts with good faith1 and to the best of his skill and knowledge4 ,gilbert v4 ,williams1 #h ,mass4 #eg4 ,the want of ordinary care and skill in such a person is gross negligence4 ,holmes v4 ,peck1 #a ,rhode ,island1 ,rep4 #bde2 ,cox v4 ,sullivan1 #g ,georgia1 #add2 ,pennington v4 ,yell1 #f ,engl4 #bab4 ,as between the client and the attorney1 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 alleged2 but in the exercise of the discretionary power usually confided in this country1 and especially when the client resides at a great distance1 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 client4 ,lynch v4 ,the ,commonwealth1 #af ,serg4 ,rawle1 #cfh2 ,stakely v4 ,robison1 #aj ,casey1 #cag4 ,when1 however1 an attorney disobeys the lawful instructions of his client1 and a loss ensues1 for that loss the attorney is responsible4 ,gilbert v4 ,williams1 #h ,mass4 #eg4 ,if the holder of a note place it in the hands of an attorney-at-law1 with instructions to bring suit upon it1 and the attorney1 acting under the honest impression that he would best promote the interests of his client by not bringing suit immediately1 omits to do so1 and the money is afterwards lost by the insolvency of the maker1 the attorney is liable in an action against him2 and the measure of damages is what might have been recovered from the maker of the note1 if suit had been brought when the note was placed in the hands of the attorney for collection4 ,cox v4 ,livingston1 #b ,watts4 ,serg4 #ajc2 ,wilcox v4 ,plummer1 #d ,peters1 #agb4 ,but a client has no right to control his attorney in the due and orderly conduct of a suit1 and it is his duty to do what the court would order to be done1 though his client instruct him otherwise4 ,anon41 #a ,wendell1 #ajh4 #aj ,an attorney is not compelled to appear for any one unless he takes his fee or backs the warrant4 ,anon41 #a ,salk4 #hg4 ,the attorney cannot determine the relation himself1 to his client's detriment4 ,love v4 ,hall1 #c ,yerger1 #djh4 ,when a solicitor appointed by a party has acted as such1 he cannot be displaced by the appointment of another1 without an order of the court4 ,mumford v4 ,murray1 #a ,hopkins1 #cfi4 ,after an attorney has entered his name upon the record1 he cannot withdraw it without leave of the court2 and until so withdrawn the service of a citation upon him in case of appeal is sufficient4 ,united ,states v4 ,curry1 #f ,howard1 ,u4 ,s4 ,rep4 #ajf4 #aa ,a counsel1 attorney1 or solicitor1 will in no case be permitted1 even if he should be willing to do so1 to divulge any matter which has been communicated to him in professional confidence4 ,this is not his privilege1 but the privilege of the client1 and none but the client can waive it4 ,jenkinson v4 ,the ,state1 #e ,blackford1 #dfe2 ,benjamin v4 ,coventry1 #ai ,wendell1 #cec2 ,parker v4 ,carter1 #d ,munf4 #bgc2 ,wilson v4 ,troup1 #g ,johns4 ,ch4 ,rep4 #be2 ,crosby v4 ,berger1 #aa ,paige1 #cgg2 ,bank of ,utica v4 ,mersereau1 #c ,barbour ,ch4 ,rep4 #ebh2 ,aiken v4 ,kilburne1 #bg ,maine1 #beb2 ,crisler v4 ,garland1 #aa ,smedes ,marshall1 #acf2 ,chew v4 ,the ,farmers' ,bank of ,maryland1 #b ,maryland ,ch4 ,decis4 #bca4 ,it will be found in some of these cases that though the counsel declined to be engaged for the client1 yet the facts communicated were held confidential2 the only exception recognized being where a purpose to perpetrate in futuro a felony or an action malum in se was disclosed4 ,bank of ,utica v4 ,mersereau1 #c ,barbour ,ch4 ,rep4 #cgg4 ,in ,moore v4 ,bray1 #aj ,barr1 #eai1 it was held that communications of the object1 for which an assignment of a mortgage was made1 to a counsel concerned for the assignee1 were privileged2 although no question then arose as to the object of the assignment1 