CJortipU IGau! ^rlynol Hibtarg Digitized by Microsoft® Cornell University Library KD 460. W29 1870 The moral, social, and professional duti 3 1924 021 679 406 Digitized by Microsoft® This book was digitized by Microsoft Corporation in cooperation with Corneii University Libraries, 2007. You may use and print this copy in iimited quantity for your personai purposes, but may not distribute or provide access to it (or modified or partiai versions of it) for revenue-generating or other commerciai purposes. Digitized by Microsoft® Cornell University Library The original of tliis book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archi\^.£r^4d^aNs^u31 924021 679406 Digitized by Microsoft® (forn^U Earn f>rl|0ol Eihtary Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® THE MORAL, SOCIAL, AND PROFESSIONAL DUTIES ATTORNEYS AND SOLICITORS. BY SAMUEL WARREN, ESQ., F. R. S., OF THE INNER TEMPLE, BARRISTER- AT- LAW. WITH NOTES, ADDITIONAL CASES AND AUTHORITIES, BY A COUNSELOR-AT-LAW. "I do swear that I will truly and honestly demean myself in the practice of an Attorney and Solicitor, according to the hest of my knowledge and ability. So help me God." — Oath of Attorneys and Solicitors. ALBANY, N. Y. JOHN D. PARSONS, Jr., PUBLISHER. 1870. Digitized by Microsoft® Entered, according to act of Vongress, in the year eighteen hundred and seventy, by JOHN D. PARSONS, Jr., In the Office of the Librarian of Congress at Washington. WEED, PARSONS AND COMPANY, PRINTERS AND STEREOTYPERS, ALBANY, NEW YORK. Digitized by Microsoft® PRESIDENT, VICE-PRESIDENT AND COUNCIL OF THE INCORPORATED LAW SOCIETY OF THE UNITED KINGDOM, THIS WORK IS INSCRIBED BY THE AUTHOR. Digitized by Microsoft® Digitized by Microsoft® PREFACE To Present Edition. The notes of the editor of the present edition are included in parentheses. They are simply designed to afford the student facilities to examine the subjects upon which they are collected more thoroughly than he would otherwise be able to do. Digitized by Microsoft® Digitized by Microsoft® PREFACE. The four " Lectures " mentioned in the foregoing " Reso- lutions," which the author feels great gratification in prefixing to this work, form the basis of it. Several times during the delivery of them, he expressed regret that his self-imposed limits had compelled him, not only to touch very slightly topics entitled to detailed consideration, but altogether to pass over many others. Even before receiving the " Resolutions " in question, he had contemplated publishing the Lectures, carefully revised, and incorporating into them all the materials which he had collected. He has carried his intentions into effect in this work, which, though not bulky, and published in an unpretending, but, it is to be hoped, convenient form, contains results of more than seventeen years' watchful observation. Many of the topics discussed in the ensuing pages required both firmness and delicacy in dealing with them, and have not hitherto, as far as the author knows, been noticed in print. However this work may be received by the great and powerful body, numbering between thirteen and fourteen thousand, to whom it is professedly addressed, it is offered in a spirit of candor and independence, but at the same time Digitized by Microsoft® lo Preface. with peculiar solicitude, and under an almost painful sense of responsibility. The author's anxieties, however, abate a little, when he reverts to the hearty reception of the " Lec- tures," by the large audiences before whom they were delivered, and reflects on the sanction afforded to those Lectures, by the Council of the Law Society — gentlemen of great practical experience, and professional eminence, who, after hearing the Lectures, felt themselves justified in request- ing the speedy publication of them, as calculated to be practically useful to the profession. He has done his utmost to render the ensuing pages worth reading. It has cost him, indeed, very severe exertion, and at a period of the year usually devoted to recreation, to comply with the many applications which have been made, for the publication of the Lectures during the Vacation. He ventures to express a hope that the work will prove not altogether uninteresting to even non-professional readers. One leading object of the author has been to show both attorneys and solicitors, and their clients, what are their reciprocal rights and duties : that both parties are bound to be honorable, liberal, reasonable, and conscientious in their professional intercourse and dealings with each other ; and, in a word, that the true interests of the profession and the public are identical. Inner Temple, it^th September, r848. Digitized by Microsoft® CONTENTS. Lecture I, 13 Lecture II, 46 Lecture III, 93 Lecture IV, 144 Digitized by Microsoft® Digitized by Microsoft® MORAL, SOCIAL, AND PROFESSIONAL DUTIES ATTORNEYS AND SOLICITORS. LECTURE I. Gentlemen : I shall not waste a moment of the precious hour * allotted to me, by expatiating on the mingled anxiety and satisfaction with which, on the invitation of the Council of this important institution, I appear here, as a disinterested well-wisher to the profession, to speak on a subject of great interest, but exceedingly difficult to be dealt with effectively. Thus, surely, I may characterize the moral, social,- and professional duties of so great and influential a class of persons as the attorneys and solicitors of the United Kingdom ; whose due discharge of their duties is a matter of vital concernment to the community. Having, how- ever, entered on this serious undertaking, I shall do my best to justify the confidence which has been re- posed in me, by laying before you, in a kindly and — — ^ • 1 * Lectures at the Law Institution are limited to an hour ; a period, however, which the author exceeded very considerably, but with an indulgence on the part of the audience, of which he retains a grateful remembrance. 2 Digitized by Microsoft® I A Duties of Attorneys candid spirit, convictions which are the result of no inconsiderable opportunities for professional observa- tion and reflection. I feel actuated, in doing so, by an earnest desire to discharge some little portion of that debt which, as our own illustrious Lord Bacon has told us, every man owes to his profession.* Well indeed would it be, gentlemen, if all of us, in what- ever department of it we are placed, constantly bore in mind this " debt." It would at least tend to coun- teract that spirit of selfishness, which the peculiarly absorbing nature of our pursuits is but too apt to en- gender ; reminding us, that the enriching and aggran- dizing ourselves and families is not, or ought not to be, our only object in entering and occupying the liberal and honorable profession of the Law, the true interests of which are identical with those of the entire community. He, therefore, who, by his exertions and by his example, contributes to advance the one, is at the same time serving the other ; and whoever honestly (nes to do so, however feebly, however ineffectually, will have the approval of good men, and conscience will ratify that approval. Gentlemen, I said just now, that the due discharge of your varied, arduous and responsible duties — your ■ intellectual and moral fitness for your profession, is a matter of vital concernment to society at large to every individual in the community, from peer to peas- ant; nay, from the august occupant of the throne, down to the very humblest subject in her dominions. Is it not so ? Why, even her majesty has her private * Law Tracts, 28. Digitized by Microsoft® AND Solicitors. 15 solicitor ; and the most destitute pauper may, thanks to the noble provisions of our laws, at any time com- mand your services and ours, to enforce his rights and redress his wrongs ; * services, I feel pride and pleasure in saying it, as cheerfully and energetically rendered, without fee or reward, as though they had been be- stowed upon the highest noble in the land, and for the most splendid remuneration which can stimulate exertion. * In the year 1494 was passed Stat. II Hen. VH, cap. 12 (entitled "A mean to help and speed poor persons in their suits "), conferring the right alluded to in the text. The preamble of the act runs thus : "Where [i. c. Whereas] the king our sovereign lord, of his most gra- cious disposition, willeth and intendeth indifferent justice to be had and ministered, according to his common laws, to all his true subjects, as well to the poor as rich; which poor subjects be not of ability, ne [nor] power to sue, according to the laws of this land, for the redress of in- juries and wrongs to them daily done, as well concerning their persons and their inheritance, as other causes." " For remedy whereof, in the behalf of the poor persons of this land, not able to sue for their remedy after the course of the common law — be it ordained and enacted, etc., that such poor persons shall have writs, etc., etc., therefore nothing paying," and "the justices shall assign to the same poor person or persons, counsel learned, by their discretions, which shall give their counsel, nothing taking for the same ; and the justices shall likewise appoint attorney and attorneys for the same poor person or persons, and all other officers requisite and necessary to be had for the speed of the said suits to be had and made, which shall do their duties without any reward for their counsels, help and business in the same," etc., etc. It would appear, however, that this statute was really but confirmatory of the beneficent common law, which had long before conferred the same privilege on the poor. See per Tindal, C. J., and Maule, J., in the recent case of Brunt v. Wardle, 3 Manning and Granger, p. 534. [Ostrander v. Harper, 14 Howard's Prac. Rep. 16 ; McDonald v. Bank, 2 id. 35 ; Florence v. Bulkley, 12 N. Y. Leg. Obs. 28; 2 N. Y. Revised Statutes, 444; 2 Edmonds' Statutes, 463,464, and cases there cited. ] Digitized by Microsoft® 1 5 Duties of Attorneys You, gentlemen, are armed with powers really for- midable, for good, and for evil. You may serve and protect, you may harass and oppress all of us, in our turn ; for which of us is there, how conscientious and circumspect soever, that may not, at some time or other, have to ask your services in the conduct of our affairs, and to assist us through unexpected litigation ? Lord chancellors and judges, even, cannot discharge their exalted functions, without occasionally finding the law which they administer, turned, whether right- fully or wrongfully, against themselves ! * Bishops may have to run the gauntlet of a law-suit, before as- suming their miters ! + And — to pass for a moment from grave to gay — sweet Jenny Lind, warbling, lark- like, high in the regions of song, is suddenly stricken by a certain missile of ours, to wit, a writ, and drops * During the last few years, actions and legal proceedings have been prosecuted against lord chancellors and judges, but in every instance so unsuccessfully as to show the frivolous and vexatious spirit in which they had been undertaken. + This alludes, first, to the legal proceedings instituted a few months previous to the delivery of these lectures, against Dr. Renn Hampden, in Hilary Term, 1848 (upon his elevation to the see of Hereford), on the alleged ground of heterodoxy, and which occasioned the Court of Queen's Bench to be equally divided in opinion ; and secondly, to the criminal information filed by Dr. James Prince Lee, on his being ap- pointed to the newly-created see of Manchester, against a person named Muggeridge, who had challenged his conduct on the alleged ground of inebriety on a particular occasion of performing clerical duties ; but the rule for a criminal information was made absolute in Michaelmas Term, 1847, Dr. Lee most solemnly denying the charge, and the defendant filing no affidavits to support it ; and he was found guilty on the trial of the information, before the Chief Justice of the Common Pleas at the ensuing Spring Assizes for Warwick. Digitized by Microsoft® AND Solicitors. 17 terrified through the air thrilling with her melody, into the arms of — her attorney ! * In the gravest exigen- cies of the state — equally in matters of business and of amusement — on great and on small occasions, you find yourselves called into action, expected, and prom- ising, and that upon your oaths, to acquit yourselves discreetly, and with integrity. Gentlemen, I repeat, speaking as one of the public, that we could not do without you, even if we wished. Whatever be our talents or acquirements; whatever our tempers and dispositions — whether amiable and yielding, or exact- ing, irritable, and overbearing ; whether we be virtuous or profligate, we may have to take you into our confi- dence, and open to you the most secret recesses of our hearts. We tell you what we would disclose to no one else on earth. We pour into your ears the accents of anguish all but unutterable. To your eyes are exposed hearts bleeding and quivering in every fiber ; pierced by the serpent's tooth of ingratitude, broken by the loss of those whom we loved more than life itself — whether taken from our arms by death, or ravished from * Jenny Lind, a famous Swedish singer, having acquired almost un- precedented continental celebrity, was engaged to sing at Drury Lane Theater by Mr. Bunn, the lessee and manager, in the year 1846. She broke, however, her contract with that gentleman, and entered into an- other with the lessee of the Queen's Theater, Mr. Lumley. On this Mr. Bunn brought an action, and recoved a verdict of ;^2,500 damages against her, at the London sittings after Hilary Term, 1848, before Lord Chief Justice Denman and a special jury. The Court of Queen's Bench was afterward moved to grant a new trial, on the ground that the dam- ages were excessive; but they refused to do so, saying that the jury were obliged to speculate in such a case, and that the court saw no rea- son to quarrel with the result at which they had arrived. 3* Digitized by Microsoft® ig Duties of Attorneys us by fiendish lust, or the ruthless ruffian hand of vio- lence. When our domestic peace is slain ; when the most hallowed relations of life and society are dislo- cated by the evil passions of others — by cupidity, perfidy, fraud, hypocrisy, malice and revenge ; in short, whether our honor, our life, our liberty, our property, or those of our families, are endangered or outraged, to you perforce we must fly in our extremity : living or dying — yes, I say dying, for we descend into the grave, in reliance on the discretion and integrity with which you have undertaken to carry into effect our wishes on behalf of those loved ones whom we are leaving behind us ; whom we would fain shelter, as far as we may, from calamity and the world's reverses, by providing for them out of the produce of a life's labor, anxiety, and privation ; and we look to do all this through the instrumentality of your judicious and conscientious exertions.* When the shaft of calumny has wounded us, it is to you that we fly to vindicate our smarting honor. Into your ear are poured the affrighted accents of those to whom guilt is imputed ; crime, of fearful enormity, attaching infamy maddening to contemplate ; crime, too, which may be falsely imputed to him whom the mere imputation is blighting before your very eyes, and who, in his agony and horror, has sent for you — has summoned you, that he may listen, in the dread gloom of a prison cell, to your sympathizing words of coun- [*See Bates v. Hillman, 43 Barbour, 645, where a comma or the want of one after the word " thereon " in the clause in question would have changed its entire meaning. ] Digitized by Microsoft® AND Solicitors. io sel and guidance ; that he may whisper into your ear the indignant protestations of an innocence, which, with confiding eagerness, relies on you for its vindica- tion.* In all such agitating cases, I have been suppos- ing you our friends ; but remember that we also have you for our opponents, using, then, your greatest ener- gies as resolutely against us, as you would have used them for us, had you been called upon to do so. Oh, how much our peace and safety depend, in the latter case, on your being — gentlemen ! Are these sketches — these outlines — of the scenes for which you have to prepare, too vivid in their tints ? Is the tone overcharged ? Is there any exaggeration, tending to inflate you with a false sense of importance, or depress you by a disheartening fear that you are not, and cannot become, sufficient for these things ? Here are sitting before me many of the heads of your department of the profession, gentlemen of powerful talents and extensive experience; there are also present some of the most distinguished of my brethern; and I ask them — the heads of your branch, the heads of my branch of the profession — am I overstating the case ? I think they would tell me that I am not, and could, on the contrary, illustrate and enforce what I have been attempting to describe, by a thousand striking instances which have come, and are continually coming, under their notice. Well, then, if this be so, gentlemen, on what a profession [* See some excellent hints by David Paul Brown, 3 American Law Reg. N. S., 561.] Digitized by Microsoft® 20 Duties of Attorneys you have entered, challenging the constant exercise of all your energies ! Let us, then, come at once to close quarters, for our natural interests impel us to do so ; and I tell you, that in becoming attorneys and solicitors, you are about to enter, or have actually entered into a solemn CONTRACT with us, with society at large, that we may employ you not only advantageously but safely, with- out compromising our best and dearest interests, which, as I have said, we are compelled to intrust to you. And there is one very material circumstance to be here adverted to, which will have infinite weight with an honorable mind ; namely, that we are, to a great extent, compelled to take you, as it were, on trust. On innumerable occasions of great moment to us, we must take your word for your fitness ; having, in the emergencies bringing us together, no time or opportunity for previous inquiry into your competency. We must have you then and there. On your door glitter the indicia of your calling. There you have deliberately written the terms of your contract, " At- torney and Solicitor:" as such, you are hastily sent for, and must act. It is somewhat different, observe you, with us at the bar. In nine cases out of ten, you have sufficient opportunity for ascertaining beforehand the qualification of counsel to discharge the duties with which you intrust them : our clients have, there- fore, here manifestly a great advantage over their clients ; and does not that consideration sharpen your sense of the responsibility which you are undertaking ? The law of the land puts its own construction on this Digitized by Microsoft® AND Solicitors. 2i your contract, and a very serious one, as I shall show you hereafter. It declares that you have pledged yourself to exercise reasonable skill and diligence : to exhibit perfect integrity ; and a breach of this contract may occasion you most bitter mortification, exposure, censure by the judges in open court, before keen rivals, and the necessity of making ruinous reparation to your client ; while the ikct of your having had to do so, scares away your other clients, and those who would otherwise have become such. This, however, may happen, and yet the nature of the case may be such that your unfortunate client shall receive no effectual redress : perhaps none at all. He may be beyond the reach of all earthly redress : he may be moldering in his grave, into which he descended, not knowing, poor soul, that he was leaning on a broken reed, in relying on his professional adviser's com- petence to arrange his affairs ; that his affectionate and just purposes were destined to be all defeated ! The "dull cold ear of death" cannot hear of a will that is mere waste paper ; of property being frittered away in fruitless efforts to repair your cruel and fatal blundering ; of a widow and orphans reduced to desti- tution, while property, righteously destined for them, is being, through your instrumentality, enjoyed by a comparative stranger, or even by the bitterest enemy of your dead victim ! Language, gentlemen, is not strong enough adequately to stigmatize the misconduct of him who rashly rushes into a position where he may do such terrible and irreparable mischief, like " a mad- man scattering firebrands, arrows, and death." I Digitized by Microsoft® 22 Duties of Attorneys assure you that he is guilty of immorality in doing so, and telling a flagrant falsehood to society ! Start, gentlemen, I beseech you, with a deep con- viction, which should also be impressed upon those who send you into the profession, that if you would not occupy it discreditably and mischievously, you should not enter it hastily, and without adequate con- sideration of its real nature, and of your fitness for it. I invite you to make such an examination at this early stage of your career, that it may enable you to remedy any past inconsiderateness, or stimulate you into a more zealous and efficient prosecution of a highly honorable and distinguished walk in life : for that it really is such, I will pledge myself to demonstrate to any unthinking person, who may not yet have made the discovery. But in the mean time, let me ask you, the youngest present, have you ever really giveft these matters a moment's thought ? I mean effectual thought. Do any of you inwardly flinch from the question ? When thus challenged, are you owning to yourselves that you have neglected this duty, and hitherto acted with a kind of thoughtless indifference and levity, of which the consequences may be just beginning to be perceptible to yourselves, in a sickening suspicion of incapacity, whether from want of moral or intellectual qualification, or both? Such feelings may be painful, but most salutary, because they may give you the first impulse to rouse yourselves, and be up and doing. You see others around you succeeding, and likely to succeed, while your own prospects may be gloomy and disheartening. Digitized by Microsoft® AND Solicitors. 23 Do you childishly attribute the difference to ill luck ? Or, can you trace effects to their true causes: your own actual or impending failure, to your own negli- gence and thoughtlessness ? Others looking on, and knowing you, may be able to see what you do not ; and are in no way surprised at what they see. If you could but see yourselves " as others see you," if for only a moment, that startling glance might be your salvation ! Let us look, then, as at a map of a country through which you intend to travel, at the profession which you have entered, and in which the remainder of your life is to be spent; and remember — ponder the words, though their form and aspect be trite and simple — that you have BUT ONE Rfe. The tone of your pro- fessional character, intellectually and morally, will de- pend on the estimate which you form of the nature of the duties which you have undertaken, and of the spirit which ought to actuate you. You may creep into and all through your profession, like a mere beetle. You may plod your way into, and wearily all through it, as a poor beast of burden ; you may sink into a mere hewer of wood and drawer of water; you may be content to be, in the contemptuous language of Dean Swift,* " mere underworkmen, expert enough at mak- ing a single wheel in a clock, but utterly ignorant how to adjust the several parts or regulate the movements." The law may, from first to last, appear to you a huge shapeless mass of unintelligible and merely arbitrary * Sentiments of a Church of Englandman. Digitized by Microsoft® 24 Duties of Attorneys rules, instead of a noble and symmetrical system, based on reason, morality and religion, and elaborated by the choicest intellects which have ever dignified the earth by their presence. It is in your power to become a worthy, enlightened member of a great and powerful profession, starting with such a distinct and elevated conception of the scope and objects of the entire sys- tem as will throw light upon, and surround with in- terest, the minutest details into which it is ramified. By seeing that it affords constant opportunity for ex- hibiting the best qualities of our nature, both for action and suffering — true magnanimity — you will be likely to feel pride and pleasure in what you have undertaken. Beware, then, how you treat these matters lightly ; how you enter your profession with inadequate or unworthy notions of its importance and dignity. In so doing, believe me, you are wronging yourself, impairing your sense of self-respect, and lowering the tone of feeling which should ever impel you to action. You will be likely to adjust your conduct to a low standard — rec- ognizing and yielding to the impulse of petty and paltry motives — instead of invigorating your soul by constantly contemplating the lofty and everlasting principles of virtue and justice which are concerned in the structure and working of law, and which, if stead- fastly kept in view on even the most apparently trivial and discouraging occasions, will purify the atmosphere in which you breathe, invest your character with dig- nity, and enable you to magnify your office and make it honorable. Digitized by Microsoft® AND Solicitors. 