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An Essay on Professional Ethics - Second Edition
by George Sharswood
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It appears to me that after Coke, Preston's Elementary Treatise on Estates may be read with advantage. He is perhaps unnecessarily diffuse and tautological; but he enters largely into the reasons of the abstruse doctrines of which he treats, and his work is calculated to lead the student to inquire more earnestly into the philosophy of the science. Fearne's Essay on the Learning of Contingent Remainders, should then be well studied. If no other book be read over a second time, it must not be omitted as to this. This volume is occupied in the discussion of points of great difficulty and abstruseness; yet the style is remarkable for clearness and perspicuity, and the reasoning is logical and irresistible. A taste or otherwise, for this book, will test the student's real progress. After Fearne, take up Sheppard's Touchstone of Common Assurances—a work generally supposed to have been written by Mr. Justice Doddridge, and not by William Sheppard, whose name it bears. It is a most valuable book, one of the most esteemed and authoritative of the old treatises. There is an edition by Mr. Preston, but I do not recommend it. Had he annotated in the common way, his labors and references would no doubt have increased the value of the book; but he has taken liberties with the text,—subdividing it, occasionally changing the phraseology, and inserting matter of his own: a course of proceeding in regard to any work, except a digest or dictionary, to which I cannot be reconciled. The Touchstone may be followed by Preston on Abstracts of Title, and Preston's Treatise on Conveyancing.

I think that at this period, as a necessary introduction to the succeeding studies, some works on Equity Jurisprudence should be taken in hand; as the Treatise on Equity of which Henry Ballow is the reputed author. It is the text of Fonblanque's Equity. It had better be read by itself. Disquisitional notes of great length only confuse and confound the student; and Mr. Marvin has well said that Fonblanque's Equity "finally expired under the weight of its own notes." To this add Jeremy's Treatise on Equity, and Story's Commentaries on Equity Jurisprudence. The student may then read with advantage, Powell on Mortgages, with Coventry's Notes. It is to be lamented that Mr. Coventry did not prepare an original work, instead of overwhelming the text of Powell with his learned and valuable labors. Chancellor Kent has remarked, that between the English and American editors it is "somewhat difficult for the reader to know, without considerable difficulty, upon what ground he stands." Like the treatise on Equity, it has been nearly choked to death in the embraces of its annotators. Bacon's Reading upon the Statute of Uses, is a very profound treatise on that subject, though evidently left by its great author in an unfinished state. Sanders on Uses and Trusts, is a very comprehensive and learned work, and the subject, which may be styled the Metaphysics of the Law, requires close attention. Hill on Trustees, is a practical treatise, which may here be read with advantage, as also Lewis on Perpetuities. Sugden on Powers, has been said to be second to no elementary law book. It is a masterly elucidation of the subtle doctrines of the law on the subject of Powers, and is held in the highest estimation. It will perhaps be better appreciated and understood, if with it, or after it, is taken up Chance's Treatise on Powers,—a work more diffuse than Mr. Sugden's, and which examines, controverts, and discusses at large many of his positions. Sugden on Vendors and Purchasers may then follow.

The titles on Leases and Terms for Years, and Rent, in Bacon's Abridgment, should be studied. These were the works of Chief Baron Gilbert. After this, Woodfall on Landlord and Tenant.

Roscoe's Treatise on the Law of Actions relating to Real Property, may be read as a convenient introduction to Cruise on Fines and Recoveries, and Pigott on Common Recoveries.

To these, in conclusion of this, by far the most important and fundamental branch of legal studies, may be added, Powell's Essay on the Learning of Devises, and Jarman on Wills.

It will be remarked, that I have not set down in order, any Report Books; it is not that I undervalue that kind of study. It appears to me that in his regular reading, the student should constantly resort to and examine the principal cases referred to and commented upon by his authors. In this way, he will read them more intelligently, and they will be better impressed on his memory. Some reports may be read through continuously; such are Plowden, Hobart, Vernon, and I certainly think, Johnson's Chancery Reports should be thus read. Smith's Leading Cases is an excellent reading-book of this kind. The student of Pennsylvania Law will do well not to omit Binney's Reports. But I assign no particular place to this kind of study, because I think it may be taken up and laid aside at intervals, according to the bent of the student's inclination. When, in any particular part of his course, 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 two, to some approved and standard Report Book; it will be useful reading, and he will be able to return refreshed to his proper course.

It would extend this Appendix too much, if I were to go over the remaining parts of the prescribed plan, with the same particularity as I have this first and most important branch. It will be sufficient to indicate merely the books, and the order in which they may be most profitably read, under each division.