and the counsel considered the communication in the light of a casual conversation4 ,the circle of protection1 said ,bell1 ,j41 is not so narrow as to exclude communications a professional person may deem unimportant to the controversy1 or the briefest and lightest talk the client may choose to indulge with his legal adviser1 provided he regards him as such at the moment4 ,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 knowledge1 and to expose to betrayal those very anxieties1 which prompt those in difficulty1 to seek the ear of him in whom they trust in season and out of season4 #ab ,burnet's ,life of ,hale1 #a ,hale's ,works1 #ei1 #fj4 ,he began1 says ,lord ,campbell1 with the specious but impracticable rule of never pleading except on the right side1 which would make the counsel to decide without knowing either facts or law1 and would put an end to the administration of justice4 #a ,lord ,campbell's ,lives of the ,chief ,justices1 #dab4 ,there is the following curious note by ,baxter in ,burnet's ,life of ,hale4 ,and indeed ,judge ,hale would tell me that ,bishop ,usher was much prejudiced against lawyers because the worst causes find their advocates2 but that he and ,mr4 ,selden had convinced him of the reasons of it to his satisfaction2 and that he did by acquaintance with them believe that there were as many honest men among lawyers1 proportionably1 as among any profession of men in ,england 7not excepting bishops or divines74 #a ,hale's ,works1 #ajf4 #ac #b ,wynne's ,eunomus1 #eeg4 #ad ,although ,serjeants have a monopoly of practice in the ,common ,pleas1 they have a right to practice1 and do practice1 at this bar2 and if we were to assign one of them as counsel1 and he were to refuse to act1 we should make bold to commit him to prison4 ,per ,c4 ,j4 ,hale4 #b ,campbell's ,lives of the ,chief ,justices1 #bj2 citing ,freeman1 #chi2 #b ,lev4 #abi2 #c ,keble1 #dbd1 #dci1 #ddj4 #ae ,let the circumstances against a prisoner be ever so atrocious1 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 established1 as the best protection of the liberty and security of the subject4 ,professor ,christian's note to #d ,blackst4 ,com4 #cef4 ,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 practise1 from that moment the liberties of ,england are at an end4 ,if the advocate refuses to defend from what he may think of the charge or of the defence1 he assumes the character of the judge1 nay1 he assumes it before the hour of judgment2 and in proportion to his rank and reputation1 puts the heavy influence of perhaps a mistaken opinion into the scale against the accused1 in whose favor the benevolent principle of ,english law makes all presumptions1 and which commands the very judge to be his counsel4 ,lord ,erskine1 #f ,campbell's ,lives of the ,chancellors1 #cfa4 #af ,per ,gibson1 ,c4 ,j41 in ,rush v4 ,cavenaugh1 #b ,barr1 #ahi4 #ag ,there are many who know not how to defend their causes in judgment1 and there are many who do1 and therefore pleaders are necessary2 so that that which the plaintiffs or actors cannot or know not how to do by themselves1 they may do by their serjeants1 attorneys1 or friends4 ,mirr4 of ,justices1 ch4 #b1 sec4 v4 #ah ,rush v4 ,cavenaugh1 #b ,barr1 #ahi4 ,if the client in any suit furnishes his attorney with a plea which the attorney finds to be false1 so that he cannot plead it for the sake of his conscience1 the attorney may plead in this case1 quod non fuit veraciter informatus1 and in so doing he does his duty4 ,jenkins1 #eb4 #ai ,whewell's ,elements of ,moral and ,political ,science1 vol4 #a1 p4 #beg4 #bj ,law ,magazine1 ,february1 #ahej1 ,may1 #ahed4 ,law ,review1 ,february1 #ahej4 ,several articles on the subject1 taken from the ,english press1 are to be