25 What, then, let us ask, in a practical spirit, is signified by that law which you aspire to assist in administering? Law is a monosyllable pregnant with a significance which ought to be distinctly present to your mind, from the first moment at which you are able, and called upon, practically to comprehend it. The law is that power by which civil society is constituted, and sus- tained in existence ; overpowering the unruly elements of our fallen nature ; with heaven-born energy convert- ing the savage into the citizen ; making the wilderness to bloom and blossom as the rose, redolent of the balmy air of peace and order; and surrounding its confines with impregnable bulwarks against brute force and arbitrary will. I beg leave to read to you, gentle- men, in lieu of any thing that I could offer, a short passage from one of Sir James Mackintosh's admirable disquisitions on moral and political philosophy — one which, if listened to attentively, may appear to you singularly beautiful, and worthy of being engraved in the memory of every one engaged in the study and practice of jurisprudence. "There is not, in my opinion," he says, "in the whole compass of human affairs, so noble a spectacle as that which is displayed in the progress of jurispru- dence ; where we may contemplate the cautious and unwearied exertions of wise men through a long course of ages, withdrawing every case, as it arises, from the dangerous power of discretion, and subjecting it to inflexible rules; extending the dominion of justice and reason, and gradually contracting, within the narrow- Digitized by Microsoft® 26 Duties of Attorneys est possible limits, the domain of brutal force and arbitrary will."* How simple, impressive, and just, is this observa- tion ! It presents you, in a word or two, with the very essence of jurisprudence, both theoretically and prac- tically considered ; and is calculated to throw a flood of light into all the dark sinuosities and intricacies of the most artificial system of particular jurisprudence, professing to be regulated by wise and just principles. The love of society, gentlemen, is an original in- stinct or tendency of our nature ; and the highest stage of civil society is that which protects the weak from the strong, by so contriving its arrangements, that no individual shall be called on to surrender, or abstain from exercising, more of his absolute natural rights than is inconsistent with the welfare of the whole community. Here the philosophic eye at once detects the existence of two forces which ever have been, and ever must be, antagonists, in any conceivable scheme of society, or form of free government; I mean LIBERTY and AUTHORITY — ever sternly confronting one another. A free and good government is that in which the two are brought most nearly into harmonious action; where there is as much liberty, and as little restraint imposed on it by authority, as is compatible with the peace and safety of the whol^ and of each individual. When this practical .balance is obtained, it is designated by the phrase civil liberty: words often grievously misunderstood, and grossly misrepresented. The true nature of this same civil liberty is thus explained by * Discourse on the Law of Nature and of Nations. . Digitized by Microsoft® AND Solicitors. 27 the profound Bishop Butler, in a sermon preached before the House of Lords : — " Civil liberty, the liberty of a community, is a severe and a restrained thing; implies, in the notion of it, authority ; settled subordinations ; subjection ; and obedience ; and is altogether as much hurt by too little of this kind, as by too much of it. And the love of liberty, when it is indeed the love of liberty, which carries us to withstand tyranny, will as much carry us to reverence authority, and support it ; for this most obvious reason, that one is as necessary to the very being of liberty, as the other is destructive of it. And therefore, the love of liberty, which does not produce this effect; the love of liberty, which is not a real principle of dutiful behavior toward authority, is as hypocritical as the religion which is not productive of a good life. " Licentiousness is, in truth, such an excess of liberty, as is of the same nature with tyranny. For what is the difference between them, but that one is lawless power exercised under pretense of authority, or by persons invested with it ; the other lawless power ex- ercised under pretense of liberty, or without any pre- tense at all ? A people, then, must always be less free, in proportion as they are more licentious ; licentious- ness being not only diffqf ent from liberty, but directly contrary to it; a direct breach upon it."* * A sermon preached before the House of Lords, January 30th, 1 740-1 741. The whole of this admirable sermon — which is, compara- tively speaking, rarely read or referred to — is peculiarly worthy of being attentively perused and reflected upon at the present day. Digitized by Microsoft® 28 Duties of Attorneys Gentlemen, in these few sentences this great thinker has compressed a volume of sound political philosophy, never more fit to be reflected on, than at the present eventful period. These few words go, indeed, to the very root of the whole matter, and comprise the chief articles of a free Englishman's creed. They embody his notion of true liberty — of free government. His sober and manly character abhors the wild, fantastic dreams of those who, in the language of Mjlton, " Bawl for freedom in their senseless moods. And still revolt, when truth would set them free ; License they mean, when they cry — liberty 1 " Gentlemen, it is in this spirit of affectionate rever- ence for our free institutions, prompting us to accom- modate them, with anxious caution, to the exigencies of the times, that we ought ever to live; not idly dreaming that those institutions are perfect, but believ- ing them to approach already very near to the point of practical perfection ; conferring upon us a sense of security, which, in these tremendous times, is inesti- mably precious. Oh, what would not our harassed continental brethren give to enjoy it, to catch a glimpse of it, to escape for a moment from the blight- ing, bloody haze which surrounds them, amid which they are gasping in the dreadful spasms of revolution, and in which true liberty is being stifled — to come to this green isle of ours, and breathe, for a while, its air of blessed purity, freedom, and calm ! Here we understand the true nature of liberty, the real con- stituents and conditions of free government. We do not ignorantly worship. Our hearts are trained into a Digitized by Microsoft® AND Solicitors. 20 patriotism and loyalty which warm, which enlighten, which strengthen the character, and discipline the will. We feel that restraint is essential to the enjoyment of freedom. That which galls and inflames the fiery and untamed natures of others, sits lightly and gracefully on our necks, as the soft collar of social order. All this is due to the agency of law. The national con- victions on this subject are sincere and profound. There was recently in this metropolis a magnificent manifestation of them. The sound of it has gone forth into all the earth ; the recollection of it yet overshadows our minds. Englishmen acted, on that day, in a calm and solemn spirit, understanding well — and if WE lawyers did not, who should ? — what it was that we had to defend.* "We will not," said we, "have Revo- lution here ! Out upon violence ; away with it ; if our laws must be altered, the alterations shall not appear in our statute book written in the tremulous hand of fear, or in letters of blood ! " Treason and anarchy fled as we said this. And did we not say it ? Oh, yes, you and I bore part in that bloodless victory; this very room witnessed, and was dignified by wit- * The loth of April, 1848, is here alluded to. On that day the metropolis, threatened with a revolutionary movement by a great num- ber of people calling themselves Chartists, who openly avowed their determination te resort to violence in order to gain their objects — ^viz., the subversion of the present constitution, and the introduction of anarchy — made such an overwhelming demonstration of unity, resolu- tion, and strength, as, when backed by the judicious measures of the government, and the masterly military precautions of the Duke of Wel- lington, paralyzed the abettors of treason and violence, and occasioned a ridiculous issue of their enterprise against law and order. 3* Digitized by Microsofi® 30 Duties of ATTORNEys nessing, the exhibition of that glorious spirit, which is ready again and again to display itself, and in tenfold force: which can never die: and which declares, in the heart-stirring language of our own Shakspeare, " Naught shall make us rue. If England to itself do rest but true." t Such, gentlemen, being a faint, imperfect outline of the general scope and object of law, and of its blessed product, civil liberty, let us bear in mind these leading principles while we descend into details for a moment ; into those details, be it observed, with which all of us lawyers, in our respective departments, are, or ought to be conversant ; with which we are daily and hourly practically concerned, while working out the grand system securing such results. We must not lose sight of the whole, in its parts ; nor let the spirit evaporate in handling the letter. Mark the actual operation of law ! The instructed eye sees it in whatever comes in contact with the law: how, to recur to the language of the distinguished jurist whom I have quoted, the dangerous power of discretion is limited and restrained, by incessantly withdrawing from it cases, as they arise, in the ordinary affairs and intercourse of mankind, and subjecting them to inflexi- ble rules, prescribed by calm, enlightened, and impar- tial reason and justice: which, in doing so, are con- stantly reducing within the narrowest limits the domain of brutal force and arbitrary will. The law looks with equal eye on all who apply to it, rich or poor, high or T King' John, Act V, sc. 7. Digitized by Microsoft® AND Solicitors. 31 low, gentle or simple, dealing out its decrees indiffer- ently, without fear or favor. What is the practical result ? The never-ending recognition of its existence and action ; the safety of society, the discipline of the will, the self-control, the self-denial of its members, the contented enjoyment of their own, without injuring that which is another's. These are matters very easily enumerated; but what immense difficulty lies in the way of practically attaining and preserving these ele- ments of social happiness, of the community, and the individual ! And how are these results worked out ? By, it is true, a complicated and artificial system of jurisprudence. But what has made it so ? The free operation of the great principles which I have been pointing out. Each of us is, for instance, so jealous of his rights, that he will have them, when challenged, defined with the sharpest exactitude : we fight for even the minutest fraction of what we conceive to be our rights, whenever we find another challenging their existence, or infringing them. Thus it is that the multiplicity of our laws really springs from the great- ness of the liberty which we enjoy. In a despotism, if we were slaves, the law would be fearfully simple ; the will of the prince would be the rule of our con- duct, with a breath stripping us of property, and consigning us to dungeons, and taking our lives. But here, in a free, well-governed country, we must all of us learn to live, and let live ; to respect, while en- joying our own rights, those of others. Now, to an uninstructed or careless eye, to one fitted "T' inspect a mite, not comprehend the heaven," Digitized by Microsoft® 32 Duties of Attorneys our whole legal system appears a sort of chaos, a " mighty maze without a plan," a labyrinth to which we have no clue. Without the light of principle, los- ing sight of grand objects, our law may seem, indeed, an unsightly conglomeration of an infinitude of arbi- trary rules. But one who has grasped the subject can take in the scope of the whole ; and he sees, aye, in the minutest matters which can occupy a professional man's attention, the glorious and potent agency of the great principles of justice, the safeguards of liberty. He sees that our laws are, in fact, a vast system of check and countercheck, in every direction. The delicate mech- anism by which the social movements are regulated, is so exquisitely tempered and adjusted, with a view to the harmonious action of the whole, that one may say, "Untune one string — and hark I What discord follows I " We are not, perhaps, sensible of the existence of a particular rule, till zve have infringed it, intentionally or unintentionally, in the eager pursuit of our own interests. But then that rule makes itself felt, in its potency; and, however irritated and galled, we must submit, inveighing loudly, it may be, against those whose business it is to enforce the rule, and the paltry nature of that which has been transgressed ; unable, or indisposed, all the while, to trace it to the principle on which it is founded, and which may be one lying at the very foundation of the fabric of civil society. One out of a hundred illustrations occurs in the minute and multifarious regulations, which give incessant oc- cupation to the courts, respecting the personal service Digitized by Microsoft® AND Solicitors. 33 of Process, of Rules, Orders, and Notices of different kinds ; a particular dispute and discussion may have drifted far away from the great principle which regu- lates the whole ; namely, that no one shall be condemned unheard. Consider for a moment (I have time to sug- gest only) what is signified by that rule or principle, so tersely expressed, what is being "condemned un- heard:" and what is such a "hearing" as the nature of the case admits of, and the law is satisfied with — having regard to situations, times, circumstances — to fraudulent evasion ? How nearly you may perpetrate rank injustice, and afford a mischievous precedent, by a hasty decision in apparently a trivial case, an un- thinking acquiescence in that decision. What, again, are all the minute and apparently frivolous objections which, every now and then, one hears taken, and per- tinaciously argued, to the sufficiency of warrants of commitment and convictions ? A scientific lawyer sees here in lively operation the grand principles which protect the liberty of the subject — of the humblest as well as the greatest; which, in the spirit of Magna Charter and Habeas Corpus, require, even to a point of scrupulous and painful exactitude, the real cause of taking away a man's liberty, to be made to appear in such a way that, if insufficient, it will enable the per- son affected, be he who he may, to recover that liberty, and bring to account those who have wrongfully inter- fered with it, though but for one instant, and in doing so deter others from similar infractions. In short, lynx-eyed Liberty is with us, eternally spying out snares for her, detecting possible facilities for encroach- Digitized by Microsoft® 34 Duties of Attorneys ment, and withdrawing, with a salutary and sternly susceptible jealousy, every case as it arises, from the dangerous power of discretion. Misera est servitus ubi jus vagum ant incertum. It is by means of such considerations as these, by referring constantly to prin- ciple, and keeping the eye steadily fixed on the objects of civil society, that we appreciate the nature of that instrumentality by means of which it exists, that is, the law. Now this being law ; such a faint idea of its general working, observe its incessant concernment with all of us who live under its supremacy : how it comes home, whether we will or not, to our "businesses and bos- oms ; " authoritatively interposing between us and the accomplishment of, it may be, our most cherished wishes : peremptorily saying to us. This you shall not do ; That you shall ; Give up the pursuit of such an object; You must make amends; You must suffer for what you have already done ; Your rival, it may be your enemy, has the advantage of you, or you of him ; A move in this direction beggars you and your family : in that, it enriches you all. Alas ! by the way, interest and inclination may be on this side, on the other duty and honor : the dividing line is faint ; you may often pass and repass it with impunity, as far as human detec- tion goes ! But let us not be tempted to lose sight of our limits, or confound the provinces of ethics, and law, with the latter alone of which, we have to do. Interna non curat prcetor. Recurring, therefore, to law, and adverting to what has gone before, I say: here, in short, is the machinery ; these are its capabili- Digitized by Microsoft® AND Solicitors. 35 ties ; this is its mode of action. But who is to work that machinery ? You, gentlemen : and in the first instance. You are they who act eariiest in the administration of this noble and wondrous system. You aspire to enter the ranks of those who, in any given case, first set in motion the machinery : by and through you it is, that the energies of law are brought directly to bear upon us, upon society collectively and individually. Law, without lawyers to administer it, may be spoken of as the letter without the spirit ; a dead letter, as far as regards the bulk of mankind. It has three grand exponents : yon, the bar, the judges ; in all of whom the law may be said to live, and move, and have its being ; to be truly lex loquens. As far as you are concerned, remember that you are, I again repeat it, earliest in the field, to apply the law to us, and to our affairs. It is you who, so to speak, have to deal with the raw material of our sayings and doings, our negligences, errors, omissions, and commissions, our wants and wishes; to whisper in our ears what it is that we may or may not do, • however fervent and eager may be our wishes on the subject. Bear you always in mind, that the bulk of society take the complexion and character of the law from your exhibition of it. AccoB^ingly as you act and demean yourselves, on such occasions, you may make that law appear a blessing, or a curse ; render it detestable as the mere instrument of meanness, trick- ery, and oppression ; or lovely and dignified as the guardian of peace and order ; the very visible imper- sonation of justice, the protector of the weak and op- Digitized by Microsoft® 36 Duties of Attorneys pressed, vindicating the rights of the most abject, and redressing wrongs, though inflicted by the haughtiest and highest of mankind. You exhibit the reality and action of that law which all of us are taught to rely upon, confidently, in all our exigencies, whensoever we appeal to it, and which it is your high office, your vo- cation, your privilege, to show to be indeed "Not harsh and crabhed, as dull fools suppose, But musical as is Apollo's lute 1 " — Stay, however : are you equal to all this ? Are you an instrument capable of discoursing this eloquent music ? Nay, but let us think and speak gravely and frankly on this point. Let us take for granted, for the present, that you have not been, and will never be, guilty of the cruel, the scandalous misconduct of essay- ing to practice the law, without the requisite amount of professional knowledge ; and let us give you credit also, for the present, for sufficient intellectual qualifi- cation. Look at the nature of the MORAL DUTIES which will forthwith devolve upon you. And, first of all— - Do not start in your profession, gentlemen, pre- • pared to act on the assumption that one-half the world is trying to outwit the other half Such a notion is calculated to divert you, at once, from the path of strict rectitude and high-mindedness ; to place you in a false position, from which you may take most erroneous and perverted views of human conduct and affairs. 'Tis, indeed, a vile and selfish maxim, that you are to regard every man as a rogue, till you find him honest, and that, therefore, you are to regard him Digitized by Microsoft® AND Solicitors. 37 as bent on fraud and circumvention. Human nature, truly, is a fallen nature, and bad enough, but surely not quite so bad as this ; and whoever acts on this assumption is wronging and outraging that nature. Charity, my friends, hopeth all things; believeth all things. I say, reverse the rule: treat no man as a knave, till he is plainly beginning to show himself such : till then, give him credit for that truth, integrity, and honor, by which you would wish yourself to be actuated, for which you yourself claim to have credit. These are reflections which I cannot help thinking it is of real importance for you to bear in mind, in dis- charging the duties of your profession. They will give you a sense of independence and calm disinter- estedness; will secure your judgment from being warped in the conduct of affairs : habituating you to suspend that judgment, and not act without evidence, simply because you are importuned to do so by an interested, eager, and prejudiced client, who would have you believe that his opponent is every thing that is bad: giving him credit for acting from only the vilest motives ; putting on whatever he says and does the worst construction; and committing you, at the outset, by your distrustful demeanor and conduct, to a hostile and offensive line of action, too often blighting at once all prospect of an honorable, amicable, and prompt adjustment of differences and difficulties. Thoughts such as these may contribute to engender in you a temperate, firm, and cautious, but candid spirit, which will admirably qualify you for the troubled scenes in which you will too often have to move. 4 Digitized by Microsoft® 2g Duties of Attorneys But, gentlemen, let me not be misunderstood. You will frequently see poor human nature in some of its worst aspects : it cannot but be so ; and it will call forth the exercise of all the virtue, all the Christian feeling, that is in you. To you will come panting revenge ; merciless cupidity ; hard-hearted avarice ; hatred, malice, and all uncharitableness. Into your ear will be poured, from time to time, their fierce whisperings against their unfortunate fellow- creatures. To gain their ends, to wound the feelings of an oppo- nent, and secure often some petty advantage, persons employing you will not scruple to violate the sacred confidence of social intercourse ; and it will be sought to make you a sure, a willing, and sharp instrument, in their unholy hands, to gratify their evil passions ; to oppress and crush the unhappy and helpless ; to pur- sue, for instance, the hasty utterer of slander, the unthinking wrong-doer, with deadly pertinacity, and consequent cruelty to both parties; when a timely, kind, judicious interposition would have healed the skin-deep wound, and restored peace and amity. Will you do these things, my friends ? Will you consent thus to demean yourselves, and degrade your office ? Nay, but God forbid ! You shall, on the contrary, throughout life, remember from whose awful lips fell the words, " Blessed are the peace-makers ! " You shall say on such occasions, with noble firmness, " I will not do what you demand. I disdain to be the instrument of your vindictiveness, of your over-reaching avarice ; I will not be the conduit-pipe of your sweltering venom and malignity. I will not, at your bidding, plunge Digitized by Microsoft® AND Solicitors. 