II. PRACTICE, PLEADING, AND EVIDENCE.

The Introduction to Crompton's Practice gives a full account of the jurisdiction of the courts, and the steps by which it was arrived at. This book is sometimes called Sellon's Practice, having been arranged by Mr. Sellon. The fourth part of The Institutes of Lord Coke. Tidd's Practice. Stephen on Pleading. Saunders' Reports, with Notes by Williams. Broom's Parties to Actions. Greenleaf on Evidence. Selwyn's Nisi Prius. Leigh's Nisi Prius. Mitford's Pleading in Equity. Story's Equity Pleading. Barton's Historical Treatise of a Suit in Equity. Newland's Chancery Practice. Gresley on Evidence in Equity.

III. CRIMES AND FORFEITURES.

Hale's History of the Pleas of the Crown. Foster's Crown Law. Yorke's Considerations on the Law of Forfeiture for High Treason. The third part of The Institutes of Lord Coke. Russell on Crimes and Misdemeanors. Chitty on Criminal Law.

IV. NATURAL AND INTERNATIONAL LAW.

Burlamaqui's Natural and Political Law. Grotius de Jure Belli et Pacis. Rutherford's Institutes. Vattel's Law of Nations. Bynkershoek Questiones Publici Juris. Wicquefort's Ambassador. Bynkershoek de Foro Legatorum. McIntosh's Discourse on the Study of the Law of Nature and Nations. Wheaton's History of International Law. Wheaton's International Law. Robinson's Admiralty Reports. Cases in the Supreme Court of the United States.

V. CONSTITUTIONAL LAW.

The second part of Lord Coke's Institutes. Hallam's Constitutional History of England. Wynne's Eunomus. De Lolme on the English Constitution, with Stephens' Introduction and Notes. The Federalist. Rawle on the Constitution. Story on the Constitution. All the cases decided in the Supreme Court of the United States, on constitutional questions, to be read methodically, as far as possible.

VI. CIVIL LAW.

I consider some study of this head as a necessary introduction to a thorough course on the subjects of Persons and Personal Property, and the topic, which is so important in the United States, of the Conflict of Laws.

Butler's Horae Juridicae. Gibbon's History of the Decline and Fall, chap. 44. Justinian's Institutes. Savigny's Traite de Droit Romain. Savigny's Histoire du Droit Romain au Moyen Age. Taylor's Elements of the Civil Law. Mackeldy's Compendium. Colquhoun's Summary of the Roman Civil Law. Domat's Civil Law.

VII. PERSONS AND PERSONAL PROPERTY.

Reeves on the Domestic Relations. Bingham's Law of Infancy and Coverture. Roper on Husband and Wife. Angel and Ames on Corporations. Les [OE]uvres de Pothier. Smith on Contracts. Story on Bailments. Jones on Bailments. Story on Partnership. Byles on Bills. Story on Promissory Notes. Abbott on Shipping. Duer on Insurance. Emerigon Traite des Assurances. Boulay-Paty Cour de Droit Commercial. Story on the Conflict of Laws.

VIII. EXECUTORS AND ADMINISTRATORS.

Roper on Legacies. Toller on Executors. Williams on Executors. The Law's Disposal, by Lovelass.

I believe that the course that I have thus sketched, if steadily and laboriously pursued, will make a very thorough lawyer. There is certainly nothing in the plan beyond the reach of any young man, with ordinary industry and application, in a period of from five to seven years, with a considerable allowance for the interruptions of business and relaxation. One thing is certain,—there is no royal road to Law, any more than there is to Geometry. The fruits of study cannot be gathered without its toil. It seems the order of Providence that there should be nothing really valuable in the world not gained by labor, pain, care, or anxiety. In the law, a young man must be the architect of his own character, as well as of his own fortune. "The profession of the law," says Mr. Ritso, "is that, of all others, which imposes the most extensive obligations upon those who have had the confidence to make choice of it; 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 parties. The laurels that grow within these precincts are to be gathered with no vulgar hands; they resist the unhallowed grasp, like the golden branch with which the hero of the AEneid threw open the adamantine gates that led to Elysium."



No. III.

THE ENGLISH BAR.

There are three orders of men at the English Bar: 1. Attorneys, or Solicitors in Chancery. 2. Barristers; and 3. Serjeants.