found in ,littell's ,living ,age1 vol4 #bd1 pp4 #agi1 #bcj1 #cjf4 ,i have added1 in an appendix1 ,mr4 ,phillips's vindication of himself from these charges1 in his correspondence with his friend ,mr4 ,warren1 preceded by a brief statement of the case4 #ba ,the civil law will not allow a man to be convicted on his bare confession1 not corroborated by evidence of his guilt2 because there may be circumstances which may induce an innocent man to accuse himself4 ,bowyer's ,commentaries1 #cee1 note4 ,upon a simple and plain confession1 the court hath nothing to do but to award judgment2 but it is usually very backward in receiving and recording such confession out of tenderness to the life of the subject2 and will generally advise the prisoner to retract it and plead to the indictment4 #d ,blackst4 ,comm4 #cbi4 #b ,hale1 ,p4 ,c4 #bbe4 #bb ,per ,story1 ,j41 in ,williams v4 ,read1 #c ,mason1 #dah4 #bc ,in enumerating the things to which every pleader of others' causes ought to have a regard1 the ,mirror of ,justices says1 ,that he put no false dilatories into court1 nor false witnesses1 nor move or offer any false corruptive deceits1 leasings1 or false lies1 nor consent to any such1 but truly maintain his client's cause1 so that it fail not by any negligence or default in him1 nor by any threatening1 hurt1 or villany1 disturb the judge1 plaintiff1 serjeant1 or any other in court1 whereby he hinder the right or the hearing of the cause4 ,chap4 #b1 s4 #e4 ,this is indeed in the very words of the serjeant's oath1 and ,lord ,coke remarks that it consists of four parts3 #a4 ,that he shall well and truly serve the king's people1 as one of the serjeants at law4 #b4 ,that he shall truly counsel them that he shall be retained with1 after his cunning4 #c4 ,that he shall not defer1 wait1 or delay their causes willingly for covetousness of money1 or other thing that may tend to his profit4 #d4 ,that he shall give due attendance accordingly4 #b ,inst4 #bad4 #bd ,a pleader is suspendable when he is attainted to have received fees of two adversaries1 in one cause4 ,mirror of ,justices1 chap4 #b1 sect4 #e4 #be ,it is impossible to state a case1 in which a witness should be treated roughly4 ,if you attempt it1 every one feels offended1 in the person of the witness4 ,you make your work more difficult2 the witness shuts himself up1 considers you as his enemy1 and stands upon his defence3 whereas1 an open countenance1 and an easy insinuating address1 unlocks his breast1 and disarms him of his caution1 if he has any4 ,deinology1 #bbh4 ,this admirable little work1 which has been attributed to the pen of ,lord ,erskine1 cannot be too highly recommended to the student of law4 ,the postscript1 which suggests considerations on the viva voce examination of witnesses1 is particularly worthy a very attentive perusal4 #bf ,preston on ,estates1 #b4 #bg ,co4 ,litt4 #ga a4 #bh ,ibid4 #f a4 #bi ,art4 ,edward ,tilghman1 in the ,encyclopaedia ,americana1 vol4 xiv2 ,the ,leaders of the ,old ,bar of ,philadelphia1 #ej4 ,let me recommend to the attention of the student a curious and interesting work1 entitled ,an introduction to the science of the law1 showing the advantages of a legal education1 grounded on the learning of ,lord ,coke's ,commentaries1 upon ,littleton's ,tenures1 c41 by ,frederick ,ritso1 ,esq4 ,there are few works of celebrity1 in regard to which such opposite opinions have been maintained as the ,commentaries of ,sir ,william ,blackstone4 ,while some have expressed the most enthusiastic admiration1 there have been others1 like ,mr4 ,austin1 ,professor of ,general ,jurisprudence1 in the ,university of ,london 7,outlines of ,lectures1 #fc71 who have dealt in language of unsparing condemnation and contempt4 ,mr4 ,ritso thinks