39 your debtor into prison, and his family into the poor- house. I will not hurry into the Gazette one strug- gling manfully but desperately with misfortune, and whom you would prostrate with short-sighted fury. I will not do all this, when I am satisfied that they are unfortunate only, and you cruel and exacting. If you want to crush and to destroy, go elsewhere ! I will not abuse the law ; I will not plunge its sharp weapons intc their hearts, nor prostitute law, in my person, by giving effect to your unjust and tyrannical wishes ! " You will, when brought into contact with clients heated and inflamed by animosity and excitement of any kind, take care not to catch fire from them, but let the first sight of their ardor put you upon your guard. While they shall see you exhibit no deficiency of interest in their cases, they shall presently discover that you will only not let your equanimity be disturbed, and your understanding confused and perplexed, but will retain them in full play, in order the more effectu- ally to serve clients blind to their own real interests, interests, which, however, you see distinctly : to save them, it may be, from plunging into litigation, which may have at once a ridiculous and a ruinous issue : liti- gation which would have benefited you only, and beggared all others concerned. So far from stimulat- ing, therefore, you will calm and repress their tumult- uous and agitated feelings : you will reason with them ; pointing out disastrous possibilities or probabilities, which may have the effect of preventing them taking the first false step. They may, perhaps, chafe and fret a little at first, but by-and-by how they will appre- Digitized by Microsoft® 40 Duties of Attorneys ciate your firm conscientiousness ! They will feel that you have, indeed, thrown oil on the waters, and that by you their own troubled passions have been calmed. Now, it may be, that in all the cases supposed, your client may have had the letter of the law with him ; the letter, but not the spirit ! No ; that was with you, prompting you to pursue the course you did: and why ? Because you had conceived aright of law ; its true principles and holy objects were present to you, while calmly listening to the language of infuriate passion and malignity. You knew why the weapons of the law were intrusted to your hands, and what was the right use to make of them. The letter of the law was with Shylock ; and society were all Shylocks ! " Then," in the language of the late Chief Justice Tin- dal, whose name I mention with affectionate reverence, for he was a great light of our profession, " every man's hand would be against his neighbor ; no fancied griev- ance would be allowed to sink into oblivion ; no paltry assault, no petty trespass, would be either forgiven or forgotten, and courts of justice would be occupied with the endless quarrels of the peevish and discontented."* * This passage occurs in a speech of Sir Nicholas Tindal (then solicitor general), in the House of Commons (see Hansard's Parliamentary De- bates, N. S., vol. xviii, p. 851; and Mirror of Parliament, vol. i, p. 436), and the following striking sentences immediately precede and fol- low it. He was speaking of the fallacy of expecting "cheap law" to secure the welfare of individuals or the public. "Indeed, law may be had too cheap — and then it becomes an un- mitigated evil." After supposing the revenue to become capable of affording justice gratuitously, he malces the observation quoted in the text, and thus concludes : Digitized by Microsoft® AND Solicitors. 41 The charm of society would, indeed, be gone; its blooming love would have perished, as under a blight. It is thus, by instituting and resisting our demands upon, and enforcing our rights against each other, in respect to all the relations and transactions of life, and affairs of business, that you are taken behind the scenes, and see all of us as we are : often in all our native de- formity of will and character. You thereby acquire influence over us ; one sometimes irresistible ; one to be exercised for good or evil, according to your own character and disposition. Take care not to abuse that influence ! It is on such occasions that you must play the man ; being never the slave, nor mere tool of your client, nor yet his tyrant. You know his secrets ; pre- serve them inviolate. You are acquainted with his embarrassments and anxieties : most tenderly respect them ; assist him effectually by your vigilant and firm discretion, and rigid conscientiousness in the conduct of his affairs. For, I repeat, that in almost all our affairs, and in entering into all the various relations of life, we must consult you ; place our property in your hands ; invest you with a permanent authority over our interests, over ourselves, our wives, children, and rela- tives, as trustees and executors ; fly to you in bitter and heart-breaking domestic dissensions; when suddenly "It therefore operates as a wholesome check on the spirit of litiga- tion, that there should be, in law, a dearness commensurate with the exigency which requires an appeal to it — a dearness which, while it does not check individuals in the pursuit of a real right, or impede them in gaining satisfaction for a real injury, is much more beneficial to society, than a cheapness which places law within the reach of every vindictive and malicious spirit ! " 4* Digitized by Microsoft® 42 Duties of Attorneys prostrated by some great mercantile misfortune ; when our transactions, our speculations, have become too com- plicated for our own management, and are getting, or have got into confusion ; to you, to you, on these oc- casions we come for your assistance, expecting to find you equal to the task, and having a right to expect it Has the vile pettifogger fixed his fangs in us ? Irri- tated, insulted, and harassed, we run to you for relief; but what if the pettifogger know the law, and you do not, gentlemen though you be, and the wretch have both of us on the hip ? And observe, that you will often be required to act on the spur of the moment ; in cases of great consequence and difficulty, requiring tact, decision of character, clear-headedness and knowl- edge ; when you cannot consult experienced friends, counsel or books ; yet you must do, or abstain from doing; and on occasions when your miscarriage may fatally compromise the character, the property, and the interests of your confiding client. Again, he, as it were, intrusts his very conscience to you ; for he will pledge his oath in affidavits, answers in chancery, and otherwise, where his own interests are to be served, through his own oath ! What a solemn responsibility will this entail on you, his confidential adviser ! AH these, however, are critical and delicate matters, which must be dealt with in the three ensuing lectures. Again, you occupy many important public situations, such as coroners, under-sheriffs, clerks of the peace, vestry clerks, clerks to the magistrates, and so forth ; you are the confidential advisers to great public bodies, and institutions, mercantile and otherwise ; in all which Digitized by Microsoft® AND Solicitors. 42 capacities you transact an immense proportion of the most important business of the pubHc, and contribute to the practical working of the constitution under which you live. Now, does not the bare allusion to all these satisfy you of the arduous nature of the responsibilities which you are undertaking ; and the presumption, the folly, the cruelty, and wickedness of which you will be guilty, in venturing upon them without due reflection ? What irreparable and widespread injury and misery may you not occasion, by a single act of unconscien- tiousness, fraud, or violation of confidence; by one error of judgment ; by one single instance of profes- sional ignorance ! Surely, surely, these are grave matters, challenging serious attention ! Gentlemen, you have become, or are about to become, members of a body between thirteen and fourteen thousand strong, for such is the number of the attorneys and solicitors of the United Kingdom. What powers and opportunities for good or evil are theirs ! I do not stand here to flatter them ; they do not require it ; I disdain to make the attempt ; but I feel constrained by a sense of truth and justice, to say that, fully acknowledging a few sad occasional excep- tions, as a body, they are an honor to their country ; and considering their incessant and innumerable temp- tations and facilities for going wrong, with perfect im- punity, it is astonishing how seldom we hear of their doing so. How rarely do we find their conduct suc- cessfully challenged in our courts of justice, by action, summary application to the court, criminal proceedings Digitized by Microsoft® 44 Duties of Attorneys or otherwise ! * And it is because they are a virtuous body; actuated by a lively sense of rectitude and honor ; and, in point of ability, equal to the multifari- ous exigencies for which they profess to be equal. Their welfare is, therefore, a matter of national con- cernment ; every thing should be done to further their best interests ; not to discourage persons of talent, for- tune, and position in society, from entering that body; but, on the contrary, to make it worth a gentleman's while to become an attorney and solicitor. Take care, my friends — just standing on the threshold — that you never do any act to sully that fair scutcheon ! And how shall you avoid it ? Be wise, and be wise in time! Well may you modestly ask, who is sufficient for these things ? You cannot become so, except through help from on high ! I tell you that your character will be ut- terly rotten, all your resolutions and your efforts abor- tive, unless under the constant influence of piety and virtue, ruling the heart and directing the will, on all oc- casions whatsoever. Oh, let not an immortal spirit bow itself into the dust, forgetful of its high destiny, and be- coming of the earth, earthy. It can degrade itself, but cannot get rid of those awful responsibilities which it has incurred in this transitory scene of probation. Forget not God, but remember him constantly, and obey his • [See 3 Camp. Chief Justices, 83, for Lord Kenyon's treatment of attorneys ; also as to removal and proceedings against, In re Percy, 36 New York Rep., 651; in re Peterson, 3 Paige, 510; Grant!?. Chester, 17 Howard's Prac. Rep., 260; People v. Brotherson, 36 Barbour, 662; ex parte ^&hh, 3 N. Y. Leg. Obs;, 332; 3 Hill, 42; 2 Code Rep. 116.] Digitized by Microsoft® AND Solicitors. 45 precepts. Piety and virtue will give you true elevation of character ; can alone extinguish envy, hatred, malice, and uncharitableness; extract the sting from adversity; dignify even failure ; and add unspeakable sweetness to success. Oh, what peace flows into a well-regulated mind, from an unskaken conviction that all the sundry and manifold changes of the world are the direct ordering of Infinite Wisdom and Goodness ; but what awe over- shadows that mind, from the consciousness that every action, every word, every thought, is exposed to the Eye that sleepeth not — to Him who will hereafter recall every thing to our recollection — " Each fainter trace that memory holds So darkly of departed years, In one broad glance the soul beholds, And all that was — at once appears." Such may be THE GREAT BOOK which is to be here- after opened before us : Oh, thought unspeakably tre- mendous ! The lips which "now feebly address you, the eyes which see, the ears which hear me, must very soon be dust; but WE cannot die — and were they the last words that I had to utter, I would humbly say — let us, in the mean time, strengthen our infirm pur- poses, let us comfort our harassed hearts, by reflecting on the fatherly injunction which God himself, who is our Father, has given to us : Keep innocency, and take heed unto the thing that is right : for that shall bring a man peace at the last* * Psalm xxxvii, 38. Digitized by Microsoft® aQ Duties of Attorneys LECTURE II. Gentlemen : Why did I endeavor, when last we met, at so much length, and with such strenuous anxiety, to exhibit to you a vivid, but I trust not overcharged, representation of the arduous, responsible, and highly honorable na- ture of the duties which devolve on the attorney and solicitor ? I stated then, and wish it now to be borne in mind, that the object was twofold : First to prevent you from rashly entering a profession to which you might prove unequal ; for which you might be in fact altogether unfitted, even by nature, and in which you might do grievous mischief; and secondly, that having entered it — having committed yourself to it, with what prudence it may practically be too late to inquire — you might be induced to keep continually present to your mind, both as students and practitioners, the really exacting nature of that profession. I say stu- dents; for it is possible that the word "clerk" — "at- torney's clerk" — may convey, to a superficial and un- thinking youth, a sort of notion that he is not at once become a student ; and every whit as much so as if he were preparing to enter our walk of the profession ; but that he is just — and only — a CLERK: a copyist: a messenger : a drudge in some office, great or small, where he has no opportunity for studying — where no interest is felt in his professional advancement, and where no means exist for facilitating it. Digitized by Microsoft® AND Solicitors. 47 Nothing is easier than for you to slip into this dis- heartening, derogatory, and often fatal misconception. The first step taken by one acting under it is in a wrong direction ; and every succeeding one will carry him further from the goal which he ought to keep ever in view, namely, the becoming capable, within a very few years — five years — of undertaking the responsible management of the difficult affairs of other people — of becoming, in a word, their other-selves I All scinse of just self-reliance is thus nipped in the bud, and utterly perishes : and the absence of it is made manifest, exactly when its presence is required; a man's unfitness for business, just when he feels, and quakes in feeling, that he ought to be fittest. The occasion is come, and he is not equal to it : having spent five years, a mere drudge — dull it may be, or cheerful, according to his humor ; either idly, or with a mere mechanical industry: — ^having, as I said the other evening, formed an unworthy estimate of his profession and its requirements, and, consequently, adjusted his views and conduct to a low standard of action. Begin well, therefore, gentlemen: with atten- tion distinctly challenged, from the very first, to the true nature of your rights, and your duties ; your pros- pects, opportunies, and necessities. If you look into the best Enghsh Dictionary extant, that of Dr. Richardson, you will find the word " Clerk " defined as one who is employed in learning ; " in learned occupations ; or, in doing that, performing those offices, which require some learning or scholar- ship." It is true that the word has also been used to Digitized by Microsoft® 48 Duties of Attorneys designate persons filling situations not within the scope of this definition ; to those discharging duties of an inferior and mechanical denomination, as copying clerks, and clerks in mercantile and other offices and situations; and it may be applied, in this sense, even to clerks in attorneys' offices, who are intrusted with only mechan- ical duties, required to do implicitly the bidding of others, without being expected, or permitted, to exer- cise any discretion of their own. But I am speaking, on the present occasion, of such as are here, of right ; who are articled clerks ; and are therefore clerks in that liberal and honorable sense, conveyed by the definition above given ; who, in short, are students, or entitled to be so called ; but how far justly, is another matter, and depends upon themselves. The gentlemen whose offices they enter, to become their pupils, ex- pressly and solemnly bind themselves, in terms, each, " by the best ways and means in his power, and to the utmost of his skill and knowledge, to teach and instruct his clerk in the practice or profession of an attorney and solicitor ; " but of what avail is such an undertak- ing, if unhappily the pupil be unable, or disinclined, to learn ? Now, if a youth is to prepare for the prac- tice of an arduous profession, a practically learned pro- fession, really requiring the exercise of an instructed and disciplined mind, surely the first point to be con- sidered by the parents, guardians, relatives and friends of that youth, is his natural fitness for it, in point of mind, and character. And here it is abundantly obvious, that the persons appealed to, ought them- selves to have, or take care to obtain, some sound Digitized by Microsoft® AND Solicitors. 49 practical knowledge of the .nature of the • profession ; that they may consider deliberately iho,w far it is likely, to be suitable to the disposition, character, and quali- fication, both mentally and morally, of the proposed candidate for admission into' it. 'All' this seems obvidlis enough," "yet like many other obviouS; but- important ti-uths/ niankind,- in their wayward- ■thoughtlessness, too often overlook it: whence the dismal significance of, for instance, a tertaih- well-known- sayings- "m^Trying in haste, and repenting atieiSurer" becoming a part- ner in haste, and repenting at Idsure: 'entering the law in haste, and repenting at leisure. Repenting at' leisure ! Alas ! -vvh'at'is implied in it but passing years,Tnany, many bKghting years, it niay be, of sdtil-'de^ressing, h^art-breakirig' disappointment, mortiffcltibn, and despair : all of which may be charge- able on thie foolishly though'tlfess' sufferer hinisfelf alone': or his criminally foolifeh and thbiightless relatives' and aiivisers. Let rril^,- theii, say a 'Word or' -two on this critical preliminary. ' ' ' " ' ' • ■ • - 1 Speaking with due diffidence, yet after hiuch' reflec- tion, ''arid' Sonie' years' bb'sefvatioh arid' experience,' I think that, in judging of the fitness of a youth for be- ing articled to an attorney and solicitor, I should, cete- ris paribus, expect a calm and sober temperament, promoting to perseverance and industry, and not likely to be irritated or disheartened by having to encounter difficulties. I should anxiously look for aptness for study: sound sense: clear-headedness: an energetic will : conscientiousness, especially in respect of veracity, and money matters : and if, in addition to these, I saw Digitized by Microsoft® S3 Duties of Attorneys an affable disposition, an inclination to candor and lib- erality of sentiment, a courteous and gentlemanly de- meanor and carriage — I would say, I have found the youth who will make a figure in his profession ; who will prove himself, in due time, a discreet confidential adviser to even the ablest, the most refined, the most fastidious and exacting, the highest in the land, as well as — mark me — to the very humblest : feeling as lively and real an interest in the affairs of the latter as of the former : and never likely to treat with unfeeling indif- ference or levity, or hear with a disdainful smile. The short and simple annals of the poor I Who is likely to shrink from no responsibility what- ever, that he ought to bear; not to be daunted by the most formidable obstacles ; nor tempted to go astray by the most dazzling opportunities. Far be it from me, gentlemen, to say any thing so ridiculous, as that none ought to enter the profession, unless blessed with such endowments and qualifications ; but I conceive that this is something like the standard to be kept be- fore one's eye, on such an occasion : and that the more of these qualities a youth possesses, the better and brighter his prospects ; the more he will be likely to start well in the race of life ; to ingratiate himself, first of all, with the gentleman charged with his professional education ; and with all those whom he will have to encounter in professional and social intercourse, and on whom it is of vital moment for him to produce a favor- able impression. If, on the other hand, I saw that a youth was of Digitized by Microsoft® AND Solicitors. 51 decidedly dull intellect ; of a sour, ungracious humor and spirit ; an unprepossessing appearance and address ; of an irascible temperament ; or of a mercurial and flighty disposition ; acute enough, possibly, yet incapa- ble of close attention ; rash, loose, and hasty in what he said and did ; prone to exaggeration, even up to the point of disregarding, knowingly, the dividing line between fiction and fact; with a perceptible tendency to tricking and overreaching : I would say. For Heav- en's sake, stay .' Don't send this lad into the law ! You are committing a downright sin in so doing ; ex- posing him to great misery ; giving him, if he should be able to get into business, either as a partner or alone, the means of doing grievous mischief, and inflicting much suffering, of ruining himself and others ! " Look then, on this picture — and on this: " and let the pro- posed attorney's clerk approach as near to the one, as he should be at a distance from the other ! The next all-important point is his education. If there be any profession which imperiously requires, but at the same time richly repays, the acquisition of a thoroughly sound, practical, liberal education, it is that of the law, equally in your department and in ours. If this be not evident to the youngest present, he is, as yet, utterly ignorant of the real nature of the legal profession : and if he were here on the former occasion, all then said was thrown away upon him. Be it remembered that the attorney and solicitor stands, as I said, in the front ranks ; is the very first to whom a layman comes, dismayed and confounded by the de- rangement of his affairs, of every sort, in every pro- Digitized by Microsoft® e2 Duties pf Attorneys fession, trade, and calling. Whendver his rights are questioned, his interests threatened; when: he means to challenge those of others ; how tangled and intricate . soever. the difficulties in which he has involved himself, or others have involved hinx; whether in respect of scientific discoveries,, made available, in trades and man-, ufactures, and depending .on exquisitely nice distinc-' tions;'the most'profound, recondite researches of natu/al and experimental philosophy ; whether, in the shape of immensely lucrative patents, or .copyrights, infringed; the performance of, scholarly and scientific engage- ments,, to be challenged or defended j pjr^acy charged in respect of the most i massive products of intellectual _ exertion, or trifles light as air — a novel, an essay, a song — a single song;! in respect of all the, mysteries of engineering, and machinery, and chemistry : - in . short, why should I go on ? ,For, as a great luminary of the law. Sir Henry Fjnch, long, ago, truly obsery.fd, "That sparks of .all spienices in the,. world are ta.kpn up in the ashes of the law." Now just realize to yourself, how the attorney and solicitor gets concerned, practi- cally, in these things. His client — it may be,, some . distinguished scientific man, whose honor and emolu- ments, the produce of a life's exhausting labor and thought, are assailed by another, by some one seeking fraudulently to reap where another has sown — flies to his professional adviser in this serious extremity, for his counsel and guidance. And what if he encounter a man of plainly inferior stamp, in respect of acquire- ment and mental capacity, and quite unable to grapple with the case presented to him : is it likely that the Digitized by Microsoft® AND Solicitors. 53 anxious applicant will intrust such precious interests to such unworthy and unsafe keeping ? Or go elsewhere, to some one recommended for his ability, by experi- enced friends, and who will show at once all the capa- bilities of a first-rate man of business, and of practical energy : quick at seeing the true drift and bearings of a case; however little acquainted with its scientific minutice, yet showing such powers of appreciating its general scope and character as could have been con- ferred originally by a liberal educajiion, only, and that, too,, syb^equetitly.imprQved? I know.such a striking and, painfully .interesting illustration , of , the , truth of what I am saying, as; would, qiake an. indelible impres- sion on you all, were I to mention it :, a case which occurred not many years, agp,T7-whi9h, literally, made the fortune of an able attorney, une:^pectedly .consulted ill; consequence qf the jncornpetency ®f the, gentleman who l^ad been fi.rst .engaged,, and, who Jell iiito a with- erijQg despond^pcy throviglf , , the desertion — surely a justifiable and compulsory one ; — of his distinguished client. I had this froni the lay-client himself, a gentle- man whose eminent name is probably known by all present. Qfie expression of his I \Yell remember. .!