1. Attorneys and Solicitors.—Acts of Parliament have been made for the regulation of this class. The Stat. 6 & 7 Vict. c. 73, consolidating and amending several of the laws relating to attorneys and solicitors, prescribes the conditions of admission as an attorney, the time and mode of their service under articles; and the oaths to be administered to them; and authorizes the Judges of the courts of the common law, 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 solicitors; and the certificate, either of the common law or equity examiners, will be sufficient to entitle a person so examined to admission in all the courts, examination by both not being necessary. 3 Stewart's Blackst. 29.

2. Barristers.—The proper legal denomination of this class is apprentices, being the first degree in the law conferred by the inns of court. Spelman defines apprentice, tyro, discipulus, novitius in aliqua facultate. This was probably the meaning of the term primarily; but as early as the reign of Edward I, it was employed to denote counsel below the state and degree of serjeant at law; one degree corresponding to that of bachelor, and the other to that of doctor, in the universities (Pearce's History of the Inns of Court, 28). Lord Coke informs us, however, that this degree was anciently preferred to that of serjeant (2 Inst. 214). They were termed apprenticii ad legem, or ad barras; and hence arose the cognomen of barristers. A barrister must have kept twelve terms, i. e., been three years a member of an inn of court, before he can be called to the Bar. After a member of an inn of court has kept twelve terms, he may, without being called, obtain permission to practice under the Bar. This class of practitioners are called special pleaders or equity draftsmen (according as they prepare pleadings in the common law or equity courts), or conveyancers, who prepare deeds. 3 Stewart's Blackst. 26, note. Those who are regularly called, however, may take upon them the causes of all suitors. Such of the barristers as have a patent of precedence, as king's counsel, sit within the Bar, with the serjeants; all others are called utter or outer barristers.

3. Serjeants at law.Servientes ad legem, or serjeant-countors. The coif or covering to the head worn by this order has also given a denomination to them. There exists some differences of opinion among judicial antiquarians as to the origin of the coif. It is supposed by some to have been invented about the time of Henry III, for the purpose of concealing the clerical tonsure, and thus disguising those renegade clerks, who were desirous of eluding the canon, restraining the clergy from practising as counsel in the secular courts. Hortensius, 349. By others it is referred to a much earlier period, when the practice in the higher courts was monopolized by the clergy, and those who were not in orders invented the coif to conceal the want of clerical tonsure. 1 Campbell's Lives of the Chief Justices, 85, note. There are, indeed, several circumstances to remind us of the ecclesiastical origin of our profession in England. The terms—on the festival of St. Hilary (Bishop of Poictiers, in France, who flourished in the fourth century); Easter; the Holy Trinity; and of the blessed Michael, the Archangel;—the habits of the judges, their appearance in court in scarlet, purple, or black, at particular seasons—the use of the word brother to denote serjeant, and laity to distinguish the people at large from the profession—the coif of the serjeants—the bands worn by judges, serjeants, and counsel, and the gown and hood of graduates of the inns of court,—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 III, compelling the clergy to abandon the practice of the law in the secular courts (Pearce's History, 22). Nulles clericus nisi causidicus, was the character given of the clergy, soon after the Conquest, by William of Malmsbury. The judges, therefore, were usually created out of the sacred order, as was likewise the case among the Normans; and all the inferior offices were supplied by the lower clergy, which has occasioned their successors to be styled clerks to this day (1 Bl. Com. 17). The livings in the gift of the Chancellor were originally intended as a provision for them, and an order was made in Parliament, 4 Edw. III, that "the Chancellor should give the livings in his gift, rated at twenty marks and under, to the King's clerks in Chancery, the Exchequer, and the two Benches, according to usage, and to none others." 1 Campbell's Lives of the Chancellors, 170, note.

In the time of Fortescue, sixteen years' continuance in the study of the law was the period of time considered a necessary qualification in candidates for the coif. There seems, however, never to have been a regulation to that effect; and it is certain that persons have often been advanced to this degree before that time. By the common law no one can be appointed a judge of the superior courts, who has not attained the degree of the coif; which degree can only be conferred on a barrister of one of the four inns of court. As soon as any member of an inn of court is raised by royal writ to the state, degree, and dignity of a serjeant-at-law, he ceases to be a member of the society. He removes to a new hall, and appears for the future in the inn of court as a guest (Pearce, 52).