that the error was in adopting them as an institute for the instruction and education of professional students1 which was evidently no part of ,blackstone's plan1 nor within the scope of his engagement4 ,in this point of view1 he objects1 that he represents everything rather for effect1 than with a view to demonstrate4 ,like the gnomon upon the sun-dial1 he takes no account of any hours1 but the serene3 ,et quae1 ,desperat tractata nitescere posse1 relinquit4 ,in a professional point of view1 this solicitude rather to captivate the imagination of the student1 than to exercise and discipline the understanding1 is equally unprofitable and inconvenient4 ,it puts him off with ornamental illustration1 instead of solid argument1 and leads to a sort of half information1 which is often much worse than no information at all upon the subject4 ,there is some force in these remarks2 yet1 too many great lawyers have begun their studies with ,blackstone1 to leave any doubt that it is a proper first book4 ,it paves the way for more repulsive1 though more recondite and valuable works4 ,i very much fear1 indeed1 that a disposition has existed of late years to repudiate ,coke upon ,littleton entirely4 ,chancellor ,kent has shown his leaning in that direction 7,comm4 vol4 i1 #ejf1 #eab74 ,i subscribe fully1 however1 to ,mr4 ,butler's opinion3 ,he is the best lawyer1 and will succeed best in his profession1 who best understands ,coke upon ,littleton4 ,it ought not1 perhaps1 to be placed in the hands of the student until he has made some progress in his reading of other works3 but sooner or later1 he should aim to master it4 ,lord ,coke was1 himself1 deeply imbued with the love of his profession1 and he is able to transfuse his own spirit into his readers4 ,his method may be objectionable in some respects2 but ,i cannot help thinking that the life of his work is gone when it is hacked to pieces1 and then attempted to be fitted together again upon another man's skeleton4 ,i have ventured to add in the ,appendix 7,no4 ,,ii71 a sketch of such a course of reading1 of not very extensive compass1 as may with advantage be pursued by every young man after his admission to the ,bar4 #cj ,maddock's ,chancery4 ,preface4 #ca ,bowyer's ,headings on the ,canon ,law1 p4 #dd4 ,lord ,campbell says that the person here mentioned was ,george ,hardinge--a ,welsh judge and nephew of ,lord ,camden4 #e ,lives of the ,chancellors1 #bj1 #bha4 ,according to ,lord ,mahon1 it was on the #aeth of ,march1 #aghb1 in the debate on a motion of ,sir ,john ,rouse1 of want of confidence in the ministry after the surrender of ,lord ,cornwallis4 ,he ascribes the remark to ,sir ,james ,marriott1 but says that1 although he was the assertor of this singular argument1 the honor of its original invention seems rather to belong to ,mr4 ,hardinge4 #e ,mahon's ,hist4 #aci4 #cb ,gibbon's ,decline and ,fall of the ,roman ,empire1 c4 xliv4 #cc ,continuus inde et saevus accusandis reis ,sicilius1 multique audaciae ejus aemuli4 ,nam cuncta legum et magistratuum munia in se trahens ,princeps1 materiam praedandi patefecerat4 ,nec quidquam publicae mercis tam venale fuit1 quam advocatorum perfidia3 adeo ut ,samius insignis eques ,romanus1 quadringentis nummorum millibus1 ,sicilio datis1 et cognita prevaricatione1 ferro in domo ejus incubuerit4 ,igitur incipiente ,c4 ,silio consule designato1 cujus de potentia et exitio in tempore memorabo1 consurgunt patres1 legemque ,cinciam flagitant1 qua cavetur antiquitus ne quis ob causam orandam pecuniam donumve accipiat4 ,tacit4 ,annul4 #a4 #aa1 c4 #e4 #cd ,chancellor ,walworth1 in ,adams v4 ,stevens1 #bf ,wendell1 #ba4 ,while expressing1 as will be seen presently1 the opinion that authority as well as sound policy would have