§pqaking of. h,is, former adviser, he said, "Poor fellow, my case was too big for him. He is, a very. worthy, honorable ma;j, but not educated quite upto the mark." Gen\\en^en^jjerl?umsa.pienti,/ _ - . ,,,,■,, Is it sought to make you , all natural philosophers, and great scholars,, befpre being articled as^ attorneys and solicitqrs ? Oh, no^ nothing of the kind — nothing so absurd; l?ut:do jiear jn mind -the times in which we 5*.' Digitized by Microsoft® CA Duties of Attorneys live ; when knowledge is so universally diffused, and the results of science are so incessantly intermingled in the ordinary affairs of life, and turned to purposes of practical account and profit, that the members of our profession are compelled to elevate the standard of acquirement and qualification far higher than suf- ficed in the days of our good grandfathers and great- grandfathers. And consider what facilities for really first-rate education now exist, almost everywhere, and of which persons far humbler in society — observe — than the classes from whom our profession is usually recruited, most eagerly and successfully avail them- selves. Gentlemen, we must not let ourselves be left behind, lest affairs get " too big," too high for as, as was the case with the unfortunate gentleman to whom I have just alluded. I venture to think, then, that a youth destined for our profession should, first of all, attend to the acqui- sition of our own noble language, in its Saxon purity and strength : a language which is overspreading the entire globe ; one which it is a matter of great pride, and far greater difficulty, believe me, than is generally supposed, to master. Consider, that the pen of an attorney and solicitor is really scarcely ever out of his hand : what he writes comes perpetually before the public, is read in open court, often on most interesting and important occasions, before keen, practiced, accom- plished critics — the judges, the bar, and his own watchful and emulous brethren : in briefs and instruc- tions for counsel ; and in those correspondences and "negotiations, of every sort, in which he is continually Digitized by Microsoft® AND Solicitors. 55 engaged, and in which his performances come under the eye of many more persons, lay and professional, and those far abler than he may dream of, and are commented upon and criticised by them freely, and sometimes, by opponents, very bitterly. Let, there- fore, this matter be early commended to attention, for practical purposes ; namely, the acquisition of a correct, clear, simple, and vigorous style of expression. That will be a great point gained. The Latin and French languages are also indispensable, for reasons which surely need not, in this place, be dwelt upon. Look at the printed and written books, records, and docu- ments, public and private, in both languages, which are continually the subjects of examination by all concerned in the legal profession, and which are, of course, as sealed books to one ignorant of those languages. And, as connected with this subject, let me call attention to the propriety of an articled clerk early familiarizing himself with the style of writing, and abbreviations, etc., used in old documents — records, charters, deeds, etc., in ancient English, French, and Latin. This will be of signal service, on many an unexpected occasion, as all know who are practically acquainted with the profession, and the course of judicial inquiries. A valuable book, " Wright's Court-Hand Restored^' has recently been republished in a thin quarto volume, and beautifully printed by Bohn, in York street, Covent Garden. I purchased a copy of it, for a mere trifle, the first time I accidentally saw it ; and find it not less interesting than useful. Now, I should imagine that such a work as this would prove rather an entertain- Digitized by Microsoft® cQ Duties of Attorneys ment than otherwise, to an intelligent youth, in earnest in pursuing his profession ; and one practical benefit which it would confer on him would be visible in its often enabling him to appear to great advantage on sudden, and sometimes public, emergencies. So much for languages — English, Latin, and French. Let me add, that a neat, distinct, and gentlemanly handwriting is a matter of no litde consequence, yet too often neg- lected. I have known many instances in which a bad handwriting, or even one not readily., legible, has in- jured, or endfing)2red, thp.jnterests of both attorney and client. , In one case a lopg negotiation, conductBd ■ most ably on both sides, very nearly to a: satisfactory issue, was on the point of, being repderedrutterly abor- tive, .whereby the clients would, have been thrown into harassing and expensive Htigatiop, through the defective handwriting, of one of the two correspondents, who, in ; making a critical and final proposal, wrpte two words so indistinctly that his opponent indignantly rejected the offer, ,and brpke-off the , -negotiationj conceiying the, words to be totally, different from \yhat had , been really meant by the writery and indicative of a wish, to ' j;evert to a condition lqn,g before abandoned. No answer was returned to the proposal for several ,days, when^-on a casual, mee;ting, the misconception was fortunately di?" CQvered and rectified, and a gqgd understaifding restored between both attorneys ap4 clients, ; ,;, AU persons .leaving much to do with manuscripts, especially in;Our profession, can appreciate the force of these iremarkg. i I have had some little experience in these matters, and,can speakieelingly. I have, beside?. Digitized by Microsoft® AND Solicitors. 57 to answer many more letters than is agreeable ; and whenever I receive one not readily legible — much more, if it be really difficult to decipher — I am apt to throw it aside .for a convenient opportunity, which may never arrive ; or hand it to some one else to puzzle out. How many communications to the great reviews and magazines have been unnoticed, the examination of them indefinitely postponed, or even angrily declined in toto, simply because of the repulsive handwriting, requiring a degree of attention and effort which those to whom the manuscript was submitted had neither the time nor inclination to bestow ! Some years ago, when I meddled more in such matters than I do now, I threw aside, for reasons above assigned, a manuscript forwarded to me for my opinion on its merits, and for- got altogether that I had received it, till four months afterward, when the persevering inquiries of its writer led to the discovery of the manuscript, which was re- turned to him, after I had made another vain effort to spell out the meaning of two or three pages. This I told him : he had the manuscript copied out fairly ; and it ultimately was published, and no one admired it more than I did. To return, however, to your duties in this matter. I have seen most mortifying consequences follow from the fault against which I am cautioning you ; errors in pleadings, conveyances, affidavits, and other legal doc- uments, which have been taken cruel advantage of by opponents, who were not always illiberal, but perfectly justifiable in doing so. The trouble and loss of time which are needlessly imposed on counsel, owing Digitized by Microsoft® eg Duties of Attorneys to indistinct or erroneous handwriting, particularly in figures, and the use of the abbreviations "pit." " dft." " dpt." for " plaintiff," " defendant," and " deponent," is often greater than might be supposed. I have my self spent many a weary hour in perplexed calculation, in cases involving matters of account, with reference to framing or advising on particulars of demand, and ad- justing to them pleas of set-off, payment, etc., or taking issue upon them, because the figure 7, for instance, was written like i, 3 like 8, and the abbreviation "pit." re- sembled " dft.," rendering confusion worse confounded: and, what is infinitely more serious, these slovenlinesses too frequently lead to nonsuits, and adverse verdicts — or, at least, to expensive applications to amend. I will conclude my observations on this subject by a remark made by a distinguished nobleman, lately dead, to his private solicitor who told me of it a short time ago. " It is inexcusable in a man to write ill through haste. He is very selfish in doing so ; for, to save his own time and trouble, he imposes a heavy tax on those of others ; and I, for one, always feel indignant when I find myself thus treated." Short- hand is a valuable accomplishment ; one which I have often seen confer such advantages on its posses- sor as have made me vow many times that I would acquire the art myself It enables you to take out your pencil at a moment's notice, and note down ver- batim words perhaps of infinite importance, and of which it may hereafter prove of great service to your- self and your clients to have an accurate record. So many instances of the truth of these remarks must be Digitized by Microsoft® AND Solicitors. 59 occurring to most of those present, that I shall say no more upon the subject. The next point to which I invite attention, in train- ing the young attorney and solicitor, is one which I feel to be of the utmost practical importance ; one in re- spect of which attention or negligence will be followed by beneficial or vexatious and mischievous results, throughout his career ; I mean a thorough and ready knowledge of arithmetic and book-keeping — in a word, of accounts. At least three-fourths of his practice in- volve the necessity of this knowledge. Look, for in- stance, at the business in the offices in which almost all of yoti may have been engaged this very day : how much of it was unconnected, in some way or other, with disputed accounts between customers and credit- ors, bankers, merchants, and tradesmen, in this great commercial community ? Why, figures are the weap- ons with which fraud and honesty are here hourly encountering each other : and dull, confused, inexpert honesty is constantly tripped up and vanquished by sharp, skillful and practiced fraud : which, in its turn, is often signally discomfited by an acute and experi- enced master of figures, well versed in unraveling their fallacies and sophistries. It was once said by a great parliamentary financier, that any body understanding figures could make them say and prove what he pleased. You will be incessantly called upon to protect your client from such juggling and chicaneries, which you ought to be able to deal with promptly. Never let him go to an accountant to unravel accounts, which seem, and perhaps only seem, beyond your own reach, except Digitized by Microsoft® 6o Duties of Attorneys under special circumstances and in pressing emergen- cies. Why should you ? Why should you not be master of accounts and book-keeping as well as he, though from practice he may happen to be a little more rapid in his operations than you ? Rely upon it, that you often injure your client's interests in doing so, and seriously compromise your own. Of this I have seen several instances. I know that accounts are not a very charming branch of your duties ; but it is one demanding your best attention, and from the beginning. If you be but heartily satisfied, early in your career, of the justness of this suggestion, practice will soon make perfect. A glance of your trained eye will detect and expose the fraud of the most skillful swindler's fabricated books ; books which might utterly mislead, deceive, and confound another, less expert than I shall suppose you to have become. What innumerable illustrations of these truths must be occurring to all the practical lawyers present ! Look, for instance, at the business in bankruptcy and insolvency, and the infam- ous knavery, by means of these same figures, which it is eternally disclosing ! Why do I dwell so much upon this topic ? Because, gentlemen, I feel its vital import- ance to your best professional interests, and to those of the public, and have seen so many cases in which inattention to it has been followed by the most unfor- tunate and mortifying consequences. Now it is too much the habit of youth, especially in what are con- ceived to be fashionable classical academies, to neglect this branch of their studies as distasteful and trouble- some, and not sufficiently dignified, forsooth ! for their Digitized by Microsoft® AND Solicitors. 6 1 attention ; or, if compelled to go through the usual school routine, the moment the scholastic exigency is over, away go ciphering and accounts, book-keeping, "and all that," as being fit only for tradespeople ! As though the thoughtless youth were not, in so doing, casting away a weapon most potent in the warfare into which he is destined to enter ! Your clients may be great public companies; bankers, merchants, trades- men, wholesale and retail; their business comes into your hands, generally, in the shape of disputed ac- counts, sometimes of such intricacy as almost defies unraveling; and if you be not really equal to it, that business will assuredly soon find itself elswehere. For these reasons, it is very desirable that, when a youth is probably destined to the legal profession, the importance of this part of his studies should be early and dis- tinctly explained to him, and continually afterward kept in view. For the purpose not only of disciplining the mind, but of preparing it to encounter hereafter cases involv- ing scientific knowledge, such as I have already ad- verted to, it would be highly desirable for the future attorney and solicitor, toward the close of his prelim- inary general education, to be initiated into at least the elements of mathematical knowledge — of algebra and geometry; and also of natural and experimental phi- losophy. I mean the elements only; as the further prosecution of such studies should depend on oppor- tunity and inclination. Surely the propriety, and in- deed necessity, of acquiring some sound information on these subjects, however sparing, so it be but accurate 6 Digitized by Microsoft® 62 Duties of Attorneys and well remembered, will be obvious, on adverting to the class of cases already noticed: cases necessarily involving such knowledge, and with which you can hardly expect to be able to deal satisfactorily, either to yourselves or your clients, if every topic come to you with the startling glare of utter novelty. If you be blankly ignorant of even elements, how can you com- prehend and fittingly appreciate the instructions given by your client, and efficiently follow them up ? Do you think of being his mere scribe ? A mere machine, to transmit mechanically his views and his interests to others ? Is that really safe or creditable ? And sup- pose you find yourself opposed to a professional brother who is far your superior in these matters, either through longer experience, or natural relish for such pursuits ; having given to them an earlier and better sustained attention than you have ; at what a sad disadvantage will this place not you only, but your client And really, to one in earnest about qualifying himself for such a profession as yours, with such numerous oppor- tunities afforded him for displaying superior acquire- ments, it should seem but a small matter to strive to avail himself of some of the many facilities for acquir- ing such knowledge, which exist in the present day, especially in the metropolis. Why should not a youth, for instance, in the latter years of his clerkship, or a young practitioner soon after starting in business, attend a course or two of lectures on Mechanics, Chemistry, and the Steam engine ; if only to become familiar with the phrase- Digitized by Microsoft® AND Solicitors. 63 ology, and acquire a correct general notion of leading principles, sufficient to prevent him from being, or, at least, shotving that he is, confused and bewildered by the details with which he may be called on to deal ? If you have the least doubt as to the soundness of the advice which I am giving, come into the library, here, to-morrow, and take down any number of the Re- ports ; run your eye over the index, under the word " Patent," or " Copyright in designs," and turn to the first case which you will find to have been brought before the court. See what an intimate knowledge of scientific details appears to have been required, and exhibited, by judge and counsel, in dealing with the evidence of scientific witnesses, the validity of patents, the sufficiency of specifications ! Now, through whose hands did all those matters come, before finding their way into those of counsel, jury, and judge ? Whose, but yours ? Who was it that had first to communicate with the scientific lay-client, receive his instructions, lay a sufficient case before counsel, get up and prepare the evidence, and draw the brief ? Who, but you ? And whose duty is it to sit in court during the trial, or argument, calmly watching its progress, appreciat- ing a coming pressure, and anticipating it by a skillful suggestion to counsel, or procuring additional evidence to meet it ? To see the drift of what is going on, to perceive the real course of the current, does not your own common sense tell you, that you must really know something about these matters Ask some of your friendly seniors — your own master, to lend you an Digitized by Microsoft® 64 Duties of Attorneys old brief in some great patent cause.* Take it home with you ; read it over carefully ; and I am much mis- taken if it will not alarm a weak mind, but stimulate a strong one into making exertions commensurate with the exigency which it discloses. The same result may * An excellent practical commentary on the text is aflforded by a case (the Attorney-General v. Firmin) at this moment in the author's cham- bers. It is that of an information by the commissioners of excise against the defendant, for an alleged breach of the revenue laws, in having in his possession a large quantity of sweet spirits of niter, into the composition of which had entered spirits of wine, which, it was admitted, had been illegally distilled ; but of that fact, it was conceded by the crown, that the defendant was ignorant. The Court of Exchequer had, shortly before, expressly decided that even had a purchaser known that fact, the sweet spirits of niter which he bought would not be seiza- ble in his hands ; " having become o new composition, one which was in itself a well-known article of commerce, not commonly known as ' spirits,' and not adapted for ordinary use as an intoxicating beverage." See Attorney-General v. Bailey, 1 Exch. Rep. 281. Now, in the case of the Attorney-General v. Firmin, the defendant, a wholesale druggist of great respectability, was admitted by the crown, as above stated, to have known nothing whatever of the spirits of wine having been ille- gally distilled, and to have become possessed of the sweet spirits of niter, openly, in the ordinary course of business. The defendant died before the information for the recovery of the penalties from him could be tried; it having stood over to await the judgment of the court in the Attorney-General v. Bailey. When this latter case was decided against the crown, the widow and executrix of Mr. Firmin applied to the com- missioners for the return of the sweet spirits of niter which had been taken from her husband ; but they still persisted in their right to retain them, as a seizable article, and filed an information in rem, to try the point de novo I Very eminent chemists were called at the trial, on the l6th of May, 1848, to prove what was the real nature of sweet spirits of niter (a compound produced by the distillation of spirits of wine and nitric acid, mixed together in certain fixed proportions). The. witnesses differed as to whether those two ingredients were only mechanically mixed or chemically combined ; the crown contending that, in the former case, tlie spirits of wine might be redistilled, and were consequently seizable; Digitized by Microsoft® AND Solicitors. 65 be arrived at by glancing into any of the treatises on Patent Laws.* Do not slip into the notion that all these weighty matters are to rest on the shoulders of counsel : it is a preposterously false notion. Who set them in motion but yourselves ? What speak they from, but their brief ? I cannot quit this part of the subject, without sug- gesting the propriety of making logic one of the early studies of those preparing for your branch of the pro- 'fession. Only consider how necessary it is to _ have jJL lu. ^ _j -^ .' ■ - . - - and thyt,- were it toi be beld; otherwise, the , revenue might be easily de- frau4?4, ^'°^ *^° ^ ajarming^ and ii^definite extent. . The Lord Chief B^on put this question to the jury: "Can you say, on the scientific evidence which you have- heard, whether this was' a case 6f mere 'me- chanical mixture, withou't any chemical poipbinatioii ; oi: are you in such doubt that you.c^nnotj cqme tq a ;satisfact<^ry cpnclusion in the matter?" The jury replied, after a brief consultation: "That the scientific gen- tlemen who had been called, themselves diife'red, of doubteil; and tTifey, the jury, tould" hardly be-" expected to be 'able to decide where doctors differed; and therefore, for answer to the qupstion proposed, they said that they could not tell whether the, spirits of wine and nitric acid were mechanically mixed or chemically combined." On this tlie Lord Chief Baron directed the verdict to be entered for the defendant ; ' observing that he regretted to. see the grown, perpever^g with such a case, after exonerating the defendant from all fraad or guilty knowledge ; and that when the chemical fact was so exceedingly doubtful) that even their own Scientific witnesses ffould not say that' th&e had «ff#_been a'cheinioal - combination, rhow coiuld jplain merchants . and men [pf ^),uf iness carry qn their Affairs,, if required to possess such knowledge? On this the Soli- citor-General tendered a bill of exceptions to tlie ruling of the Lord Chief Baron, which is how (2i'st June, 1 848) lying before the author, to settle on the ipart of the defendant.. . -,. . ,: 1, , . _ .- • , * The author begs to refer the stu(^ent to chapter v, jjart 2, sections I, 2, 3, of the last edition of the author's "Popular and Practical In- troduction to Law' Studies;" where -the topics' mentioned in the text are are of our liberties; and how sternly the judges vindicate those liberties whenever they are rashly and unjustly assailed ; and that it is within their province to decide whether there was or was not probable cause for the arrest or prosecution.* The duty of the jury is to decide, only, whether those facts exist, from which the judges deduce their con- clusions ; and, in doing this, the jury must inquire v^xy deeply into the motives and itttentions influencing the * Panton v. Williams, 2 Q. B. 169; Michell v. Williajns, 11 Mee. and W. 205. Digitized by Microsoft® AND Solicitors. 245 parties at the time.* And this being so, anticipate this searching scrutiny, and consider well whether you or your client's case will be able to bear it : to satisfy the jury that you acted, not from vindictiveness, nor from any otlier sinister motive, nor with precipitation, but bona fide, with honest and just intentions, and proper motives. And observe, that all this will have to be established by evidence in open court. Shall you be able to provide that evidence ? By what witnesses ? By what documents ? Here let me call your attention to a great safeguard which you may throw around yourselves and clients, viz., by taking counsel's opinion before you make the decisive move. But observe, it will, after all, be put to the jury, whether you or your client acted bona fide on counsel's opinion, or obtained it as a mere cloak of maliciousness ! The late Mr. Justice Bayley thus cautiously expressed himself on this subject in the case of Ravenga v. Mackintosh, 2 B. and C. 697 : " I accede to the proposition, that if a person lay all the facts of his case fairly before coun- sel, and act bona fide upon the opinion given by that counsel (however erroneous that opinion may be) he is not liable to an action of this description," viz., for malicious prosecution or arrest. To make, therefore, counsel's opinion worth having, be perfectly candid in the case which you submit, remembering that it may come hereafter before a judge and jury; and if it should appear that you must have known, or ought to have known, facts which are not stated in the case, or * See the cases last cited, and also Taylor v. Williams, 2 B. and Adol. 845. ^Wigitized by Microsoft® 246 Duties of Attorneys that you have unfairly stated them, the opinion so ob- tained will not only do you or your client no good, but very great harm, as affording strong grounds for inferring premeditation.