The most valuable privilege formerly enjoyed by the serjeants (who, besides the judges, were limited to fifteen in number), was the monopoly of the practice in the Court of Common Pleas. A bill was introduced into Parliament in the year 1755; for the purpose of destroying this monopoly; but it did not pass. In 1834, a warrant under the sign manual of the Crown was directed to the Judges of the Common Pleas, commanding them to open that court to the Bar at large, on the ground that it would tend to the general dispatch of business. This order was received, and the court acted accordingly. But in 1839 the matter was brought before the court by the serjeants, when it was decided that the order was illegal; Tindal, C. J., declaring that, "from time immemorial, the serjeants have enjoyed the exclusive privilege of practising, pleading; and audience in the Court of Common Pleas. Immemorial enjoyment is the most solid of all titles; and we think the warrant of the Crown can no more deprive the serjeant, who holds an immemorial office, of the benefits and privileges which belong to it, than it could alter the administration of the law within the court itself." (10 Bingh. 571; 6 Bingh. N. C. 187, 232, 235.) However, the Statute 9 & 10 Vict. c. 54, has since extended to all barristers the privileges of serjeants in the Court of Common Pleas.

FOOTNOTES:

[1] This oath seems first to have been prescribed by the Act of Assembly, passed August 22d, 1752: "An act for regulating and establishing fees." (1 Smith's Laws, 218.) It has been copied into the revised Act of 14th April, 1834, s. 69 (Pamphlet Laws, 354), with the addition of the clause to "support the Constitution of the United States, and the Constitution of this Commonwealth." In England, by the Stat. 4 Henry IV, c. 18 (A. D. 1402), it was provided, "that all attorneys shall be examined by the Justices, and by their discretion, their names put in the roll, and they that be good and virtuous, and of good fame, shall be received, and sworn well and truly to serve in their offices, and especially that they make no suit in a foreign country." The present oath or affirmation is, that he "will truly and honestly demean himself in the practice of an attorney, according to the best of his knowledge and ability." Stat. 2 Geo. II, c. 23 (A. D. 1729); Stat. 6 & 7 Vict. c. 73. The qualification of a sergeant-at-law, is given at large in 2 Inst. 213; and in the valuable old book, "The Mirror of Justices," chap. 2, sec. 5, it is said that "every countor is chargeable by the oath, that he shall do no wrong nor falsity, contrary to his knowledge, but shall plead for his client the best he can, according to his understanding."

[2] Hurst's case, 1 Levins, 72; 1 Sid. 94, 151; Raym. 56, 94; 1 Keb. 349, 354, 387.

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

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

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

[6] Ex parte Carter, 1 Philada. Rep. 507. Blaike's Lessee v. Chambers, 1 Serg. & Rawle, 169.

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

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

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

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

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

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

[13] 2 Wynne's Eunomus, 557.

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

[15] Let the circumstances against a prisoner be ever so atrocious, it is still the duty of the advocate to see that his client is convicted according to those rules and forms which the wisdom of the legislature have established, as the best protection of the liberty and security of the subject. Professor Christian's note to 4 Blackst. Com. 356. From the moment that any advocate can be permitted to say that he will or will not stand between the crown and the subject arraigned in the court where he daily sits to practise, from that moment the liberties of England are at an end. If the advocate refuses to defend from what he may think of the charge or of the defence, he assumes the character of the judge, nay, he assumes it before the hour of judgment; and in proportion to his rank and reputation, puts the heavy influence of perhaps a mistaken opinion into the scale against the accused, in whose favor the benevolent principle of English law makes all presumptions, and which commands the very judge to be his counsel. Lord Erskine, 6 Campbell's Lives of the Chancellors, 361.

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

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

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

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

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

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

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

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

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

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

[26] Preston on Estates, 2.

[27] Co. Litt. 71 a.

[28] Ibid. 6 a.

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

Et quae, Desperat tractata nitescere posse, relinquit.

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

[30] Maddock's Chancery. Preface.

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

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

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

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

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

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

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

Forsyth's Hortensius, 424.

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

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

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

[40] Hornblower, C. J., in Seeley et al. v. Crane, 3 Green, N. J. 35. "I shall be sorry to see the honorary character of the fees of barristers and physicians done away with. Though it seems to be a shadowy distinction, yet I believe it to be beneficial in effect. It contributes to preserve the idea of profession, of a class which belongs to the public, in the employment and remuneration of which no law interferes, but the citizen acts as he likes, 'foro conscientiae.'" Coleridge's Table Talk, vol. 2.