led me to a different conclusion from that at which ,chancellor ,walworth arrived1 it is proper to acknowledge that ,i have drawn largely upon his learned judgment in this case1 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 him4 #ce ,gibbon's ,decline and ,fall1 c4 xvii4 #cf #c ,blackst4 ,com4 #bh2 ,davis ,pref4 #bb2 #a ,chanc4 ,rep4 #ch2 ,davis1 #bc2 ,hodgson v4 ,scarlett1 #a ,b4 ,ald4 #bcb2 ,finch4 ,l4 #ahh2 and see ,butler's note to #a ,co4 ,litt4 #bie a4 ,so it is with the advocates in the civil law4 ,vost ad ,pand4 tit4 de ,postal4 ,numb4 #f1 #g1 #h2 ,gravina de ,oster4 lib4 #a1 s4 #db1 #dc1 #dd4 ,boucher ,d',asyis1 ,hist4 ,abrege de ,l',order des ,avocats1 c4 iv4 ,see also the commencement of the ,dialogue des ,avocats du ,parl4 de ,paris1 by ,loisil1 which contains curious particulars throughout respecting the ancient ,french ,bar4 ,an amusing anecdote is related of ,pasquier1 the famous ,french advocate4 ,in #aehc1 while he was attending the assizes 7les grands jours7 at ,troyes1 he sat for his portrait1 and after the painter had finished the likeness1 which ,pasquier had not yet examined1 he asked him to represent him with a book in his hand4 ,the painter said that it was too late1 as the picture was completed without hands4 ,upon this the witty lawyer immediately wrote the following lines as a motto for the portrait3 ,nulla hic ,pascasio manus est3 ,lex ,cincia quippe ,causidicos nulla sanxit habere manus4 ,forsyth's ,hortensius1 #dbd4 #cg ,the reader will find in the ,appendix1 ,no4 ,,iii1 an account of the different orders of the ,english ,bar4 #ch ,in some ,states1 the professions of attorney and counsellor at law are not distinct2 the same person conducts the cause in all its stages2 and it has not been considered that his authority ceases when judgment is obtained4 ,the attorney is in some degree the agent as well as the attorney of the party4 ,huston1 ,j41 in ,lynch v4 ,the ,commonwealth1 #af ,serg4 ,rawle1 #cfh4 #ci ,mooney v4 ,lloyd1 #e ,serg4 ,rawle1 #daf4 #dj ,hornblower1 ,c4 ,j41 in ,seeley et al4 v4 ,crane1 #c ,green1 ,n4 ,j4 #ce4 ,i shall be sorry to see the honorary character of the fees of barristers and physicians done away with4 ,though it seems to be a shadowy distinction1 yet ,i believe it to be beneficial in effect4 ,it contributes to preserve the idea of profession1 of a class which belongs to the public1 in the employment and remuneration of which no law interferes1 but the citizen acts as he likes1 'foro conscientiae4' ,coleridge's ,table ,talk1 vol4 #b4 #da ,gray v4 ,brackenridge1 #b ,penna4 ,rep4 #aha2 ,foster v4 ,jack1 #d ,watts1 #cc4 ,in ,new ,jersey1 an advocate's fees are not recoverable at law4 ,shaver v4 ,norris1 ,penning4 #fc2 ,seeley v4 ,crane1 #c ,green1 #ce2 ,van ,alter v4 ,mc,kinney's ,exrs4 #a ,harrison1 #bcf4 ,that the general current of decisions is in the opposite direction1 will be seen by consulting ,stevens v4 ,adams1 #bc ,wendell1 #eg2 ,s4 ,c4 #bf ,wendell1 #dea2 ,newman v4 ,washington1 ,martin ,yerger1 #gi2 ,stevens v4 ,monges1 #a ,harrington1 #abg2 ,bayard v4 ,mc,lane1 #c ,harrington1 #bag2 ,duncan v4 ,beisthaupt1 #a ,mc,cord1 #adi2 ,downing v4 ,major1 #b ,dana1 #bbh2 ,christy v4 ,douglas1 ,wright's ,ch4 ,rep4 #dhe2 ,webb v4 ,hepp1 #ad ,missouri1 #ced2 ,vilas v4 ,downer1 #ba ,vermont1 #dai2 ,lecatt v4 ,sallee1 #c ,porter1 #aae2 ,easton v4 ,smith1 #a ,e4 ,d4 ,smith1 #cah4 #db ,chancellor ,walworth1 in ,adams v4 ,stevens1 #bf ,wendell1 #dea2 ,foster v4 ,jack1 #d ,watts1 #ccg4 #dc ,senator ,verplanck1 in ,adams v4 ,stevens1 #bf ,wendell1 #dea4 #dd ,vilas v4 ,downer1 #ba ,vermont1 #dai4 ,responsibility in a confidential employment is a legitimate subject of compensation1 and in proportion to the magnitude of the interests committed to