* The recent case of Gibbons V. Alison (3 Com. Bench, 181), may serve to illustrate what I am saying, and also the necessity of caution and candor in framing the affidavits on which you apply to a judge for a capias under statute i and 2 Vic. c. no, § 3. How would you have liked to hear Lord Chief Justice Tindal charging you, as the framer of such an affidavit, with "an evident suppressio verif" saying, also, that " if the facts had been correctly rep- resented to the judge, he would not have made the order for the arrest ? " Let me add, before quitting this topic, that, in taking an opinion as above sug- gested, I advise you to lay your case before a counsel experienced at nisi prius, who is familiar with the course of causes of this description, when brought into court, and will give you a safe, practical opinion founded upon that experience. Beware how you mingle your client's money with your own at your bankers ; for if those bankers should fail, you will have to make good the loss to your clients. Of this the case of Robinson v. Ward (Ryan and Moody, 274) is a miserable example : for there the attorney, a gentleman of the highest respectability and honor, had to make good to his client no less a sum than £<„ZOo\ Lord Tenterden lamented the hardship of the case, but applied the rule of law [* Hall V. Suydam, 6 liarb. 83 ; Ames v. Stearns, 37 Howard's Prac- tice Reports, 287; Ross v. Inness, 4 American Law Reg., N. S., 282.] Digitized by Microsoft® AND Solicitors. 247 firmly. That misfortune arose out of Fauntleroy's forgeries. The sum in question, being the produce of the sale of an estate belonging to the defendant's client, was deemed by the former too large a sum to be kept in his own house. He, therefore, paid the whole, in the identical notes which he had received from the purchaser of the estate, into the bank of Marsh and Company, in which Fauntleroy was a partner; but he paid it in, together with ;£"ii6 gs. i\d. of his own, to his own private account. Three weeks afterward the bank stopped, with £\,6oo of the attorney's own money, beyond his client's £S,ZOo; and the unfortu- nate attorney, " upon whose conduct," said Lord Ten- terden, " not the shghtest suspicion could rest," had to make good to his client the whole sum of ;^5,30o! The following language of Lord Tenterden, on that occasion, is well worthy of your attention for your own practical guidance : There are three modes which a person, circumstanced as the defendant, may adopt. First, he may keep the money in his own house. As to the consequences of robbery by force in such a case I express no opinion ; but we are all aware of the consequences of a private theft* Secondly, he may pay the money in to his banker, in his own name, to be placed to his own credit. Thirdly, he may pay it in his own name, and, at the same time, open a separate account, which would specify on what account the money was paid. Thus, if, in the present instance, the money had been * See on this point the useful note of the Reporters, p. 276, note (o). Digitized by Microsoft® 248 Duties of Attorneys paid into the house of Marsh and Co., in the defend- ant's name, but on account of Mr. Robinson's estate, this, in the words of Lord Hardwicke, would have ' ear-marked it ; ' and the money, in case of the death of the defendant, would have been forthcoming. But if a person mixes up money which he has thus re- ceived on account of a third person, with his own, he makes himself debtor to the estate out of which the money arose." And thus Mr. Ward had to pay to his client ;£'5,300, besides all the costs of the action, and losing, also, upward of ;^i,6oo of his own money ! There are other reasons why it is inexpedient for you to intermingle your own and your client's money, and why you ought to act on the suggestion of Lord Tenterden. You ought to have two distinct accounts with your banker; one, your own private account; the other, you might style your "professional account," or "trust account," specifying always the name of the client whose money you pay in ; but, at all events, in some way or other, keep your own and your client's money perfectly distinct and separate from each other. It is your sacred duty, gentlemen, to have your affairs, which are, in fact, those of others, confidentially committed to you, always in such good order — so well arranged — that, in the event of sudden illness, acci- dent, or death, overtaking you, your clients shall be subject to no delay, injury, or inconvenience, and have no reason to repent having placed themselves and their affairs in your hands, but will, on the contrary, ever respect your memory as that of a conscientious and Digitized by Microsoft® AND Solicitors. 249 exemplary professional man. And let me entreat you never once to yield to any feeling of disinclination, or fear to look into your affairs. The instant that such fear or disinchnation exists, it shows "something rotten" in those affairs — that they are in an unsound state ; and the sooner that such unsoundness is thor- oughly probed, the better. Delays here are dangerous indeed ! The law is exquisitely and sternly sensitive concern- ing th€ good faith to be observed, in reference to mat- ters of property, by so intimate and confidential an agent as an attorney and solicitor ; watching every such transaction between him and his principal, with extra- ordinary jealousy, and surrounding the latter with every safeguard that can be devised against even the chance of abusing confidence. It exacts from the attorney and solicitor uberrima fides, that is, the high- est possible degree of good faith. Mr. Justice Story* has some excellent observations on this subject. " It is obvious," he says, " that the relation of a client and his attorney, or solicitor, must give rise to a great con- fidence between the parties, and to very strong influ- ence over the actions, and rights, and interests of the client. The situatio'n of an attorney, or solicitor, puts it in his power to avail himself not only of the neces- sities of his client, but of his good-nature, liberality, and credulity, to obtain undue advantages, bargains, and gratuities. Hence the law, with a wise providence, not only watches over all the transactions of parties in * I Equity Jurisp. } 311. Digitized by Microsoft® 250 Duties of Attorneys this predicament, but often interposes to declare trans- actions void, which, between other persons, would be held unobjectionable. It does not so much consider the bearing or hardship of its doctrine, upon particular cases, as the importance of preventing a general public mischief, which may be brought about by means secret and inaccessible to judicial scrutiny, from the danger- ous influence arising from the confidential relation of the parties. By establishing the principle, that, while the relation of client and attorney subsists in its full vigor, the latter shall derive no benefit to himself from the contracts, or bounty, or other negotiations of the former, it supersedes the necessity of any inquiry into the particular means, extent, and routine of influence, in a given case — a task often difficult and ill supported by evidence which can be drawn from satisfactory sources." You will find this subject well discussed by Lord Brougham, in the case of Hunter v. Atkins, 3 Mylne and Keen, 11. I would also refer you to two highly important and instructive judgments, respect- ively of Lord Eldon, in Bulkeley v. Wilford (2 C. and Fin. 102), and of Lord Cottenham, in De Montmorency V. Devereux (7 C. and Fin. 188), both decided by the House of Lords. Frequent meditation on these prin- ciples will tend to engender in you a habit of scrupu- lous and fastidious nicety and delicacy, in respect of all dealings concerning property, between you and your clients. It will also serve to guard you against inadvertencies which, though perfectly innocent, may yet entail upon you suspicion, vexation, and loss. Gentlemen, do not make haste to be rich. Perfectly Digitized by Microsoft® AND Solicitors. 251 true is the old saying, "soon ripe, soon rotten." Be- sides, the efforts thus to become rich have a natural tendency to impair a fine sense of honor and integrity. You may soon slip into an eager, selfish, money-mak- ing humor, disposed to render tributary every body and any thing that comes in contact with you, and become unscrupulous about the means resorted to for attaining unholy ends. Eschew speculation. Who would knowingly intrust his property to a speculating attorney or solicitor, any more than to a speculating banker ? If you speculate openly, the firmest connection will quickly melt away from you ; if you do so secretly, will it not be also guiltily ? Assuredly ; and the evil day may overtake you far sooner than you could have imagined. Gentlemen, I observed in my first lecture,* that there is one very solemn responsibility cast upon you by your profession — in respect of your client's "intrust- ing his conscience to you," on very many occasions — and I said that I should revert to the topic. I do so now, but shall be bfief, though I feel strongly upon the subject, believing it to be one of paramount import- ance. You are, indeed, often intrusted with our consciences — you yourselves, our own sworn advisers — to you we give the charge of our consciences ; and a delicate if not perilous trust it is, in the eye of a conscientious practitioner, aware of his relations toward his fellow- creatures and the Almighty God. * Ante, p. 42. Digitized by Microsoft® 252 Duties of Attorneys Gentlemen, our rights and interests never seem so dear and valuable to us as when they are questioned or denied ; and he who does so very quickly and easily ■ becomes our enemy, whom we would strain every nerve to defeat. Those interests and rights it is often in our power, and through your intervention, to serve and secure by our own oaths. Those oaths we take by your assistance ; the terms of them are frequently framed by you. Take care of us, gentlemen, take care of us, and help us to take care of ourselves, on these critical and dangerous occasions ; for human na- ture is very weak, temptation often fearfully strong, and, as far as this world is concerned, impunity is often complete. Let me venture to propose to you a cardi- nal rule, to be acted upon by you uniformly, in dis- charging this portion of your duties. When we are to depose in our own behalves, either viva voce or in affidavits, answers in chancery, and otherwise, extract from us our own true knowledge and belief as to past facts, belief, or intentions, before you permit us to see what it is our interest to represent ^em to have been. Use all your sagacity in doing this. If, after your client has discovered where his interest lies, he should appear disposed to vary his statement or recollection accordingly, be firm — if need be, indignantly firm and inflexible — telling him that you will not permit him to perjure himself: that if you did, your own guilt would be greater even than his. Oh, that you would let this momentous subject have the consideration which it demands ! It would give a very grave com- plexion to a large proportion of your professional Digitized by Microsoft® AND Solicitors. 253 duties — to all those which the judicial system at pres- ent requires to be transacted through the intervention of an oath. Desiring to speak with the greatest possible diffi- dence, I nevertheless cannot help expressing a fear, that an oath is required far too frequently, and on utterly inadequate occasions, in the conduct of legal business; to an extent which is calculated to impair the sense of its awful character and incidents. Surely it is an act of tremendous significance, deliberately to invoke THE Deity to witness that what is said on a given occasion is the truth, the whole truth, and noth- ing but the truth. I have sometimes shuddered at witnessing the unconcern, and even levity, with which oaths are administered and taken, so as almost to de- generate into mere irreverent form. In Scotland, the oath to witnesses is administered with a grand solem- nity. The judge rises from his seat, and, raising his right hand, requires the witness to do the same ; and then, their hands remaining elevated, the witness re- peats after the judge the following words : " I swear, by Almighty God, and as I shall answer to God at the great day of judgment, that I will tell the truth, the whole truth, and nothing but the truth." What could be more calculated to solemnize the mind, to search and quicken the conscience, than such an oath so administered ? It might be as well, perhaps, if such were to be the practice in our own courts. However this may be, I appeal to every one present, whether oaths are not at present taken on a vast num- ber of the most trivial occasions that can occur in the 99 ■'■' Digitized by Microsoft® 2^4 Duties of Attorneys course of ordinary business ; administered hurriedly ; taken without adequate reflection on the nature of the act; given and taken, in fact, almost mechanically — the dread words, " So HELP YOU GOD 1 " pronounced trippingly on the tongue, while the lips touch the sa- cred volume with hasty, impatient action, the soul taking no part whatever in the matter ! As if God had never uttered that awful command. Thou shalt not take the name of the Lord thy God in vain ; for the Lord will not hold him guiltless that taketh His name in vain. Gentlemen, if the public saw as much of these matters as you and I see, I think they would immedi- ately urge upon our Christian legislature further steps in the direction which it has lately taken ; I mean, in enacting the statutes substituting declarations for oaths, on many occasions.* Why is it that our courts and * Stats. 5 and 6 Will. IV, u. 62 ; 8 and 9 Vict. c. 48s The following is the "declaration " prescribed by the former act, to be taken in lieu of an oath, in all the cases there specified : " I, A. B., do solemnly and sincerely declare, that (etc., etc.). And I make this solemn declaration, conscientiously believing the same to be true, and by virtue of the pro- visions of an act made and passed in the year of the reign of his present majesty, entitled 'An act' [Here insert the title of this act]." By section 21, whoever shall willfully and corruptly make and subscribe any such declaration, knowing the same to be untrue in any material particular, shall be deemed guilty of a misdemeanor. The second of the acts here referred to was passed in the year 1845, and commences with the following recital : " Whereas it is highly desirable that oaths shall not be administered unnecessarily, by public authority, and there is reason to believe that the examination of a bankrupt, or of the wife of a bankrupt, before commissioners in bankruptcy, will be equally effectual for obtaining a disclosure of the truth, and a full discovery of all that can be useful, for the benefit of creditors, when such examina- tion is conducted without oath." It then proceeds to prescribe the ful- Digitized by Microsoft® AND Solicitors. 255 judges, and often subordinate public officers, can re- ceive or act upon no statement — on even the most trivial occasions — unless God Almighty be first called upon to witness that the deponent is telling them the truth ? Ought this to be tolerated ? Why not take a hint from the heathen poet ? — " Nee Deus intersit, nisi dignus vindice nodus I God forbid, that, on occasions of adequate importance, a person should not be required to pledge his oath deliberately to the truth of his statement — to the sin- cerity of his belief and intention ; but in the name of all that is decorous and reverential, why should the same solemn ceremony be adopted in order to obtain a distringas ! to set aside petty proceedings for trump- ery irregularities ! to satisfy the court or a judge of the due service of rules and notices ! that there is a good defense to an action on the merits ! or, in an affidavit of increase, to satisfy the master of the truth of a paltry detail of pounds, shillings and pence, paid to witnesses, in tavern expenses and so forth ! You lowing forms of declaration (by section 2 annexing the penalties for perjury to the falsely making it): "I, A. B., the person declared u. bankrupt under a fiat in bankruptcy [or, "I, C. D., the wife of," etc.], do solemnly promise and declare, that I will make true answer to all such questions as may be proposed to me, respecting all the property of the said A. B., and all dealings and transactions relating thereto and will make a full and true disclosure of all that has been done with the said property, to the best of my knowledge, information and belief. (Signed) A. B.," or, " C. D., the wife of the said A. B." In addition to the imposition of the penalty above mentioned, section 3 enables the commissioner to commit the party to prison for giving answers deemed by such commissioner "unsatisfactory." Digitized by Microsoft® 256 Duties of Attorneys know that I could occupy hours in enumerating the trifling occasions on which we audaciously venture thus to appeal to the Deity. So long, however, as the law unhappily requires this to be done, it surely becomes you, who are principally concerned in these matters, either as deponents your- selves, or in causing your clerks, clients, and others to become deponents, to be most scrupulously conscien- tious ; that if you must be thus incessantly rushing into the dread presence of the Almighty, in obedience to the laws of your country, you may at least have the consolation of reflecting that you have never done so rashly, or hastily, or falsely, or been in any way acces- sory to others incurring such fearful guilt. There is still, gentlemen, another branch of your duties, the due discharge of which is a matter of im- mense importance to all classes of society. I allude to a subject at which I have already several times glanced in former lectures '^ — that of making, or advising us in making, our WILLS. What ability and integrity are requisite here, to enable you to acquit yourselves satisfactorily — even to avoid a breach of your sworn trust! I have, however, spoken already on this subject, and would refer you to what I have said ; requesting your attention, bestowed in a serious and candid spirit, to what I have yet to offer. I doubt, whether, in the whole range of your duties, there be one, the discharge of which is attended with greater anxiety and responsibility than that which is * Ante, pp. 18-21, 114, et seq. Digitized by Microsoft® AND Solicitors. 2?7 often cast upon you — of determining on the mental competency of a testator to make a will* Pray, bear in mind, when called to this exercise of your discre- tion, the ordeal through which you may afterward have to pass — the severe scrutiny to which your de- cision may be subjected in a court of justice. Let this reflection serve as an incentive to circumspection. Only consider what caution is requisite ! Suppose, for instance, you should, in your conscience, believe your client incapable of making a will, while he, and those about him, think otherwise : what will you do ? Suppose you should refuse to be concerned, and death intervene, followed by intestacy : even the medical attendant concurring with the relatives and attendants in thinking that the testator was capable of making a will ? Well, gentlemen, even in an extreme case like this, I conceive it to be your duty to act firmly in con- formity with the dictates of your own conscience, and refuse to carry into effect what you believe to be only spurious wishes and intentions. If you should unfor- tunately have erred in your judgment, it will be an honest error, provided you really exerted your facul- ties to the utmost in coming to your conclusion. You may be consoled by reflecting that the intestate's own negligence and procrastination conduced to the disap- pointment of his wishes, and the wishes and hopes of those whom he meant to benefit ; and also devolved on you an unfair amount of responsibility, in deter- mining, comparatively without assistance, so moment- * See some valuable suggestions on this subject in Williams on Execu- tors, Vol. I, tit. " Of the capacity to make a will." OQ* Digitized by Microsoft® 258 Duties of Attorneys ous a question as that of his capacity or incapacity to dispose of his property. He has yet cause to be thankful that the law is at hand to supply his omis- sion ! In a case of this description, you should be guided, to a great extent, by the opinion of the medi- cal attendant, especially if he be a person of established character fot ability, experience and honor. Your own strongest impressions might well give way befoi* his, on the maxim, cuique sua arte credendum. Your diffidence should be great, in proportion to his confi- dence, in a matter so peculiarly within his province, so frequently the subject of his observation and experi- ence. It is possible that a conscientious practitioner might, under such circumstances, be unwilling to incur the vast responsibility of refusing to carry into effect the wishes of his client and his family ; and might, as it were, under protest, prepare the will, expressly warn- ing those concerned that, if it should be questioned, he would declare his opinions openly in court, leaving a jury to decide whether the will was, under the cir- cumstances, valid or not. This, however, is obviously a suggestion requiring the greatest caution in acting upon it, as well to prevent cowardly mental compro- mises on the part of honorable but timid practitioners, as to avoid affording a pretext and opportunity for in- numerable and disastrous frauds to the unscrupulous. It is difficult, if not impossible, to lay down a general rule on the subject, for each case must depend on its own circumstances. The responsibility, after all, rests with yourselves, of surrendering your conscientious judgment, or adhering to it with unjustifiable perti- Digitized by Microsoft® AND Solicitors. 259 nacity. In such cases, I think I should be guided not a little by the nature of the will which it was proposed to make. If its provisions appeared reasonable, just, and suitable to the position of the testator and his family — in duly consulting the interests, for instance, of his wife,- children, and near relations, or old and valued friends — that of itself would afford most cogent evidence that the testator possessed a true disposing mind. If, on the other hand, he proposed to make an unjust, a cruel, or capricious disposition of his prop- erty — disinheriting a child, or children, making no provision, or a grossly inadequate one, for a deserving wife — or alienating his property for absurd, unworthy, or disreputable purposes; I should be strongly dis- posed to let that circumstance turn the scale, and should refuse to be any party to framing an instrument which would act so unjustly, unreasonably or tyranni- cally. Nay, I question whether I would give any assistance to a testator, however mentally sound, if so morally unsound ; gravely pausing, at all events, before I gave irrevocable operation to death-bed caprices, prejudices and antipathies. I knew a gentlemen, a London attorney of eminence and very high honor, who acted thus, on a particular occasion, and refused to make a will by which a client intended to disinherit his son. The testator lived to think better of it ; ex- pressed great thankfulness to the gentleman in question for his firmness and high principle; and ultimately made a will in conformity with the dictates of nature and religion. To return, however, to your client's chamber : In cases of doubt, such as that above sup- Digitized by Microsoft® 26o Duties of Attorneys posed, remembering the public scrutiny to which the transaction, and particularly your share in it, will be exposed, secure good evidence of the true state of things, by having some disinterested witness present — the medical man, the clergyman, if within call, some respectable neighbor or friend of the dying person — some one, in short, whose name will not appear in the will, otherwise, possibly, than as witnesses. Above all, use your utmost exertions to secure efficient attesting witnesses — persons of character, intelligence and firm- ness — such as are not likely to be shaken by the most violent cross-examination to which they may be ex- posed by counsel engaged on behalf of persons deeply interested in nullifying their testimony ; and of such respectability and probity as will bid defiance to all attempts to tamper with them. It will sometimes become your duty to watch with lynx-eyed jealousy selfish persons who may be endeav- oring unduly to influence testators ; in order that you may defeat cunning and nefarious machinations, or at all events be no assisting party to them. What execrable manoeuvers in the dying person's chamber may be frustrated by an acute, a vigilant, and honor- able attorney ! Take your instructions for a will from the testator himself, personally, and never, when you can avoid doing so, from third persons, particularly from any one interested, in any degree, in the disposition of the tes- tator's property. The validity of a will formed the subject of an action tried on the Northern Circuit, a few months ago, and the judge took occasion to Digitized by Microsoft® AND Solicitors. 