[41] Gray v. Brackenridge, 2 Penna. Rep. 181; Foster v. Jack, 4 Watts, 33. In New Jersey, an advocate's fees are not recoverable at law. Shaver v. Norris, Penning. 63; Seeley v. Crane, 3 Green, 35; Van Alter v. McKinney's Exrs. 1 Harrison, 236. That the general current of decisions is in the opposite direction, will be seen by consulting Stevens v. Adams, 23 Wendell, 57; S. C. 26 Wendell, 451; Newman v. Washington, Martin & Yerger, 79; Stevens v. Monges, 1 Harrington, 127; Bayard v. McLane, 3 Harrington, 217; Duncan v. Beisthaupt, 1 McCord, 149; Downing v. Major, 2 Dana, 228; Christy v. Douglas, Wright's Ch. Rep. 485; Webb v. Hepp, 14 Missouri, 354; Vilas v. Downer, 21 Vermont, 419; Lecatt v. Sallee, 3 Porter, 115; Easton v. Smith, 1 E. D. Smith, 318.

[42] Chancellor Walworth, in Adams v. Stevens, 26 Wendell, 451; Foster v. Jack, 4 Watts, 337.

[43] Senator Verplanck, in Adams v. Stevens, 26 Wendell, 451.

[44] Vilas v. Downer, 21 Vermont, 419. Responsibility in a confidential employment is a legitimate subject of compensation, and in proportion to the magnitude of the interests committed to the agent. Kentucky Bank v. Combs, 7 Barr, 543.

[45] That evidence of usage is admissible to show what is the rule of compensation for similar services to those sued for, see Vilas v. Downer, 21 Vermont, 424; Badfish v. Fox, 23 Maine, 94.

[46] Concerning the pleader's salary, says the Mirror, chap. 2, sec. 5, "four things are to be regarded: 1. The greatness of the cause. 2. The pains of the serjeant. 3. His worth, as his learning, eloquence, and gift. 4. The usage of the court."

[47] Les lois et les docteurs, les anciennes ordonnances et plusieurs anciens arrets donnent aux avocats une action pour le paiement de leurs honoraires: mais, suivant la derniere jurisprudence du Parlement de Paris et la discipline actuelle du barreau, ou ne souffre point qu'un avocat intente une telle action. 1 Dupin, Profession d'Avocat, 110. Il est possible, que l'usage ne soit qu'un prejuge; mais ce prejuge a eu une salutaire influence sur la splendeur du barreau Francais. On ne pretend pas, en France, qu'un avocat n'a pas droit a un honoraire pour prix de ses travaux. Jamais on n'a refuse d'en allouer a ceux qui en ont reclame. Dans plusieurs barreaux, ces reclamations sont meme tolerees. Mais le barreau de Paris s'est montre plus severe; et non seulement autrefois, mais encore aujourd'hui, tout avocat a la cour qui actionnerait un client en paiement d'honoraires serait raye du tableau. Du reste, s'il est defendu d'exiger, il est permis de recevoir tout ce que le client veut bien assigner pour prix aux services de son avocat, en raison de ses peines et de l'importance des travaux. Ibid. 698.

Les honoraires dus par les parties aux avocats charges du soin de leur defense, ne doivent pas etre restraints a la taxe etablie par le tarif. Cette taxe a pour objet seulement de fixer la somme due par la partie qui succombe, et non d'apprecier les soins de l'avocat, appreciation qui doit etre faite selon l'importance et la difficulte du travail. Ibid. 699.

[48] Arden v. Patterson, 5 Johns. Ch. Rep. 48.

[49] Foster v. Jack, 4 Watts, 338, 339.