the agent4 ,kentucky ,bank v4 ,combs1 #g ,barr1 #edc4 #de ,that evidence of usage is admissible to show what is the rule of compensation for similar services to those sued for1 see ,vilas v4 ,downer1 #ba ,vermont1 #dbd2 ,badfish v4 ,fox1 #bc ,maine1 #id4 #df ,concerning the pleader's salary1 says the ,mirror1 chap4 #b1 sec4 #e1 four things are to be regarded3 #a4 ,the greatness of the cause4 #b4 ,the pains of the serjeant4 #c4 ,his worth1 as his learning1 eloquence1 and gift4 #d4 ,the usage of the court4 #dg ,les lois et les docteurs1 les anciennes ordonnances et plusieurs anciens arrets donnent aux avocats une action pour le paiement de leurs honoraires3 mais1 suivant la derniere jurisprudence du ,parlement de ,paris et la discipline actuelle du barreau1 ou ne souffre point qu'un avocat intente une telle action4 #a ,dupin1 ,profession d',avocat1 #aaj4 ,il est possible1 que l'usage ne soit qu'un prejuge2 mais ce prejuge a eu une salutaire influence sur la splendeur du barreau ,francais4 ,on ne pretend pas1 en ,france1 qu'un avocat n'a pas droit a un honoraire pour prix de ses travaux4 ,jamais on n'a refuse d'en allouer a ceux qui en ont reclame4 ,dans plusieurs barreaux1 ces reclamations sont meme tolerees4 ,mais le barreau de ,paris s'est montre plus severe2 et non seulement autrefois1 mais encore aujourd'hui1 tout avocat a la cour qui actionnerait un client en paiement d'honoraires serait raye du tableau4 ,du reste1 s'il est defendu d'exiger1 il est permis de recevoir tout ce que le client veut bien assigner pour prix aux services de son avocat1 en raison de ses peines et de l'importance des travaux4 ,ibid4 #fih4 ,les honoraires dus par les parties aux avocats charges du soin de leur defense1 ne doivent pas etre restraints a la taxe etablie par le tarif4 ,cette taxe a pour objet seulement de fixer la somme due par la partie qui succombe1 et non d'apprecier les soins de l'avocat1 appreciation qui doit etre faite selon l'importance et la difficulte du travail4 ,ibid4 #fii4 #dh ,arden v4 ,patterson1 #e ,johns4 ,ch4 ,rep4 #dh4 #di ,foster v4 ,jack1 #d ,watts1 #cch1 #cci4 #ej ,clippinger v4 ,hepbaugh1 #e ,watts4 ,serg4 #cae2 ,marshall v4 ,the ,baltimore and ,ohio ,railroad ,co41 #af ,howard 7,s4 ,c47 ,rep4 #ccf4 ,that champerty is an offence at common law1 and that contracts of that character1 between client and counsel1 are void on that ground1 and as against public policy1 will be found to have been maintained in ,rust v4 ,larue1 #d ,litt4 #daa2 ,caldwell's ,administrators v4 ,shepherd's ,heirs1 #f ,monroe1 #cia2 ,thurston v4 ,percival1 #a ,pick4 #dae2 ,arden v4 ,patterson1 #e ,johns4 ,ch4 ,rep4 #dh2 ,bleakley's case1 #e ,paige1 #caa2 ,wallis v4 ,loubert1 #b ,denio1 #fjg2 ,backus v4 ,byron1 #d ,michigan1 #ece2 ,elliott v4 ,mc,clelland1 #ag ,alabama1 #bjf4 ,the cases on the other side1 are1 ,thallhimer v4 ,brinckerhoff1 #c ,cowen1 #fdc2 ,ramsay's ,devisees v4 ,trent1 #aj ,b4 ,monroe1 #ccf2 ,bayard v4 ,mc,lane1 #c ,harrington1 #baf2 ,lytle v4 ,state1 #ag ,arkansas1 #fjh2 ,newkirk v4 ,cone1 #ah ,illinois1 #ddi2 ,major v4 ,gibson1 #a ,patton ,jr4 ,heath 7,va471 #dh2 ,wright v4 ,meek1 #c ,iowa1 #dgb4 ,in ,new ,york1 by the ,revised ,statutes1 it was made an offence1 punishable by fine or imprisonment1 and removal from the ,bar1 for any attorney1 counsellor1 or solicitor1 directly or indirectly to buy1 or be in any manner interested in buying1 or to advance or procure money to be advanced upon anything in action1 with the intent1 or for the purpose of bringing any suit thereon4 #b ,revised ,stat4 #chf4 ,the ,code of ,procedure appears to have changed the law in this respect1 and to enable parties to make such bargains as they please with their attorneys4 ,code of ,procedure1 s4 #beh2 ,satterlee v4 ,frazer1 #b ,sandf4 ,s4 ,c4 ,rep4 #adb2 ,benedict v4 ,stuart1 #bc ,barb4 #dbj2 ,ogden v4 ,des ,arts1 #d ,duer 7,n4 ,y471 #bge2 ,sedgwick v4 ,stanton1 #d ,kernan1 #bhi4 ,in ,kentucky there appears to be a statute1 which provides that any one not a party1 receiving as compensation for services in prosecuting or defending a suit the whole or part of the subject-matter in suit1 is guilty of champerty1 and it has been held that this statute extends to attorneys4 ,davis v4 ,sharron1 #ae ,b4 ,monroe1 #fd4 ,in ,england1 contingent fees are held to be clearly within the statutes of champerty and maintenance4 ,penrice v4 ,parker1 ,rep4 ,temp4 ,finch1 #ge4 #ea #b ,wallace1 ,jr4 ,rep4 #deb4 #eb #aj ,casey1 #bii4 #ec ,paciscendi quidem ille piraticus mos2 et imponentium periculis pretia1 procul abominanda negotiatio1 etiam a mediocriter improbis aberit3 cum praesertim bonos homines bonasque causas tuenti non sit metuendus ingratus1 qui si futurus1 malo tamen ille peccet4 ,quinct4 ,lib4 xii1 c4 #g4 #ed ,evans v4 ,ellis1 #e ,denio1 #fdj2 ,newman v4 ,payne1 #b ,ves4 #aii2 ,walmsley v4 ,booth1 #c ,atk4 #be2 ,montesquieu v4 ,sandys1 #ah ,ves4 #cac4 ,the doctrine has been fully followed in this country2 ,stockton v4 ,ford1 #aa ,how4 ,u4 ,s4 #bdg2 ,starr v4 ,vanderheyden1 #i ,johns4 #bec2 ,howell v4 ,ransom1 #aa ,paige1 #ech2 ,de ,rose v4 ,fay1 #d ,edw4 ,ch4 #dj2 ,lewis v4 ,j4 ,a41 ,ibid4 #eii2 ,berrien v4 ,mc,lane1 #a ,hoffman1 ,ch4 ,rep4 #dbd2 ,miles v4 ,ervin1 #a ,mc,cord1 ,ch4 ,rep4 #ebd2 ,rose v4 ,mynell1 #g ,yerger1 #cj2 ,bibb v4 ,smith1 #a ,dana1 #dhb2 ,smith v4 ,thompson's ,heirs1 #g ,b4 ,monroe1 #cjh2 ,jennings v4 ,mc,connel1 #ag ,illinois1 #adh4 ,an agreement made by a client with his counsel1 after the latter had been employed in a particular business1 by which the original contract is varied1 and greater compensation is secured to the counsel than may have been agreed upon when first retained1 is invalid and cannot be enforced4 ,lecatt v4 ,sallee1 #c ,porter1 #aae4 #ee ,in ,foss's ,grandeur of the ,law1 eighty-two existing peerages are stated to have sprung from the law4 ,that was in #ahdc4 #ef ,non merum1 si ob hanc facultatem homines saepe etiam non nobiles consulatum consecuti sunt3 praesertim cum haec eadem res plurimas gratias1 firmissimas amicitias1 maxima studia pariat4 ,cic4 pro ,muraena4 #eg ,vivit1 vivetque per omnium saeculorum memoriam4 ,dumque hoc vel forte vel providentia vel utcunque constitutum rerum naturae corpus1 quod ille paene solus ,romanorum animo vidit1 ingenio complexus est1 eloquentia illuminavit1 manebit incolume3 comitem aevi sui laudem ,ciceronis trahet2 omnisque posteritas illius in te scripta mirabitur1 tuum in eum factum execrabitur3 citiusque in mundo genus hominum1 quam cadet4 ,vell4 ,patere4 ,l4 #b4 #eh ,sir ,william ,jones adds to his other claims upon our admiration that of a decided partiality to the character and fortunes of our ,american ,republics4 ,the sum of my opinion is1 says he1 that while all the ,american people understand the modern art of war1 and learn jurisprudence by serving in rotation upon grand and petit juries1 their liberty is secure1 and they will certainly flourish most when their public affairs are best administered by their ,senate and ,councils4 ,i cannot think a monarchy or an oligarchy stronger in substance1 whatever they may be in appearance1 than a popular government4444 ,i shall not die in peace without visiting your ,united ,states for a few months before the close of the eighteenth century4 ,may ,i find wisdom and goodness in your ,senate1 arms and judicature1 which are power1 in your commons1 and the blessings of wealth and peace equally distributed among all4 #b ,wynne's ,eunomus1 #cei1 note4 #ei ,note at p4 #dg4 #fj ,note at p4 #ge4