261 declare, at the end of the case, that all the difficulty and doubt had arisen from non-observance of the rule which I have just laid down, and which may be pre- sented to you in a much better and an authoritative form in an extract from a judgment of the late Sir John Nichol. In the case of Rogers v. Pittis (l Addams, 46), he " admonished professional gentle- men, generally, that where instructions for a will are given by a party not being the proposed testator — a fortiori, where by an interested party — it is their bounden duty to satisfy themselves thoroughly, either in person or by the instrumentality of some confiden- tial agent, as to the proposed testator's volition and capacity ; or, in other words, that the instrument ex- presses the real testamentary intentions of a capable testator, prior to its being executed, de facto, as a will, at all." Attention to these suggestions may save you from many unpleasant and injurious insinuations and reflections, tending, at all events, to impugn your pro- fessional tact and vigilance. You are bound morally, as well as legally, to possess a familiar and accurate practical knowledge of the leading rules of law applicable to wills and testaments ; seeing you are often called upon suddenly to frame these important instruments. A large portion of your time ought to be devoted to the acquisition of this knowledge. It will always repay your exertions — of that you may rest assured. By way of a beginning, I would advise younger practitioners to study carefully the brief but valuable " Sttggestions to persons taking Instructions for Wills," which may be found in the Digitized by Microsoft® 262 Duties of Attorneys Appendix to the second volume of Mr. Jarman's ex- cellent "Treatise on Wills." The following observa- tions, with which it opens, are well worthy of your attention : " Few of the duties which devolve on attorneys or solicitors more imperatively call for the exercise of a sound, discriminating, and well-informed judgment, than that of taking instructions for wills. It frequently happens that, from a want of familiar acquaintance with the subject, or from the physical weakness induced by disease — where the testamentary act has been, as it too often is, unwisely deferred until the event which is to call it into operation seems to be impending — tes- tators are incapable of giving more than a general or imperfect outline of their intention, leaving the particu- lar provisions to the discretion of the professional adviser. Some testators, indeed, sit down to the task with so few ideas on the subject, that they require to be informed of the ordinary modes of disposition, under similar circumstances of family and property, with the advantages and disadvantages of each ; and their judgment, in the selection of one of these modes, is necessarily influenced by, if not, indeed, wholly dependent upon, professional recommendation. To a want of complete and accjirate information, as to the consequences of their proposed schemes, must be as- cribed many of the absurd and inconvenient provisions introduced into testamentary gifts : to say nothing of the obscurities and inconsistencies which frequently throw an impenetrable cloud over the testator's inten- tions. It may be useful," proceeds the very able and Digitized by Microsoft® AND SdUCITORS. 26a learned author, " to mention some particulars on which information should be obtained in taking instructions for a will ; most of the inquiries here proposed having been suggested by the various classes of cases dis- cussed at large in this work, and being framed with a view to prevent such questions as those cases present." Then follow the truly valuable suggestions in question, occupying three pages only of the work. So strongly do I feel the necessity of young attor- neys and solicitors early acquiring accurate information on this critical subject, that I should, if I had any share in directing the examinations in this hall, always require the candidates to carry into effect, in proper form, certain proposed cases of testamentary disposi- tion, both of realty and personalty, with a view of ascertaining how far they were already capable, or entertained just ideas, of accompHshing the objects — of effectuating the intentions — of testators suddenly placed in extremis. I should also always propose questions adapted to test their knowledge of the prac- tical working of the Statutes of Distribution* Gentlemen, I cannot quit this most interesting and important subject, without reminding you of the scope for noble and virtuous action, which is often afforded you, in resisting temptations to take advantage of the favorable caprices and partialities of testators toward yourselves— their confidential advisers — on whom a long series of valuable services may have conferred an ascendancy over your clients, very dangerous to per- Ante, p. ii6. Digitized by Microsoft® 264 Duties of Attorneys sons not of inflexible, unwavering honor and integrity. The influence thus acquired must be used firmly and virtuously, when no human eye, perhaps, can see you, but one already heavy and drooping beneath the shadows of death ! There will be fixed upon you, however, the eye of Him who seeth in secret, and shall rewatd you openly.' May you ever secure that sole guarantee for peace of mind, the testimony of a good conscience ! I know several instances of attorneys acting mag- nanimously and nobly on such occasions as I am speaking of One I became acquainted with very recently. Some little time ago, a gentleman in York- shire was so displeased by the marriage of his daugh- ter, an only chjld, that he totally disinherited her! leaving the whole of his fortune to his attorney and two other gentlemen, none of whom was related to or connected with him. What did this attorney ? As soon as he was aware of what the testator had done, which was not till after his death, the attorney called together his two co-legatees, and succeeded in prevail- ing upon them to give up their respective shares of the property ; the whole of which he forthwith settled securely on the testator's cruelly-injured daughter and her children. Now, was not this a noble and virtuous action ? Go you, my friends, and, should the occasion ever arise, do likewise ; shedding luster on the great profession to which you belong, and calling down upon you the blessing of the Lord, which maketh rich, and he addeth no sorrow with it. And as for your fellow-men, "when the ear hears you, then it will Digitized by Microsoft® AND Solicitors. 265 bless you ; and when the eye sees you, it will give witness to you, because you delivered the poor that cried, and the fatherless, and him that had none to help him. The blessing of him that was ready to perish will come upon you, and you will cause the widow's heart to sing for joy." * Such, gentlemen, is the best account I am able to present of the profession which you have entered — of the nature of the duties, moral, social, and profes- sional, which you have undertaken ; such are the sug- gestions which I offer, with a view to facilitating your discharge of those duties. It is honorable to under- take them in a proper temper and spirit ; but equally unprincipled, disgraceful, and dangerous to do so in- dolently or recklessly. If you steadily contemplate the profession and its requirements, the view must * In a notice of this concluding lecture, in, the Sun newspaper, this interesting incident was mentioned in terms of just eulogy, in a para- graph which soon afterward made its appearance in most of the news- papers, both in town and country. This occasioned many applications to the author of this work, by persons desirous of learning the name of the-gentleman referred to in the text. In consequence of one more urgent than the rest, the author wrote to the gentleman concerned (who lives not very far from Barnsley, in Yorkshire), but in reply, he de- clined to allow his name to be publicly mentioned ; modestly adding : "I do not wish my conduct, on the occasion in question, to be consid- ered so much to my credit, as it appears you have kindly held out ; for I assure you I know many men of our profession who would havp acted as I did, under like circumstances." He thgn gavf ^ very inter- esting account of the transaction in question, The hu§bai}d of the disr inherited lady was a military officer, and an amiable and honorable person. The property was, however, " not quite so large " as had been reported to thp author. In all other resppcts the acgp^nt givpn ii^ the text strictly accords with the facts. 23 Digitized by Microsoft® 266 Duties of Attorneys needs make you grave and earnest ; and if so, it will engender a humor which will greatly contribute to your success. Frivolity and self-sufficiency will dis- appear. They must, really, be rooted out of your composition, and supplanted by sobriety and modesty. Your responsibilities will be found too great to be compatible with your peace of mind, unless you re- solve early and firmly to act upon the principles which I have endeavored faithfully, however feebly, to in- culcate. You seek to occupy, or already occupy, a post which is very honorable, and confers considerable influence on him who occupies it worthily, even though he should obtain only a moderate share of success. While, on the one hand, you must avoid forming inflated notions of the importance and dignity of your position, take care, on the other, not to under-estimate them — ■_ especially with reference to that other walk of the profession, which we at the bar occupy. You, or your friends, have chosen one branch ; we, or our friends, another : both are equally honorable : each has its peculiar responsibilities : in many cases yours are far more arduous and trying than ours, though less conspicuously so. We are brother practitioners of the law, and both concerned in the administration of justice. And let me entreat you, gentlemen, never to suffer yourselves to be betrayed into the use of such idle expressions, emanating from a poor and vulgar spirit, as for instance, that you have entered the " humbler walk," the " inferior ranks " of the pro^ fession. Believe me, such language is unworthy of Digitized by Microsoft® AND Solicitors. 267 the spirit of gentlemen — highly derogatory to the dignity of your branch of the profession. It is such as never falls, except jocularly, from persons who think aright of themselves and their profession. Which of the two branches is "superior," and which "infe- rior" — which is the "higher," and which the "lower" walk, are questions which may safely be left to those, in either department of the law, who are weak enough to occupy themselves with such childish disputes. Be it our ambition, gentlemen, to magnify our office — by our CONDUCT — by our EXAMPLE. Gentlemen, I congratulate you on the establishment of that important institution, in the hall of which, sur- rounded by its leading members, I have had the honor of addressing you : for an honor I shall ever esteem it I can testify, from long personal observation, to the discretion with which the gentlemen, placed from time to time in authority here, discharge their responsi- ble duties. It is a great thing for you to have a cen- tral rallying point like this ; and I rejoice to see the energetic efforts which are now being made to effect that systematic organization and union of town and country attorneys and solicitors, which will be attended with the best results in advancing the true interests of the profession. Those efforts have been much too long delayed. Elements of great social and profes- sional power have hitherto lain scattered abroad over the kingdom, incapable of satisfactory action, because isolated. What results may they not achieve, when in complete combination ? One will be, a cordial, ener- getic unanimity : and what may not that effect ? Digitized by Microsoft® 268 Duties of Attorneys But my task is over. Never again shall I address you in this hall ; and I shall always reflect on my ex- ertions here with satisfaction, if I may cherish the hope that any one suggestion of mine had dropped into the fertile soil of an upright heart, a promising intellect ; that any such hint, whether of warning or encourage- ment, had been received in as kindly a spirit as it had been offered. Let me leave you, gentlemen, under a firm persua- sion of the vital stake which society at large has, in securing your efficient discharge of your duties. See what pains it has taken to do so ! What privileges and immunities has it given you to enable you to de- vote yourselves entirely to its interests ! The Legisla- ture has recently, at the instance of a firm friend of yours. Lord Langdale, anxiously revised all its enact- ments concerning you, repealing those which were injurious, and adding new ones for your protection and guidance ; but, at the same time, arming the judi- cial authorities, and also those of this institution, with fresh powers of supervision and control over your pro- fessional movements and conduct. You are subjected to a searching examination into your fitness ; you are most solemnly SWORN, as I have often reminded you, to the true and honest performance of your duties, to the best of your knowledge and ability. And that, moreover, in the exercise of a profession which, as our great commentator justly tells us, "employs in its theory the noblest faculties of the soul, and exerts, in its practice, the cardinal virtues of the heart." What can society do beyond this? Nothing, but punish Digitized by Microsoft® AND Solicitors. 269 severely any detected delinquency. For the rest, it depends upon yourselves — upon your own sense of duty toward God and man. It is in your power, alas ! after all, cruelly to deceive, and betray, and ruin, those who have trusted you with implicit, unbounded confi - dence. Ay, and you may even do this with impunity, but not with final, nor always even with prolonged, impunity. The day of reckoning often comes here, and much sooner than was expected. A fair outside may deceive the unsuspecting, till the fiat goes forth — God shall smite thee, thou whited wall: then it falls, blackened and blasted, disclosing the hideous corrup- tion that lay behind ! Gentlemen, it were unpardonable to deny that such instances now and then occur; and when they do, they shock and outrage public feeUng into a moment- ary forgetfulness of the comparative rarity of such occurrences. Oh, that they might never be seen at all ! And why should they ? I repeat an observation which I made at the close of my first lecture, that the attorneys and solicitors of the United Kingdom are a great and powerful body of men, whose conduct, as a body, is regulated by high honor, by incorruptible integrity ; and that, too, while surrounded by temptations, of the number and magnitude of which the world at large knows nothing. And let me, in taking leave of you, venture to express a hope that you, in your turn, have no reason to be ashamed of another great and powerful body — my brethren, YOUR Bar — the Bar of England, of Great Britain — that Bar of which I am proud to be a mem- 2.S* •^ Digitized by Microsoft® 270 Duties of Attorneys and Solicitors. ber! And with these expressions of cordial, but thoroughly independent respect — of mutual regard and good understanding — of TRUE BROTHERHOOD, I now bid you all, gentlemen, farewell ! Digitized by Microsoft® II^DEX. A. PAGE. ABBREVIATIONS, when used in drafts, etc., should be written distinctly 58 instances — "pit," "dft.," "dpt," ^g ABSTRACTS of title should be laid before counsel, 241 ^nger of attorney drawing his own conclusions from, 242 anecdote concerning, 242 ACCOUNTS, at banker's, attorney's and client's should be kept separate, . . . 246-248 loss of ;^5,3oo by an attorney, through not having done so 247 BOOK-KEEPING, etc, great importance of attorneys being early familiar with, 59-61 three-fourths of their practice concerned with, 59 inexpediency of devolving such duties on accountants, 59 ACCOUNT STATED, nature of; should be thoroughly understood, 172 practical hints and cautions concerning, 173 ACCURACY, early habits of, incalculably important to attorneys and solicitors, 95 anecdote concerning the want o^ 93 escape of fraudulent debtor to India through a clerk's omitting "s" in "sherifis," 96 ACTS of Parliament, important practical, attorneys should immediately become familiar with, 151 because suddenly and speedily consulted on them, 151 " A.D. 1834, " legally unintelligible, 138 a scene at chambers, 138 ADMISSIONS at judges' chambers, danger of making rashly, 175 so in correspondence, especially with opponent, 177 anecdote, 177 so in notices to produce, admit, etc, 177 entrapping opponent into, unworthy of gentlemen, 178 utility of admissions, in case of opponent's refusal to produce, 190 and of successful objection to stamp, 190 practical hint, 190 ADVICE OF COUNSEL, when no protection to client, 245, 246 AFFAIRS, professional and private, should always be kept in perfect order, 248 to prevent inconvenience and injury through unforeseen occurrences, death, etc., 248 disinclination to look into, a dangerous symptom, 249 Digitized by Microsoft® 272 Index, PAGE, AGE, of being articled, what most suitable, 70 AGENT, how he should write, sign, etc., to avoid incurring unintentional per- sonal liability, 209-212 important suggestions to attorneys and solidtors, 212 an instance of imprudent expressions, 210 ANALYTICAL Table of Rights, Injuries, Remedies, etc., 149 Forms, and utility of filling up, 14^ ANCIENT Documents, coming to trial with accurate copies of, igi ANSWERING letters promptly, great importance o^ 230 making a large fortune, attributed to, by an eminent practitioner, 230 dangers of procrastination, illustrated, 230 APOLOGIES, compromises, etc., practical cautions concerning offering, or accepting, 206, 207 ARBITRATOR, lay, referring to, deprecated, 214, 218 injurious to client, 215 blunders o^ in fact or law, not aided by the courts, 215 [See Reference.] ARBITRATORS and umpire, cumbrous and inconvenient practice, 218 practical hint concerning, zig ARREST, second, when not allowed, q6 grievous operation of, in case of carelessness — an instance, 95~97 prosecution, etc., danger of doing so rashly, 244 liability to action for malice, 244 cautions and su^estions to attorneys, 244 counsel's " Opinion, " when and how far a protection, 245 Capias for, under stat. i and 2 Vict. c. no, § 3, necessity of candor in framing affidavit to obtain, 246 rebuke of Tindal, C. J., for sttppressio veri in, 246 ARTICLED clerks, distinction between, and other clerks, 46-4S only two at once allowed to the same master, 72 duty of master to instruct, -, 48^ 151 [See Clerks, and Attorneys and Solicitors.] ARTICLES of clerkship, should be providently framed, 71, 72 copy o^ should be often referred to by clerk, .72 ATTORNEYS AND SOLICITORS, distinction between the two titles, 236 which the more ancient, 2,5 absurd preference, by some, of " Solicitor, " 216 rebuked by Lord Tenterden, _ 2^6 [See Solicitor], number o^ in the United Kingdom, ._ varied and arduous duties o^ j. Digitized by Microsoft® Index. 273 ATTORNEYS AND SOLICITORS iCaniinued)- page. all ranks interested in ability and integrity of; 14 paupers may command services of, gratuitously, 15 great power for good or evil, 16 sworn, in stringent terms, to do their duty, 17 necessarily intrusted with every kind of interests, 17 domestic secrets, 18 ax 223, 233 death-bed confidence 18 cases of calumny, crime, etc, ^ 18 concerned not only as friends, but opponents^ 19 their contract with society, 20 necessarily taken on trust, 20 otherwise wth the bar, 20 nature of their contract, and liow construed, 20 miserable and often irreparable consequences attending breach o^ si should not enter profession without great consideration, 21 evils of doing so, 22 erroneously attributing failure to "ill-luck," 23 in what spirit to enter profession, 23 not with low estimate of it, 24 should conceive distinctly what is meant by law, 24, 25 should watch practical operation of great principles, 30 attorneys act earliest in applying law to affairs of society, 35 give law its complexion, to the bulk of mankind, 35 their exhibition of it, may render it hateful or lovely, 35 responsibility as exponents of^ 35 should check vindictiveness and malice of clients, 36-41 Qught to be peacemakers, 38 see men in their real characters, 41 acquire necessary control over clients, by intimate knowledge of their afiairs, . 41 often must act on spur of the moment, 42 fill important public offices^ 42 extensive mischief resulting from incompetency, 43 as a body, distinguished by honor, integrity and ability, 43 c6nduct rarely questioned, in court, with success,.-..... 43 their welfare a matter of national concern, 44 peculiar obligation to cultivate piety and virtue, 45 duty to teach their clerks (j'. v.), 48, 73 can take only two, 72 profession really a learned one, 48 ancient statutes passed to secure skill and learning in, 48, 72, 121 dutira not mechanical, as represented by Blackstone and Kent, 120, lai critical exercise of discretion required, 122 caution against undue reliance on the assistance of counsel, 117, 128 attorney to form judgment of sufBciency of counsel, ^ 122 case in point. 123 skill and judgment requisite in preparing proper case- for counsel's opinion, . . 123 oflSces of counsel and attorney blended in America, '. . . 124 anomalous and unsatisfactory practice, " 125 Digitized by Microsoft® 274 Index. ATTORNEYS AND SOLICITORS {Coniinuea)— page. quite otherwise in this country, ^25 sense of personal responsibility to be cultivated, 127 difficulties never to be shunned, 127 nature of duties imposed on attorneys and solicitors, as laid down by Tindal, C J., - 129 attorneys should not devolve their duties on counsel, nor assume those of latter, 130 courts anxious to extend fair protection to attorneys, 130 judgment of Lord Mansfield, 131 courts now hold them to a high degree of professional knowledge, 131, 132 case of Stannard v. Ullithome, 132 actions against, for negligence, 132 often prompted by meanness and ingratitude of clients, 134 Russell V. Palmer — grievous case, 134 three thousand pounds damages received by client from his attorney, 135 Donaldson v. Haldane — important case, 135 gratuitous service no protection against consequence of negligence, 135 an anecdote, 135 practical precautions against client's ingratitude, 137 considerate and liberal treatment of a professional opponent, whom you are retained to sue, 138 instances of the contrary conduct, 13S exhortation against taking illiberal advantages, 139 commencing practice with moderate expectations, 141 confidence a plant of slow growth, 141 from what soil it springs, 142 showy and expensive starting, a millstone round the neck of the practitioner, 142 how to educate articled clerks, 151 training for coroners (y. v.), 153 fitter for the office than lajmien, 153 should study medical jurisprudence, crimina law and evidence 153 become familiar with municipal corporation law, 153 so with parliamentary law, 154 importance of doing so, 154 colonial and foreign law, 154 constitutional law, 155 sound acquaintance with it, now peculiarly necessary to lawyers and laymen, . . 155 lawyers should not be "given to change," 156 Hallam's ** Constitutional History, " igy its author a member of the bar, J57 and Sharon Turner a practicing attorney till his death, 157 a remonstrance against entertaining prejudices against literature and science, 157 the greatest living lawyers most distinguished in these matters, 158 professional interests, even, adi^nced by such acquirements, 158 entering into partnership (y. v.\ X59 series of practical suggestions to young practitioners, 16a duty to prevent litigation {^. v.), jga^ 163 Digitized by Microsoft® Index. 275 ATTORNEYS AND SOLICITORS {Contimiea)— page. commencing proceedings, caution concerning, 167 "begin nothing of which you have not well considered the end," 168 do not be unduly urged on by clients, 168 do not go on with actions sure of being ultimately referred, 168 caution before issuing writ, 168 what to do before, 168 personal inquiries of client, examination of papers, and interviews with wit- nesses, 168 opinion taken early, on a fairly stated case, 169 particulars of demand {q. v.), caution in framing, i6g, 170 payment into court (y. v.), 171 account stated (?.».)> 172 adding " Similiter" — a caution, 173 replying "£>e Injuria" — a caution, 173 discretion and vigilance requisite in attending at judges' chambers, 173 terms of obtaining time to plead, should be well considered before accepting, 174 or important advantages may be surrendered,, 174 caution, when defendant is an executor, 174 ^drawing briefs (^. v.), ,., ..