[50] Clippinger v. Hepbaugh, 5 Watts. & Serg. 315; Marshall v. The Baltimore and Ohio Railroad Co., 16 Howard (S. C.) Rep. 336. That champerty is an offence at common law, and that contracts of that character, between client and counsel, are void on that ground, and as against public policy, will be found to have been maintained in Rust v. Larue, 4 Litt. 411; Caldwell's Administrators v. Shepherd's Heirs, 6 Monroe, 391; Thurston v. Percival, 1 Pick. 415; Arden v. Patterson, 5 Johns. Ch. Rep. 48; Bleakley's case, 5 Paige, 311; Wallis v. Loubert, 2 Denio, 607; Backus v. Byron, 4 Michigan, 535; Elliott v. McClelland, 17 Alabama, 206. The cases on the other side, are, Thallhimer v. Brinckerhoff, 3 Cowen, 643; Ramsay's Devisees v. Trent, 10 B. Monroe, 336; Bayard v. McLane, 3 Harrington, 216; Lytle v. State, 17 Arkansas, 608; Newkirk v. Cone, 18 Illinois, 449; Major v. Gibson, 1 Patton Jr. & Heath (Va.), 48; Wright v. Meek, 3 Iowa, 472. In New York, by the Revised Statutes, it was made an offence, punishable by fine or imprisonment, and removal from the Bar, for any attorney, counsellor, or solicitor, directly or indirectly to buy, or be in any manner interested in buying, or to advance or procure money to be advanced upon anything in action, with the intent, or for the purpose of bringing any suit thereon. 2 Revised Stat. 386. The Code of Procedure appears to have changed the law in this respect, and to enable parties to make such bargains as they please with their attorneys. Code of Procedure, s. 258; Satterlee v. Frazer, 2 Sandf. S. C. Rep. 142; Benedict v. Stuart, 23 Barb. 420; Ogden v. Des Arts, 4 Duer (N. Y.), 275; Sedgwick v. Stanton, 4 Kernan, 289. In Kentucky there appears to be a statute, which provides that any one not a party, receiving as compensation for services in prosecuting or defending a suit the whole or part of the subject-matter in suit, is guilty of champerty, and it has been held that this statute extends to attorneys. Davis v. Sharron, 15 B. Monroe, 64. In England, contingent fees are held to be clearly within the statutes of champerty and maintenance. Penrice v. Parker, Rep. Temp. Finch, 75.

[51] 2 Wallace, Jr. Rep. 452.

[52] 10 Casey, 299.

[53] Paciscendi quidem ille piraticus mos; et imponentium periculis pretia, procul abominanda negotiatio, etiam a mediocriter improbis aberit: cum praesertim bonos homines bonasque causas tuenti non sit metuendus ingratus, qui si futurus, malo tamen ille peccet. Quinct. Lib. xii, c. 7.

[54] Evans v. Ellis, 5 Denio, 640; Newman v. Payne, 2 Ves. 199; Walmsley v. Booth, 3 Atk. 25; Montesquieu v. Sandys, 18 Ves. 313. The doctrine has been fully followed in this country; Stockton v. Ford, 11 How. U. S. 247; Starr v. Vanderheyden, 9 Johns. 253; Howell v. Ransom, 11 Paige, 538; De Rose v. Fay, 4 Edw. Ch. 40; Lewis v. J. A., Ibid. 599; Berrien v. McLane, 1 Hoffman, Ch. Rep. 424; Miles v. Ervin, 1 McCord, Ch. Rep. 524; Rose v. Mynell, 7 Yerger, 30; Bibb v. Smith, 1 Dana, 482; Smith v. Thompson's Heirs, 7 B. Monroe, 308; Jennings v. McConnel, 17 Illinois, 148.

An agreement made by a client with his counsel, after the latter had been employed in a particular business, by which the original contract is varied, and greater compensation is secured to the counsel than may have been agreed upon when first retained, is invalid and cannot be enforced. Lecatt v. Sallee, 3 Porter, 115.

[55] In Foss's Grandeur of the Law, eighty-two existing peerages are stated to have sprung from the law. That was in 1843.

[56] Non merum, si ob hanc facultatem homines saepe etiam non nobiles consulatum consecuti sunt: praesertim cum haec eadem res plurimas gratias, firmissimas amicitias, maxima studia pariat. Cic. pro Muraena.

[57] Vivit, vivetque per omnium saeculorum memoriam. Dumque hoc vel forte vel providentia vel utcunque constitutum rerum naturae corpus, quod ille paene solus Romanorum animo vidit, ingenio complexus est, eloquentia illuminavit, manebit incolume: comitem aevi sui laudem Ciceronis trahet; omnisque posteritas illius in te scripta mirabitur, tuum in eum factum execrabitur: citiusque in mundo genus hominum, quam cadet. Vell. Patere. L. 2.

[58] Sir William Jones adds to his other claims upon our admiration that of a decided partiality to the character and fortunes of our American Republics. "The sum of my opinion is," says he, "that while all the American people understand the modern art of war, and learn jurisprudence by serving in rotation upon grand and petit juries, their liberty is secure, and they will certainly flourish most when their public affairs are best administered by their Senate and Councils. I cannot think a monarchy or an oligarchy stronger in substance, whatever they may be in appearance, than a popular government.... I shall not die in peace without visiting your United States for a few months before the close of the eighteenth century. May I find wisdom and goodness in your Senate, arms and judicature, which are power, in your commons, and the blessings of wealth and peace equally distributed among all." 2 Wynne's Eunomus, 359, note.

[59] Note at p. 47.

[60] Note at p. 75.

THE END

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