-,-.., ir --.-•■ >^8 providing faithful and well-executed models, plans, etc., 181 0ver--prove rather than under-prove cases, 181 ill-judged economy of niggard proofj 182 how to deal with witnesses, 182-186 marshaling proofs in brie^ 186 give sufficient notices to produce and suhpcenas duces tecum, 186 should anticipate refusal to produce, and consider its effect, 186 see to erasures, interlineations, alterations, in own and opponents' docu- ments, 187, 200 early consultation, why advisable, 188 be prepared vnth copies of ancient deeds for judge and jury, 191 jury panel should be examined to get rid of obnoxious jurymen 192 select your own counsel, 19S you being answerable for conduct of cause, 195 often unduly importuned, 195 when attorneys and solicitors_^«(:/z officio^ 196 success or failure principally dependent on them, 196 duty does not end with verdict, 196 should secure client the fruits of it, 196 vigilant attention to defendant's circumstances and doings, 197 being prepared with affidavit for immediate execution, 197 do not take down to trial issues in fact, while issues in law are pending, 197 do not force on a reluctant plaintiff 197 almost invariable ill effect of doing so, 198 rebuke of Lord Tenterden, 198 when justifiable to take technical advantages, 198 promptitude in laying pleadings before counsel, advantages o^ 199 getting up pedigree cases (q. v.) 200 Digitized by Microsoft® 2^6 Index. "'^^^SE^iiS^^^ .. -C^ ATTORNEYS. AND SOLICITORS {Continued)— page. original documents to be carefully kept at the office, and only copies sent to counsel, ^°4 compromises, apologies, etc. , caution in making, aos taking written retainers, 208 personal communication with client as cau^e goes on, 209 inform him of offers from opponent, new steps, new expenses, etc., 209 undertakings on behalf of clients, caution in entering into, 209 unnecessarily including documents in notice to produce, admit, etc, 212 exposing client's case to opponent, ^ 212 being sanguine with clients, evils of, 213 reference to arbitration, — -- 214 [See Reference.] suggestion of attorneys when arbitrators, 220-222 suggestion of attorneys when advocates, 222 acquiring the art of public speaking, 226 attending debating societies, suggestions concerning {q. v.), 227 attending county courts, recommended, 227 answering letters promptly, 229 fcsficnfts (y^^.yiabeDreservej^ payment of counsel's Res, . persoftal attention to clients, 238 should see whether their statements are true, 238 danger of relying on such statements, » 239 slovenly habits of business to be eschewed, 240 conveyancing business, 240 how to deal with abstracts, =41 equity proceedings — a hint concerning, 242, 243 caution against malicious arrests and prosecutions, 244 should not act rashly, 244 taking counsel's opinion, how far a protection, 245 should never mingle moneys, with those of client's, at banker's, 246 disastrous case in point, 246 should have affairs always in good order, to provide against accident, sudden death, etc., 248 rigorous good faith required in dealings respecting client's property, 249 sensitive jealousy of courts respecting, 249 should not make haste to be rich 250 speculation to be eschewed, 251 intrusted with consciences {q, v.) of clients, 42, 251 swearing oaths {q. v.) affidavits, etc, 252 preparing wills (y. v\ 256 deciding on testator' £ mental competency, a critical duty, 257 cautions and suggestions, , 257, 258 survey of duties, calculated to render grave, anxious, distrustful, 266 importance of Law Institution, 267 advantages of union between London and country practitioners, 267 recent legislative revision of the laws affecting attorneys and solicitors, 268 great efforts by Law Society to secure efficiency of attorneys and solidtors,. . . a68 Digitized by Microsoft® Index. 277 ATTORNEYS AND SOLICITORS (CW««rf)- ,Xck pnvDeges and immunities conferred on them, ^68 noble nature of the profession in which they are engaged, 268 and which they practice under pressure of an oath, 268 may yet cruelly betray trust, ^5 but not with ultimate unpunity, ^g comparative rarity of professional delinquency, 269 brotherhood between all the members of the legal profession, 270 AUTHORITY and liberty, constant straggle between, in civil society, 26 how harmonized so as to produce civil liberty, 25 an instructive passage from Bishop Butler, 27 distinction between "license " and "liberty," 27 operation of these forces in formation and practical working of laws, . . .30-32, 35 of attorneys and counsel to appear, open default, etc, etc 132 necessary to be kept in view by intelligent or scientific practitioner, 35 lends interest to and illustrates details, 35 AWARD, when made by attorney-arbitrators, form of, should be settled by counsel in difficult cases, 219 B. BACON, Lord, his dicium, that every man owes a debt to his profession, 14 BALANCE, caution concerning limiting demand to, in particulars, 170 BANKING accounts, how to deal with, in particulars of demand, 170 sometimes prudent to set out debit side only, 170 of attorneys and their clients, should be kept separate, 246 BARRISTERS, relation between, and attorneys and solicitors, 80 should be characterized by reciprocal respect and independence, 80 undue professional intimacy discountenanced, 81 idle squabbles as to superiority of rank, 266 articled clerk studying in chambers ofj 107 advantages and responsibility of doing so, 107, 108 oath required as to 6ona fide attendance, 107 BAYLEY, B., the late, on attorney's duty to lay abstracts of title before counsel, 242 danger of drawing his own conclusions, 242 on the nature of protection against actions for malicious arrests, etc., affording by having taken counsel's opinion, 245 "BEGIN nothing of which you have not well considered the end." 168 BILL, attorney's, too often obliterates client's recollection of services, 137 BILLS, Byles on, his treatise recommended, 105 BISHOPS liable to legal proceedings like others, 16 recent instances ofi 16 24 Digitized by Microsoft® 278 Index. PAGE. BLACKSTONE, his slighting aUusions to attorneys, rio example apparently followed by Chancellor Kent in America, 120 beautiful observation on the nature of the profession of the law, 267 BLANKS left in briefs, slovenly and inconvenient practice, 179 "BLESSED are the peacemakers," 38 BOOK-KEEPING, merchants* accounts, etc., early and thorough knowledge of, essential to skillful practitioners, S9»"6' BRIEFS, how they should be drawn, 178 terse, succinct, and in temperate language, 178 superior ability requisite for framing them, in scientific cases, 66-68 pleadings to be given fully and very accurately, 176 often dangerous to profess to give only their substance, and effec^ 178 should not be delivered to counsel late, orwith blanks, etc., 178 when several, should be paged uniformly, 178 prefixing analysis, and correct reference to proofs, etc, 180 often advisable to insert counsel's opinion on which case proceeds, 180 sketches, plans and models, when should accompany, 180 should be well executed and faithful, 180 marshaling proofs in, 186 BUTLER, Bishop, his admirable explanation of the nature of dvil liberty, 27 peculiarly worthy of study in these times 27 Charles, an eminent conveyancer, makes a disastrous mistake in drawing a will, 97 BYLES on bills, the treatise recommended, 105 c. CAMBRIDGE and other universities, attorneys* study at, allowance made for in service of articles, 68 CASE for opinion, how itrshould be drawn up, 169 with care and candor, i5g CHAMBERS; judges', attendance at, 173 great necessity for vigilance and discretion there, So, 173 scrupulous respect toward the judges, , _ , go "CHARITY hopeth all things," 37 CHARTISTS, defeat of their absurd but wicked attempt to introduce revolution and anarchy, (note) 29 CHEAP law, Tindal, C. J., on the evils of, ^ CHOICE of master, requires much consideration, .i Digitized by Microsoft® Index. 270 PAGB CIVIL bTierty, in what it consists, 26 often misunderstood, 26 admirably explained by Bishop Butler, 27 contradistinguished to licentiousness, 27 how it practically exhibits itself and acts, 27 CLERK, meaning of the word, aj attorneys' articled, 48 to all intents and purposes a student, 48, go danger of his forming low estimate of position and duties, 47 liable to act up to low standard only, 47 qualities to be looked for in the future clerk, 50 indication of mental and moral unfitness 51 education, preliminary, oi, 51 should be sound and liberal, 51 necessity for, illustrated, 52 scientific knowledge, elements o^ should be acquired, 54, 61-63 English language in its purity, 54 style of composition, 55 Latin and French, 55 old style of writing abbreviations, etc., in ancient documents, 55 Wright's "Court- Hand Restored" recommended 55 handwriting, should be neat and distinct, 56 necessity of acquiring, illustrated, 56-58 short-hand, utility of, 58 accounts, book-keeping, 59 early and ready knowledge of, essential, 59-61 elements of mathematical knowledge, 61 patent and copyright cases, 63, 64 a case of spirits of wine, ^ 64 logic, why, and how far, necessary, 65 studying at universities, allowance for, 68 advantage o^ with a caution, - 70 at what age to be articled, 70 dioice of master, 71 care in preparing articles, 72 too often fi-amed improvidently, 7^ a suggestion to parents, relatives, and friends, 73 spirit in which to commence clerkship, 74 should from first bear in mind the oath to be taken on commencing practice, 74, 90 examination, also, to be kept in view, 74 prepare for occasions sudden, in the emergencies of practice, 74 how to acquire just self-reliance, 74 " drudgery, " absurd notions concerning, to be discountenanced, 75 example of Sir Astley Cooper, 75 practice makes perfect, 75 learn to sustain responsibility, _• 75~89 cultivate constant wgilance, - - ■- 75 Digitized by Microsoft® 280 IND-EX. CLERK {Continued)— ^^^"^ importance of gaining good opinion of master, 7" should never forget that they are gentlemen, 77~^ avoid flippancy, 77 "honor all men," 7o keep a constant watch on temper, 7^ never use profane or vulgar language, 79 grave and courteous demeanor and manners to be cultivated, 79 frivolity to be avoided, 8o respectful conduct in attending judges at chambers, or elsewhere, 8o intercourse with members of the bar, So principles regulating, , So undue intimacy to be discountenanced, 8: truth and honor to be observed on all occasions whatever, S: other people's interests to be intrusted to the attorney, 8: never speak at hap-hazard, regard truth in the veriest trifles, perilous consequence of not doing so, 8: oath may come to be distrusted, 82 pledge not an oath inconsiderately, 82 awful nature of an oath, 82 keep secret what occurs in the office, 82 interests of great magnitude may be periled by thoughtless gossiping, 83 an anecdote, 83, B4 exactitude in money matters, 85 prudence and economy, 83 economize time, 86 be punctual in keeping appointments 87 never do any thing in a hurry, 87 what hurry is, 87 not haste 87 anecdote, 88 concentrate attention on whatever is to be don^ 88 attend courts, judges, and consultations, in an attentive frame of mind, 88 country clerks coming up to London, 80 dangers of debauchery, gq an earnest caution concerning, ,_ qq the oath on commencing practice, oj its solemnity and stringency, oj q^ not taken by the bar, _j how to study the profession, o, first year of articles, thoughtfully watching routine business, 04 necessity of early acquiring habits of accuracy, 05-00 an anecdote, ^^_^g consequence of omitting one letter of a word, q5 disastrous blunder of an eminent conveyancer, q- how to make ordinary business grow interesting, qq by always referring to reasons and principles, qq Digitized by Microsoft® Index. 281 CXERK {Continued)— p^^,^ youthful clerks not to be overburdened with reading, 99 English history, how useful, 100 J. W. Smith's '* Elementary View of an Action " recommended, 100 law of contracts and property, loi " Lectxu-es on Contracts, " by J. W. Smith, loi instructive specimen of his mode of treating the subject^ loi loa "Treatise on Real and Personal Property," by Joshua Williams, recom- mended,, . .. 102 Davidson's " Concise Precedents in conveyancing " recommended, . . .. ... 103 " Byles on Bills, " 105 Smith's " Mercantile Law, ".... 105 wide field of knowledge to be occupied by the London practitioner, 106 studying in chambers of barrister, pleader, and conveyancer, great advantage of, 106 oath as to bona fide study and attendance, 107 terms of it should be well considered before such study and attendance begin, joB lectures and library at the Law Institution, 108 excellence of the stated lecturers, 109 examination to be undergone at the Law Institution, 74 salutary eflfects of it, no responsible position of the examiners, no scope of examination, in a leal examination, in danger and folly of "cramming" for it, in necessity of continuing studies after examination passed, 112, 143 obligation to do so, virtually imposed by oath, 112 danger to both clients and pracdtioners, of remitted studies of latter, 112 spedmeDS of sudden exigencies, '14 becoming practitioners, reflections concerning, 117, 145 opportunities, qualifying to take advantage o^ 145 anecdote, 146 prudence of becoming a managing clerk, ., 147 connectioD, frequently delusive prospect of, 148 how to employ leisure, 148 in scientific study of profession, ..,; - 149 a practical suggestion, i49 analytical table, etc., 149 how to fill up, and with what view, ^ 149 Smith's "Leading Cases," 150 Broom's " Maxims," ^cso early and close attention to heads of law likely to be suddenly required in practice, ^5°. iSi so of new statutes, ^S^ [See Attorney and Solicitor.] CLIENTS, eager, malicious, vindictive, to be temperately, but resolutely checked by conscientious practitioner, - 38, 168 frequent ingratitude and perfidy 0^ i37 scientific, require superior qualifications in their professional advisers, 5a 24* Digitized by Microsoft® 282 INDEX. CLIENTS {Continited)— page. an instance, S3 intrust their consciences to their advisers, A^ ^5^ influence over, obtained by attorneys, to be used with honor and integrity, ... 41 attorneys should not express themselves sanguinely before, 213 COLERIDGE, H. N., a lecturer at the Law Institutibn, 109 COLONIAL law, 154 COMMENCING proceedings, "look before you leap," anticipate possible failure, 167 COMMITMENTS and convictions, accuracy required in framing, 33 as a great safeguard of liberty, - 33 COMMON or special jury, consideration required in determining upon, 194 an anecdote of a common jury, 195 COMPETENCY, mental, of testator, critical duty of the attorney and solidtor in determining, 257 practical suggestions, 257 inferences to be sometimes drawn from nature of proposed will, 259 COMPROMISES and apologies, a caution concerning making or accepting them, 205 CONFIDENCE, of clients, a plant that cannot be forced, 142 CONNECTION, often delusive prospects o^ 148 CONSCIENCES of clients often in professional adviser*s custody, 42, 250 oaths in support of their own rights and interests, 252 serious responsibility of the practitioner, 251 a cardinal rule proposed, 252 unjustifiable multiplicity of oaths in the English legal system, 253 an earnest caution to practitioners 256 CONSCIENCE, a case ofi in respect of the stamp laws, 109 CONSTITUTIONAL law, necessity of being acquainted with, 155 CONSULTATION, early, why recommended, 188 CONTINENT of Europe, inhabitants o^ their convulsed condition, 28 envy the stability and freedom of English institutions, 28 CONTRACT, law of, early attention to, requisite, 101 lectures of J. W, Smith upon, ^q^ CONTRACT of attorneys and solicitors, on becoming such, with society, 20 sternly construed by the law. 21 an incentive to the strict observance o^ _ ^ 21 CONVERSATIONS, in proof of witnesses speaking to, how to be given,.... 184 in the exact words and first person of speaker, jO- Digitized by Microsoft® Index. 283 CONVEYANCING business, great care it requires, o 240 serious case of negligence, 2 . ^ attorney draws legal conclusions from conveyances, at his peril, 241 abstracts should be laid entire before counsel 241 great value of Sugden's "Vendors and Purchasers," 240 CONVICTIONS, 33 [See Commitments.] COOPER, Sir Astley, his remarks concerning "drudgery," 75 COPYING and articled clerks, distinction between, 48, 74 CORONERS, why attorneys better than medical or other laymen, 153 a hint, 153 CORRESPONDENCE of attorneys and solicitors, great caution required in con- v^\ "^ ducting jA..-i.>.A»....t .1 .-...,j.t a*.. 177 hasty, but fatal admissions, in, 177 is often brought before the courts and public, 55 propriety of cultivating elegance and accuracy of style, 55 COSTS, bill o^ its effect on clients* recollection of services rendered, 137 a hint concerning, jgg sudden accumulation ofi obstructs compromises, 207 COUNSEL, proper use to be made of their assistance, 117 attorney to form judgment as to the correctness of their advice, 122 and attorneys, offices of, blended in America, 125 choice of, attorney entitled to, 195 fee of) a debt of honor, 235 l^i^opinirfh^when a protection to client^ 24^ COUNTY Courts, young attorneys urged to attend, 227 smallness of fees no adequate reason for neglecting interests of humble suitors, 22S nice and difficult questions of law and fact often discussed there, 228 afford opportunities for acquiring knowledge of law, 22S COURTEOUS demeanor and manners to be cultivated, 79 COURTING attorneys and solicitors, they should indignantly discountenance, ... So "COURT-HAND," Wright's, recommended, 5S "CRAMMING," for examination, fraud, folly, and danger o^ iix CRASSA Negligentia^ what amounts to, 131-136 D. DAVIDSON'S " Condse Precedents in Conveyancing " recommended, loij DEAD dient cannot hear that his will is waste paper, 31 Digitized by Microsoft® 284 Index. PAGE. DEBATING societies, useful if well conducted, "7 a caution concerning, ^^7 DEBAUCHERY, an earnest caution against, 89 DECLARATIONS, substituted by the legislature for oaths in many cases, 254 highly advisable to go further in that direction, 254 "DEFT.," "dept," "pit," — danger of confoundin& in illegible writing, 58 "DE INJURIA," replication of, caution against using hastily, 173 DEMURRER, general or special, when, J99 illiberal in case of mere technical errors, 138 ^_^ DIFFICULTY, not to be devolved on counsel as a matter of course, 127 i[/\ *atjarney and solicitor should first wrestle with, themselves, 127 DISCRETION, arbitrary, objects of laws to limit, 23 that of attprneys often very responsible and arduous, 122 DISPARAGING professional brethren, caution against, instances of ill effects o^ 233 DISTRIBUTIONS, statute o^ requisite for attorneys and solidtors to be familiar with, ir6 DITCH, and barrel drain, an incident, 163 DOCUMENTS, original, never to lie about the office, or be sent to counsePs chambers, 204 unless for some special reason, 205 instances of danger of doing so, 205 ^ » ^ ancient, should be carefully copied for use of judge and jury at trial, .„ igj " how to verify, T 192 and conduct searches for, 1^2 a stimulus to circumspection, 192 ' DRUDGERY, " a word to be eschewed, . 75 catchword of flighty fools, , 75 saying of Sir Astley Cooper, . . — y^ DUBLI N University, allowance of time for study at, to articled clerks, 68 " DULL cold ear of death," . — 21 DURHAM University, allowance of time for study at, to articled clerks, 69 E. •'EASY LESSONS in Reasoning," by Archbishop Whately, recommended to articled clerks, i. g- ECONOMY, honorable, habits of, to be cultivated, _ 85 ' Digitized by Microsoft® Index. 28s PAGE. EDUCATION of Attorneys and solicitors, 51 diversified requirements of their profession, 52 modem Polities for, ..* 54 elevated standard of general education, 54 attorneys' clerks', should be solid and practical, 51 languages, English, French and Latin, 54, 55 handwriting short-hand, accounts and book-keeping, 56-62 elements of mathematics and logic, 62-66 University, anxiety of legblature to encourage resort of young professional men to, 68-70 ELDON, Lord, his weighty words on partnership, 160 on the good faith to be observed by attorneys and solicitors toward their clientsi, 250 ENGLISH History, utility o^ to law students, xoo ENTRAPPING opponents into admissions, meanness o^ 178 EQUITY, or Law — in which department to commence proceedings in important cases, 243 a practical suggestion, 243 ERASURES, interlineations, etc., in own, or opponent's documents, to be seen to in time, 187, 200 their effect on suflficiency of stamp, 187 EXAMINATION of articled derks, 74. iio should be kept in view from time of commencing clerkship, no will be found a real one, m scope of it, m responsibility of examiners, iio danger of "cramming" for, m rejection should be only a stimulus to increased exertion, 143 master should prepare his clerk for, 151 EXECUTION, immediate, coming prepared with affidavit to obtain, 197 EXECUTORS, and trustees, attorneys and solicitors, confidence reposed in, as, 41 defendants, what terms to be imposed on, when asking for time to plead, 174 EXTRAVAGANCE, ruinous tendency of indulging in, 86 F. FAMILY, repute and conduct, importance of inquiring into, in getting up pedigree 20X FEES of counsel, why to be regarded as a debt of honor, 235 should never be long in arrear, =35 Digitized by Microsoft® 286 Index, PAGB. FIGURES, necessity of attorneys and solicitors being expert at, 59. 6i weapons of skiUful fraud, 59 FINCH, Sir Henry, a saying o^ 52 FLIPPANCY, odious, and intolerable, 77 ■what its opposite, 78 how to avoid it, 78 FORCING on a reluctant plaintiff danger o:^ 197 censure of the practice, by Lord Tenterden, 198 FOREIGN and colonial law, necessity of some acquaintance with, 154 " FOREWARNED, forearmed," 137 FRIVOLITY to be avoided in professional men, 79 all appearance o^ guarded agains^ 79 FRAUDS, attorney compelled to pay, though agreement void by statute o^ 211 G. GENTLEMAN, articled clerk bound always to sustain the character and man- ners qf, 77j 90 necessary for professional and social intercoiuBe, 77 *' GOD shall smite thee, thou whited wall I" ■ 269 GOVERNMENT, civil, what constitutes, 26 GRATUITOUS professional services, entail full liability for negligence . 136 GUARANTEES, void, permitting clients to act on, 114 GUTTER, story of a, 164-166 what it might have led to, 166 H. HALLAM'S Histories, to be carefully studied, 157 author, a member of the bar, 157 HAMILTON, Dr., a quaint remark of, concerning forgotten professional services, 137 HANDWRITING, attention should be paid to, 56, 57 inconveniences and dangers attending bad, 57 58 HASTE, and hurry, very distinct, g^ making, to be rich, injurious to those attempting it, 250 HEARSAY evidence in pedigree cases, practical remarks concerning, aoi * HE who is his own lawyer has a fool for his client," ug Digitized by Microsoft® Index. 287 PAGE. "HIGHER " and " Lower" walks of profession, expressions to be deprecated, 265 HISTORY of England, to be studied by lawyer^ 100 "HONOR all men," 78 HURRY, distinct from haste, 87 condition of — "inferior mind in haste," ._... 87 expensive, 88 anecdotes concerning, 88, 139 I. ILLEGIBLE handwriting inconvenience and dangers o^ 5^58 ILLEGITIMATE connection of family, why his or her dedaration inadmissible in pedigree cases^ 200 ILL luck, foolishly attributing one's failure to, 23 IMPUNITY for misconduct, not always long, and never final, 269 INFLATED notions of professional status to be avoided, 19 INFLUENCE conferred by legal profession on its members, 41 tmdue, sought to be exercised over testator, duty of attorney and solicitor to prevent, 260 INGRATITUDE of clients too often to be reckoned on, 137 a quaint remark of Dr. Hamilton on, 137 practical precautions against; 137 securing concmrent evidence of services, 137 no justification for breach of confidence, 231 INSTITUTIONS, political, in England, more highly valued than ever, why, ... 28 INSTRUCTIONS for taking wills, most important duty, 261 should be always, when practicable, taken personally from testator, 261 practical suggestions of Mr. Jarman, 262 INTERLINEATIONS, erasures, etc., in own and opponent's documents, to be seen to in time, 187, 200 INTERNA fum curat pr^ior, 34 IRREVERENT language, 79 ISSUES in fact, not to be taken down to trial while issues in law pending, 197 except under special circumstances, ^97 J- JARMAN, Mr., his "Suggestions to Persons taking Instructions for Wills,"... 261 JENNY LIND, successful action against, 17 Digitized by Microsoft® 288 Index. PAGE. JUDGES, frivolous actions against, - - ^^ treatment of^ by professional men in conducting business before, So cautions, °^ chambers, necessity of vigilance and discretion at, i73» ^7^ sending inefficient persons there, 176 JURISPRUDENCE, progress of; beautifully described by Sir J. Mackintosh, . . 25 JURY panel, always to be seen to before jury sworn, 192 an instance of the necessity of it, 193 common or special, when to have, 195 an anecdote, 195 JUSTICE, administration o^ lawyers always to remember that they are con- cerned in, 167 and should strive to obtain it by only fair means, 167 K. KEIGHTLEY'S '' History of England " recommended, 100 KENT, Chancellor, the late, of America, on the folly of laymen conducting their own cases, 118 his inadequate views of the position and practice of attorneys, 120 yet in some measure follows Blackstone, 120 L. LANGDALE, Lord, superintends revision of law affecting attorneys and solicitors, 268 LAW, what signified by the word, 25 its actual operation, 30-35 how it attains its objects, ■ 30 necessarily complicated in free country, 31 otherwise in despotic states, '. 31 a great system of check and counter-check, 32 who its exponents, 35 they give law its hue and aspect to the multitude, 35 can make it lovely or hateful, 35 may be made too cheap 40, 41 not to be made subservient to malice, trickery, or tyranny, 38 yet may be so, under plausible pretexts, 40 true and grand objects should always be kept in view,, 24, 40, i6i appears a noble, symmetrical system to the intelligent and thoughtful, 24 to others, a shapeless mass of arbitrary rules, 23 and equity form only one system, 243 object, to advance dominion of reason and justice, 25 Digitized by Microsoft® Index. 289 LAW {Coniinued)^ p^^e. Institution, importance and utility o^ 267 responsible duties of its members, no LAYMEN, causes ought not to be referred to, why, 214-218 [See Reference.] folly of being their own lawyers, nS "LEADING cases," by John W. Smith, recommended, 150 LECTURES, at the Law Institution, 108 doubts as to utility of^ for students for the bar, 109 but works of Blackstone, Kent, Sullivan, Woodeson, and others, point the other way, loi scientifi(^ utility of attending, 62^ 63 LEGACY, large, left to an attorney by his client 264 noble surrender of it, 265 LETTERS, promptness in answering 229 instances of benefit 223 danger of delay, 230 LIABILITY o^ for negligence, 132 LIBERTY and authority, antagonistic forces, 26 [See Civil Liberty.] LICENTIOUSNESS, contradistinguished to liberty, 27 LIEN, benefit o^ easily lost by client, through his attorney's ignorance of law, governing, 113 often called suddenly into action, 114 LIND, Jenny, successful action against her, 17 LITERATURE and science, vulgar caliunnies and prejudices against, . - 158 refuted by splendid living examples, 158 LITIGATION, only a portion of the occupation of attorneys and solicitor, 162 their duty not to foment^ but check it, 38 two anecdotes^ 163, 165 often springs from uncontrollable obstinacy and passion of clients, 166 when inevitable, to be conducted in a fair and gentlemanly spirit by profes- sional men, 167 eschewing eager rivalry, 167 Quicquid delirant Reges^ etc, 167 to be remembered, that the object is to obtain justice, 167 commencing, caution required, 167 begm nothing, etc., ^^8 LITTLEDALE, J., his technical strictness, 13? LOGIC, advantage of some early knowledge o^ - 6§ 25 Digitized by Microsoft® 290 Index. PAGE. LONDON, University of; allowance of rime to articled dcrks for study at, 69 country clerks coming up to, cautions to, o9 practitioner, wide scope of his duties, ^°° LORD CHANCELLORS, have actions brought against them, 16 LOSS of documents, through lying about, and being sent to counsel's chambers, 204 20s M. MACKINTOSH, Sir James, quoted, on the progress of jurisprudence, 25 MALICIOUS prosecution, when advice of counsel will not protect a party, 245 MAGNIFYING one's office, how, 24, 266 MANAGING clerks, 147 MANSFIELD, Lord, on the rights and duties of attorneys, 131 MAUGHAM'S "Examination Questions," 151 useful to masters in teachine; clerks, 152 MEDICAL Jurisprudence, why principally to be studied, 153 men, less fit than attorneys for coroners. 153 a hint, 153 MERCANTILE law, J. W. Smith's Treatise on, 105 MILTON, quoted, 28 MISER A est Seruiius, uhi Jus vagum aut inceriuTti^ 34 MISSING bill of exchange for ;C70o, 205 MODELS, sketches, plans, should he as faithtiil as possible, i8o MONEY matters, economy and caution in all matters relating to, 83 of clients, never to be mingled by attorneys with their own 246 a disastrous case in point, 246 MORAL duties of attorneys and solicitors, 36 MUNICIPAL corporation law, advantages of being early familiar with, 153, 154 N. NEGLIGENCE, attorneys sued for, 133-13S, 235, 236 verdict against, for ;^2,ooo, and ^3,000, i« ineffectual struggles of counsel, i^^^ i^S hijjh degree of attention and knowledge required to be possessed by attorneys and solicitors, i,- gratuitousness of service, no protection from coiisequeuces of negligence, .... 1^6 Digitized by Microsoft® Index. 291 PAGE. NEMO eUbet bis vexari pro eadeTft Causa, g5 NEWBURGH, Lord, disastrous blunder by a late distinguished conveyancer, in drawing the will o^ c)/ " NO one should be condemned unheard, " practical operation of the maxim, 33 NOTICES to admit and produce, should be framed cautiously, to avoid admis- sions, , ^ lyy instances of carelessness, and its effect 175 to produce— refusal to do so should be anticipated, and provided against, 186 legal eflFect of such refusal, only to let in secondary evidence, 186 prejudicial effect on jury, of refusal without sufficient reason, 187 caution against unnecessary insertion of docimients in, 212 exposing client's case to opponent, 217 o. OATH required of attorneys and solicitors before they are permitted to prac- tice, 91, IT2 referring to, and its stringency commented on, 17, 68, 74, 90^ n2, 128, 132, 230, 268 required as to bona Jides of study and attendance in chambers of barristers and pleaders, 107 which ought to be borne in mind beforehand, 107 so, of service under articles, 72 awful nature of an oath, * 82, 253 unjustifiable multiplicity of oaths in transacting legal business, 25 . "Declarations, " with penalties for falsehood, substituted recently in many cases, 254 ought to be extended much further, 254 solemnity of administering oath to witnesses in Scotland, 253 duty of practitioner while required to take or assist in administering oaths on such trifling occasions, 256 OCCASIONS, sudden, practitioner to prepare for, 74, 113 the advice of Lord Coke, 74 OPINION of counsel on merits of case, to be taken early, 169 before incurring expenses, 169 how case for, to be stated, 170 on merits, or evidence, often iiseful to state in brief for guidance of counsel, .. 180 when a protection against actions for malicious arrest and prosecution, 246 essential that case be fairly stated, 246 when acting under, no protection against a charge of negligence or unskillful- ness, 131 OPPORTUNITIES, sudden, practitioner should stand prepared to take advan- tage o^ 145 two anecdotes, ^47. 148 mortification of being unable to do so, 146 Digitized by Microsoft® 292 Index. PAGE. ORIGINAL documents, danger of losing them, 204» 2o5 should never be sent with papers to chambers of pleader or counsel, 204 loss thereby of bill of exchange for ;^7oo, 204 OVER-PROVE, rather than under-prove, cases, 181 OVERSEERS, old inmates of almshouses, work-houses, etc, often valuable, but unthought o^ witnesses in pedigree cases, 202, 203 OXFORD University, allowance of time to clerks for graduating at, 68, 69 p. PAGING of briefs, when several, should be uniform, 179 PARISH clerks, constables, overseers, inmates of almshouses and work-houses, when old, often valuable but unsuspected depositaries of pedigree evidence, 202 PARLIAMENTARY law, 154 PAROL evidence, inadmissible to aid blunders in legal and other instruments^ when, 98 rejected, to explain acknowledged error in the will of Lord Newburgh, 98 loss of ;£i4,ooo a year thereby to his devisee, 97 a startling incentive to care and accuracy, 98 PARTICULARS of demand and set-ofl^ caution required in flaming 170 giving credit rashly for payments, 170 instance o^ 170 speaking of balance, 170 setting out only debit side of account, often advisable, and why, 170 PARTNERSHIPS between attorneys and solicitors, 159 great caution required on forming, 160 weighty words of Lord Eldon, 160 essential conditions and qualifications for prosperous professional partnerships, 161 perfect good understanding between members peculiarly necessary, 161 tripartite division of law favorable to prudent partnerships, 161 necessity of ascertaining the professional qualification of a proposed partner, i6z PAUPER, can command gratuitous service of barristers and attorneys, 15 most cheerfully rendered, •. 15 PAYMENT and set-ofl^ distinction between, 170 into court, effect as an admission, 171 instances, 171 slight effect, as admission, in indebitatus counts, 170 amount to be paid in with a liberal hand, to insure safety, 172 PEACEMAKERS, duty of lawyers to be, ." 38 Digitized by Microsoft® Index. 293 PAGE. PEDIGREE cases, how to get up, 200 should, at starting, look over law applicable to, 200 collecting mere rubbish for want o^ 200 neglecting precious evidence, 200 hearsay evidence, how far and why admissible, 200 from what speakers, 200 illegitimate persons' declarations rejected, 201 hearsay on hearsay admissible, 201 general family repute and conduct receivable, 201, 203 relationship of speaker to be first established by independent evidence^ 201 necessity of this rule, 201 exact degree of relationship immaterial, 302 slight evidence of^ sufficient, 202 practical suggestions for conducting search after this kind of evidence, 202 to what points evidence should be guided, 203 cogent presumptions derivable from silence, 204 old parish clerks, sextons, constables, overseers, and inmates of almshouses and work-houses, often valuable, but unthought o^ witnesses, 202 PERSONAL examination of proposed witnesses, i68 communication with client during progress ot cause, 209 apprising him of offers, fresh expenses, etc., 209 liability, unintentionally incurred, how to avoid, 209-211 attention to clients' cases, 238 qualifications of new partner introduced into professional firm, 162 property, law of, to be assiduously studied, 103 elementary work on, recommended, r. 102 PETTIFOGGERS, clients to be protected from, by respectable practitioners, ... 42 but latter must know the law as well as, or better than, pettifoggers, 42, 43 otherwise mortifying and injurious, 43 some specimens ot their doings, 137-139 PHILOSOPHICAL knowledge, some, necessary to lawyers, 52-54 why, to what extent, and instances, 52-54 PIETY and virtue, only foundations of strength and elevation of character, 45 PLANS, models, sketches of localities, for trial of causes, shotdd be faithful, 181 PLEADERS' chambers, articled clerks studying in, 107, 108 oath required concerning, 107 PLEADINGS in briefs should not be epitomized, but given fully and accurately, 178 exact words of them often requisite, 178 an instance, ^78 should be laid as soon as possible before counsel, after delivery from opponent, igg "PLT. " "Dfi," "Dpt," — abbreviations should be, when used, written dis- tinctly, 58 othervrise greatly harass and mislead counsel, 58 25* Digitized by Microsoft® 294 Index. #AGB. POOR persons entitled to counsel, 14 "PRACTICE makes perfect, " encouraging remark of Sir Astlcy Cooper, 75 PRINCIPLES, legal, should never be lost sight of in deaUng with details, - . . 30, 31 otherwise study and practice of law deteriorate, 32 the law appears a mere mass of arbitrary rules, 33 PRIVILEGES, .-. 231 PROCEEDING against attorney for money collected, 44 PROCRASTINATION, in correspondence, instances of danger o^ 229 PRODUCE, notice to — caution concerning 177, 186 legal effect of refusal to, 186 moral effect with jury, where no cause assigned for refusal, 187 exposing case to opponent, by needlessly including documents in, 212 PROFANE language, a caution against, 79 PROMPTNESS in laying pleadings, etc, before counsel, 199 answering letters, great benefits of, 165 large fortune attributed to the habit ofi by an eminent practitioner, 230 PROOFS, how to prepare efficiently, 185 marshal advantageously, 186 PROPERTY of clients, attorneys deaUng with, must be rigorously faithful, 249 principles adopted in law and equity, in order to secure fidehty, 250 judgments of Lords Eldon and Cottenham, 250 law o^ real and personal, loi two recent elementary works on, recommended, 103 PUBLIC speaking, importance o^ to attorneys and solicitors, 236 hints concerning, __ ^26. 227 PUNCTUALITY to be cultivated, 87 PUNCTUATION, importance of, 18 Q. QUEEN, the, has her private attorney and solicitor, 14 QUESTIONS, examination, Maugham's "Digest" of, 151 very useful to masters in teaching clerks, 1-2 not easy to frame good practical, je2 Q UIC Q U2D delirant Reges^ pUctunter A chivi^ 16- Digitized by Microsoft® Index. 295 R. RASHLY entering the legal profession, foUy and danger of, 46 REAL and personal property, two recent treatises on, recommended, 103 REFERRED, actions likely to be, should not be proceeded with to trial, 168 REFERENCE of causes, attorneys sometimes unduly coerced into, 16S but occasionally resist them unreasonably, 168 should never be made to laymen, 214 mischievous consequences ofi(^ 214 why legal arbitrators preferable, 215 courts will not relieve against error in law or facl^ because arbitrator a layman, 215, 218 insert a clause giving power to state facts for opinion of courl^ on the law, 218 to two arbitrators and umpire, practice bungling, and leads to inconvenience, . . 219 suggestion in case 0^ 219 parties ought not be examined, 219 except in very extreme cases, 219 when attorneys arbitrators, may get counsel to settle award, if difficult, 220 how to conduct the arbitration, 220 treatment of advocates and witnesses, 220 awarding costs, caution concerning, 221 importance of arbitrator's duty, 221 judge of fact, law and equity, 222 attorneys appearing before arbitrators, 222 and against counsel, 223 caution concerning, 223 should attempt to come quickly to an understanding with opponent, to save expenses, 223 how to examine, cross-examine, and address the arbitrator, 224 caution concerning presence of client, 225 REFORM bin, its provisions to be cztrefiilly studied, 154 RELIANCE, selfi how to acquire a justifiable sense o^ 7 74 REMOVAL of attorneys, 44 'RENDER unto Csesar the things that are Csesar's," 189 ' REPENTING at leisure a hasty move," what it means, 49 RESPONSIBILITY, training to sustain, 89, 148 RETAINER, written, from clients, should always be taken before commendng proceedings, 208. 209 REVOLUTIONARY movements scouted m England , 29 RICH, making haste to be, its injurious tendency, 250 •RICHARDSON'S Dictionary, " definition of " Clerk," 47 Digitized by Microsoft® 296 Index. S. PAGE. SANGUINE, caution against appearing, before clients, 213 SCIENTIFIC cases require attorneys and solicitors to possess some scientific knowledge, S2-54 SCOTLAND, meaning of " attorneys ** there, 238 solemn swearing of witness there, 253 SECONDARY evidence, why so important to be provided with, 186-188 no degrees in, 186 practical inference from, 187 SECRETS should be preserved inviolate in spite of all temptations, 230 studied caution requisite, 231 family secrets, often delicate nature o^ 231 occasional embarrassment of position, 232 discretion and honor requisite, 232 an instance, 232, 233 SECURITY, sense of national and individual, enjoyed under our institutions, .. , 28 a contrast with state of continental neighbors, 28 insufficient, attorney suflFering client to advance money on, 113 "SEEING ourselves as others see us," 23 SELFISHNESS, practice of legal profession too apt to engender, 14 SELF-SUFFICIENCY, odious, and silly character of, 266 SERVICE under articles will have to be sworn to, 72 which should always be borne in mind, 72 SERVICES of attorneys and solicitors, often forgotten at sight of their bill, 137 SET-OFF and payment, important distinction between, 170 framing particulars of, 169, 170 plea of, a plaintiff cannot oust defendant 01^ by giving credit for, 171 SHAKESPEARE, quoted, 30 SHARON Turner, a practicing attorney and solicitor till his death, 157 SHORT-HAND, its utUity, ^8 SILENCE often affords cogent presumptions, , 204 application to pedigree evidence, 202 SIMILITER, the, caution against rashly adding, „- SIX clerks recently abolished, ^ their clerks the origin of solicitors, g SKILLFUL and unskillful practitioners contrasted at a testator's death-bed- side, n 5-1 17 Digitized by Microsoft® Index. 297 PAGE. SLANG expressions never to be used, , 79 SLIPS in practice of opponent, mean to take advantage oi^ 139, 140 SLOVENLY habits of business, to be sedulously avoided, 240 SMITH, J. W., the late, his distinguished scholarship and accomplishments,.... 158 also a laborious and learned lawyer, 158 his opinion In re The Gutter, 166 a lecturer at the Law Institution, log his "Elementary view of an Action at Law," 100 "Lectures on Contracts," _ loi "Treatise on Mercantile Law," X05 "Leading Cases," X50 Sidney, his "Chancery Practice," quoted, 236 SOCIETY, the love of, an original tendency of our nature, 26 civil, how constituted, 26 "SOHELPYOUGOD"— dread significance of the words, 254 SOLICITOR, origin 0^ 237 much later than " attorney," 236 occasional absurd preference for, 237 SPEAKING in public, important to attorneys and solicitors, 236 SPECIAL jury, when advisable to have, 194 not liable to violent prejudices, of common juries, 194 a striking instance, i94 SPECULATION, to be always eschewed by attorneys and solictors, 251 ruinous consequences and tendencies of, 251 SPIRITS of wine — are sweet spirits of nitre? 64 judge and jury puzzled about, 64 STAMPS, effect of erasures, interlineations, eta, on, 187 suggestions of counsel as to necessity o^ at consultation, 188 femiliar knowledge of Stamp Acts requisite, 188 a case of conscience proposed concerning, i8g how effectually to object to insufficiency or want oi^ at trial, 189 often overlooked through inattention 190 a practical reason for attending to it, ^9«> to procure, if possible, an admission, ^9° Slatterie v. Pooley, an important case on this poin^ 191 STATEMENTS of clients, attorneys and solicitors not to rest satisfied with, 238 but ascertain how the fact is, 238 instance of danger of so resting satisfied, »33 STOPPAGE w^ra»Jfi^, law flf; generally required of a sudden, 113 Digitized by Microsoft® 298 Index. STORY, Professor, quoted, on the confidential nature of employment of attorneys and solicitors, ®49 SUDDENLY called for law, practitioner should take care to be spedally ready in "3. 151 SUGDEN, Sir E., his invaluable treatise on "The Law of Vendors. and Pur- chasers," 24° a storehouse of suggestions, -- 24^ " SUPERIOR and inferior " walk of the profession, language to be avoided, 266 SUPPRESSING facts, in case for counsel's opinion, deprives it of all value, 245 neither client nor attorney derives any benefit or protection from, 246 in affidavit to obtain capias under stat i and 2 Vict c no, §3, 246 SWIFT, Dean, quoted, 23 T. TAXING master, an object to be kept in view by an eager practitioner, in com- mencing and conducting proceedings, 208 TECHNICAL advantages, sometimes may be justifiably taken, - .-. 198 TEMPER, attorney and solicitor should obtain the mastery over, 78 TENTERDEN, Lord his caution against forcing on reluctant plaintifis, 198 rebukes the use of " solicitor " with reference to law proceedings, 236 on the duty of attorney to examine into his client's documents, and not rest satisfied with his statement concerning them, 239 attorneys ought to keep their own and their clients' money separate 246 "THOU shalt not take the name of the Lord thy God in vain," 254 TIME to be economized, 86 wealth to the wise, dust and ashes to fools, 86 TINDAL, C. J., on the evils of cheap law, 40 definition of the professional duty of attorneys, 129 on cases incapable of trial, and necessarily referred, 168 rebuke of attorney for suppressio veri in aflSdavit for capias^ 246 TITTLE-TATTLING out of the office, 82 anecdote, g, TRUSTEES and executors, vast confidence reposed in attorneys and solicitors as, 41 TURNER, Sharon, the eminent historian, a practicing attorney till his death, . . - 157 u. UMPIRE, appointment o( by two arbitrators, the practice condemned, 218 UNANIMITY, professional, advantages o^ 267 Digitized by Microsoft® Index. 299 PAGE. UNDER-SHERIFFS, attorneys as, 42 UNDERTAKINGS on behalf of clients, caution concerning entering into, 209 dangers of haste or inadvertence, 209 personal liability incurred unintentionally, 210 instance, 210 enforced summarily by courts, though technically void ; why, 21 1 UNIVERSITIES, intended attorneys and solicitors studying at, 68 Oxford, Cambridge, Dublin, Durham, and London, 68 legislative provisions in respect ol^ 68, 6g advantage of studying at, 68 a caution, ^ 70 V. VARIANCE of one letter, through carelessness, instance of the ruinous effects 0^ 96 VERDICT, attorney's duties do not end with, 196 fruits of it to be secured to client, 196 steps must be taken to defeat fraud, 196 bemg prepared with affidavit for immediate execution, 197 VESTRY clerks, attorneys as, 42 VINDICTIVE NESS of clients to be discouraged and checked by their attor- neys, 38, 39 VIOLENCE, brutal, object of law to restrain, 23 we will not have our laws changed by, here, whatever may happen abroad, . . 29 w. WALPOLE, S. H., a former lecturer at the Law Institution, 109 WARBURTON, Bishop, an attorney's derk for five years, IS7 WASTE paper, will of dead man, mere, through his attorney's negligence or ignorance, ^'4 WATTS, Dr., a useful passage from, on acquiring a steady fixation of thought, .. 66 WHATELY, Dr., his " Easy Lessons on Reasoning " recommended, 67 WILL, arbitrary, and brute force, object of law to limit and restrain, 26 WILLIAMS, Joshua, his Treatise on Real and Personal Property recommended, 102 WILLS, executed in unplicit reliance on skill of attorney and solicitor, at irreparable evils occasioned by insufficient, "S benefit and blessing of skill in framing, "S, "6 great responsibility in making, and advisii^ testators on, 256 Digitized by Microsoft® Q02 List of Cases. PAGE. Fairthorne, in re^ ^'^ Featherstonehaugh v. Fenwick, i6o Fuller V. Fenwick, ^^^ Gibbons v. Alison, 246 Godefroy v. Dalton, 129 Goodman v. Whitcombe, 160 Hall V. Ashurst, 210 Hallz/. BaU, 186 Hall V. Laver, 208 Hall V. Suydam, 246 Heath v. Evans, 160 Hiltiard, ex parte, 211 Holtiv Squire, , i77 Howard v. Smith, 191 Hungate v. Gascoigne, 204 Hunters. Atkins, 250 Huntig V. Railing, 215 Ireson v. Pearman, 241 Jeans v. Wheadon, 186 Leadbitter v. Farrow, 210 Lord V. Kellett, 208 Marshall ff. Clift, 177 Michell V. Williams, 244 Miller v. Travers, J 98 Milward v. Temple, 178 Monckton v. Attorney-General, 201 Moore v. Magan, 97 Nerot V. Bumand, 160 Owen V. Ord, 208 Palmer v. Stevens, 211 Panton v. Williams, 244 Peacock v. Peacock, 160 Pitt V. Yalden, 131 Pratt, matter o^ iii Ravenga v. Mackintosh, 245 Regina v. Welch, * 191 Robinson v. Ward, 246 Robson V. Attorney-General, 201, 204 Digitized by Microsoft® LIST OF CASES AND STATUTES, REFERRED TO IN THE FOREGOING WORK. CASES. PAGE Ames V. Stearns, 246 Attorney-General v. Bailey, - 64 Attorney-General v. Firmin, 64 Bainbridge v. Firmiston, 103 Bate V, Kinsey, iSy Eateman ex parte, ". 126 Bates «*. Hillman, 18 Bethel v. Blencoe, ...i 191 Birdoe v. Spittle, ., i3g Bloj^m V. Elsie, igi Brown v. Woodman, 186 Brunt V. Wardle, 15 Bulkeley v. Wilford, 250 Cole, ex parte, 125 Copley V. Medeiro, 97 Crawshay v. Maule, 160 Crisp V. Anderson, 187 Davidson v. Cooper, 188 Davies v. Lowndes, 201 De Montmorency v. Devereux, 250 Doe V. Barton, 201 Doe V. Davie^ 201 Doe». Griffin, - 201 Doew. Randall, 201 Doe V. Ross, 186 Donaldson z*. Haldane, i3S. ^3^ Elders. Bogardus, * 132 26 Digitized by Microsoft® 304 List of Statutes. STATUTES. PAGE. 4Hen. TV. c. i8, lax II Hen. VII, c 12, 15 21 Car. II, c. 3, 211 8 Anne, c. 16, 209 2 Geo. II, c. 23, 72 1 and 2 Geo. IV, x,. 48, 68 2 Wm. IV, C39, 96 2 Wm. IV, c. 45, 154 5and6Wm. IV, u. 62, 254 5 and 6 Wm. IV, c. 76, 154 6 and 7 Wm. IV, c 103, , 154 7 Wm. IV, and i Vic. c 78, 154 z and 2 ViQ. c. no, 96, 246 S and 6 Vic. c. 103, 236 5 and 6 Vic. c. 104, ^ 154 6 and 7 Vic. c.18 154 6 and 7 Vic c. 23, 73 6 and 7 Vic *,-. 73, - 69, 106, 107, j2i 6 and 7 Vic C89, 154 8 and 9 Vic c. 48, _ 254 8 and 9 Vic. c.110, 154 Digitized by Microsoft® List of Cases. 363 PAGE. Roe V. Harvey, 187 Rogers &. Pittis, 267 Ross V. Inness, 246 Russell V. Palmer, 134 Sharman v. Bell, ..., , 217 Sianey v. Wade^ 201 Slatterie v. Pooley, 190, 191 Stannard v. UUithome, 132, 133 Taylor zf. Williams, 245 Tittertonw. Shepherd, 211 Tracy Peerage Case, 204 Vowles V. Young, 202 Wiggins V. Pepper, 208 Wilkes V. Hopkins, 175, 176 Wilkinson v. Oliviera, 103 Wilson ».*rucker, 239 Young V. Walter, 216 Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft®