.,_ Cornell University Library 
 
 KF 306.29D72 
 
 The American lawyer, as he was— as he is- 
 
 3 1924 018 771 265 
 
 (IJnrnpU ICaw ^rtjool library 
 
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 vv 
 
 RhELL UNIVERSITY 
 
 "m 11 1908 
 LAW LIBRARY. 
 
Cornell University 
 Library 
 
 The original of this 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.archive.org/details/cu31924018771265 
 
THE 
 
 AMERICAN LAWYER 
 
 AS HE WAS— AS HE IS— AS HE CAN BE 
 
 BY 
 
 JOHN R. DOS PASSOS 
 
 OF THE NEW YORK BAR 
 
 Author of " The Law of Stock Brokers & Stock Exchanges," 
 
 " Interstate Commerce Act," " Commercial Trusts," 
 
 "The Anglo-Saxon Century," &c, &c. 
 
 THE BANKS LAW PUBLISHING CO., 
 NEW YORK 
 1907 
 
Jopyright, 1907, by 
 JOHN R. DOS PASSOS 
 
CONTENTS 
 
 CHAPTER I 
 
 PAGE 
 
 Introductory 1 
 
 CHAPTER II 
 The Genealogy of the Lawyer 7 
 
 CHAPTER III 
 
 A Parallel Between the Past and Present 
 Lawyers of the United States 12 
 
 CHAPTER IV 
 
 The Press, the Stage, the Literature, and the 
 Bar, since the Civil War 35 
 
 CHAPTER V 
 
 The Education of the Lawyer, and the Condi- 
 tions under which he is Authorized to 
 Practice, and his Oath 50 
 
 CHAPTER VI 
 
 Nature of Lawyer's Vocation 68 
 
 iii 
 
IV CONTENTS 
 
 CHAPTER VII 
 
 PAGE 
 
 The Lawyer's Political Employment as a Legis- 
 lator, and in other Capacities. The Duties 
 of a Legislator 85 
 
 CHAPTER VIII 
 The Obligations of a Lawyer 115 
 
 CHAPTER IX 
 The "Duties" of a Lawyer 124 
 
 CHAPTER X 
 Causes and Remedies 164 
 
THE 
 
 AMERICAN LAWYER. 
 
 CHAPTER I. 
 
 INTRODUCTORY. 
 
 It is assumed that what the people of the 
 United States really think or want, as citizens, 
 is expressed through the ballot box. In the in- 
 terim of these official utterances, public thought 
 is reflected, and more or less created, by the 
 four great organs of public opinion, — the Pulpit, 
 the Press, the Bar, and the Stage. I shall not 
 undertake to estimate the relative value of each 
 of these organs, as creative forces, in shaping 
 the course and destiny of the nation, but it is 
 impossible to discuss one without keeping them 
 all in view. They are parts of a whole. They 
 bear the same close relationship to each other 
 that the nose, the ears, the eyes, and the throat, 
 do to the head. Still each is capable of separate, 
 
 A 1 
 
2 THE AMERICAN LAWYER. 
 
 distinctive treatment; but it is only by acquir- 
 ing a correct knowledge of them all, that one can 
 fully comprehend the combined influence which 
 these four organs may have upon existing 
 affairs. 
 
 My subject is the Bar, but I must elucidate it, 
 here and there, by brief reference to the Pulpit, 
 the Press, and the Stage. 
 
 In a confederation of States like the one which 
 we have established, with a written Constitution, 
 it seems natural that the lawyers should pre- 
 dominate in the government. They framed the 
 former instrument. They both make and in- 
 terpret the laws. While this is said to be a 
 government of the people, by the people, and 
 for the people, it is not, perhaps, going too far to 
 add, — subject to the lawyers. At least, the crude 
 sentiments of the people, must be filtered through 
 the lawyers, first as politicians, then as legis- 
 lators, and afterwards as lawyers and Judges. 
 The lawyers swarm in all of the departments of 
 the National and State Government, and while 
 they never act in public questions as an organ- 
 ized body — as a unit — their influence, in all 
 branches of public and private life, is most pro- 
 found and penetrating. It is, therefore, both 
 the right and interest of the whole people to de- 
 mand that lawyers should be intelligent, capable, 
 honest, and devoted to the administration of 
 
INTRODUCTORY. 6 
 
 justice. When hundreds of lawyers are turned 
 out upon the community each year, to graze 
 upon all of the pastures of public office; when 
 they swarm in, and control, every branch of the 
 government, executive, judicial and legislative, 
 no question is of more importance to the people 
 than to know whether this dominating class is 
 living up to its true mission. Despite this pal- 
 pable truth, the laity has paid no attention to 
 the subject. Nor does the Bar make any full, 
 real, introspection of itself. 
 
 "Know thyself" was the Delphian invocation. 
 In every aspect of life, it is to be classed among 
 the most important of commands. It has been 
 overlooked, or neglected, by the lawyers in respect 
 to their office. At least, no one has yet made 
 public the results of an investigation of the pro- 
 fession. While the multitudinous treatises which 
 legal writers have published, cover almost every 
 inch in the extensive field of technical law, the 
 important region of the lawyer's vocation seems 
 to have escaped them. Apparently no lawyer 
 has yet published the real nature of his calling — 
 going from the top to the bottom of it. The rea- 
 son is obvious. It is a subject more literary and 
 general, than legal. It carries one far beyond 
 precedent. He who ventures therein must be 
 prepared to quit the sacred precincts of precedent 
 and stare decisis, and depend upon ethics, and 
 
4 THE AMERICAN LAWYER. 
 
 the natural conditions, which underlie human 
 society. 
 
 When lawyers become authors, they are unable 
 to free themselves from technical and professional 
 restraints, and while their works have done 
 something, to reduce the law to a science, within 
 itself, yet its more comprehensive relations have 
 escaped them. Hence the enormous impor- 
 tance of those aspects, which, while doubtless 
 felt in a dim way, have hitherto received but 
 little recognition as living forces in society. 
 
 But beyond all of this; when a lawyer under- 
 takes an honest introspection of his profession, 
 he is very apt to run into a confession. He must 
 then say some ugly things about himself. Men 
 do not like to confess, except to themselves. 
 Hence,. while many lawyers have doubtless rumi- 
 nated upon the subject — covering with their 
 mind's eye the same field which I am about to 
 traverse — they have not screwed their courage 
 to a point of putting their thoughts upon paper. 
 
 It is of the first importance to endeavor to 
 ascertain, accurately, the due relation of lawyers 
 to other interests of the community, and then to 
 inquire if they have lived up to it. 
 
 What is a lawyer? What is his real mission? 
 What relation does he bear to the government 
 of which he is a citizen? What are his real 
 duties to society? 
 
INTRODUCTORY. 5 
 
 Some technical books have been written about 
 the obligations of lawyers. Warren published 
 his lectures, 1 the broad title of which, if it had 
 been sustained in the text, would have covered 
 some of the ground gone over here; Forsyth's 
 "History of Lawyers" is a most interesting 
 historical review of the profession from remote 
 periods; and Sharswood has contributed a little 
 work on Professional Ethics. And there are 
 several books on the lawyer's technical duties 
 and liabilities. 
 
 Besides, narratives, lectures, and essays, with- 
 out stint, have been written and published, 
 covering legal romance and history, and all phases 
 of a lawyer's life and of his relations to his client; 
 but no one has raised the curtain upon the law- 
 yer in his full relations to society. In all of 
 their writings, one sees that the lawyer's vision 
 of his calling, seems to have extended no further 
 than to a contemplation of his duties to his clients, 
 and to the courts. We look in vain for any ade- 
 quate, distinctive, treatment of this subject, 
 beyond this narrow view. 
 
 It is quite well understood that to his clients 
 the lawyer is held to unexceptionable purity of 
 conduct, and that he must be fair and honorable 
 with the Court. These duties are imperishably 
 
 i"The Moral, Social and Professional Duties of Attorneys and 
 Solicitors." 
 
6 THE AMERICAN LAWYER. 
 
 written upon the lawyer's mind. They seem to 
 be a part of the milk of his education, which he 
 unconsciously imbibes before entering upon the 
 duties of his office. 
 
 The lawyers stop here in the survey of their 
 mission, and as there is no course of instruction, 
 or book, which opens to them their full duties, 
 it is not surprising, that they start out in pro- 
 fessional life, with a very inadequate knowledge 
 of their calling. Fundamentally, they believe 
 that, at the top and bottom of their professional 
 career, they should serve their clients at all 
 sacrifices, sometimes even of truth and justice. 
 
 Accordingly, I know of no occupation more 
 interesting, than to attempt to hold up to the 
 lawyer, a faithful picture of his real mission. It 
 then will be seen, that a large number of the law- 
 yers are delinquents to society, not with malice 
 prepense, but from a failure to appreciate the 
 real and full nature of their professional duties. 
 
CHAPTER II. 
 
 THE GENEALOGY OF THE LAWYER. 
 
 The profession of the law has been at all times, 
 and in all countries, a favored and honored call- 
 ing. This distinction, it appears, originally grew 
 out of the superior knowledge of the lawyers. In 
 England, the nobles and warriors of ancient 
 times were ignorant of reading and writing, and 
 if they did not look with absolute contempt 
 upon these arts, they at least regarded them as 
 effeminate and inharmonious with their lives. 
 All knowledge was locked up in the breasts of 
 Ecclesiastics, who acted in the multiform relation 
 of priests, literati, moralists, and law advisers. 
 It was then, as it should be (but is not) now, 
 the man of superior mind and education con- 
 trolled. But apart from direct historical data, 
 lawyers are a necessary part of civilization. 
 There must always exist, in connection with a 
 government, a body of men whose business and 
 training fit them as interpreters of law — stand- 
 ing, as it were, between the State and litigants, to 
 
 7 
 
8 THE AMERICAN LAWYER. 
 
 see that proper application of laws, is made to 
 individual disputes. 
 
 In England the law began to be cultivated as 
 a separate study in the thirteenth century. 1 
 The lawyers gradually segregated themselves from 
 the ecclesiastical system, and an independent 
 order of their own was the consequence. Regula- 
 tion of attorneys was made in the reign of 
 Henry IV. 
 
 Reeves 2 puts it in this wise: 
 
 "The Parliament began to make some 
 provision for ordering attorneys, who had 
 now become a very considerable body of 
 men. Complaint had been made of the 
 mischiefs arising from their ignorance and 
 want of knowledge of the law; and there- 
 fore, to make sure of their qualifications, 
 it was ordained by Stat. 4, Hen. IV, c. XVIII, 
 that all attorneys should be examined by 
 the justices, and by their directions their 
 names should be put in a roll; they were 
 to be good and virtuous and of good fame; 
 and if they appeared to be such, they were 
 to be received and sworn well and truly 
 to serve in their offices, and especially that 
 they make no suit in a foreign country; all 
 other attorneys were to be put out, and 
 such as were passed in the above manner 
 
 i See Pollock & Maitland's " His- 2 " History of English Law," I, 
 
 tory of English Law," Vol. I, page p. 422. 
 211 et seq., 2d ed. 
 
THE GENEALOGY OP THE LAWYEK. 9 
 
 were to be put in their places by their mas- 
 ters (sic), that is, by their clients. 
 
 " It was enacted that when qualified attor- 
 neys died, or ceased to act, the justices 
 might appoint others in their room, being 
 virtuous and learned, and sworn as above 
 mentioned. 
 
 " It was enacted, that if any attorney was 
 found notoriously in default, of record, or 
 otherwise, he should forswear the court, 
 and never be received to make suit in any 
 of the king's courts; this ordinance was 
 also to be observed in the exchequer at 
 the discretion of the treasurer and barons." 
 
 The lawyer first appeared as a friend and adviser 
 of the court. He worked with the latter to sift 
 out the truth and render justice. When the occu- 
 pation of the lawyer, however, consisted in repre- 
 senting litigants before the courts for money, 
 the intimacy, so to speak, between himself and 
 the court began to weaken, and so far as his in- 
 dividual cases were concerned it was simply hu- 
 man nature, that his advocacy of his client's 
 interests should overcome his independence, and 
 that his usefulness, as a true friend of the court, 
 should diminish. Originally, the client could 
 not read or write; and notwithstanding that 
 the law was simple and contained in a few books, 
 the client did not understand it. Now the client 
 can both read and write; but the law is complex 
 
10 THE AMERICAN LAWYER. 
 
 and multifarious, and the client cannot pursue 
 it, in all of its labyrinths, without a trained legal 
 guide, and that legal guide very frequently knows 
 not the way out of the woods himself, for the 
 paths through adjudications, statutes, codes, and 
 law treatises, are mazy and tangled. 
 
 It is a characteristic of the human mind to be 
 faithful to a trust ; to be over- rather than under- 
 zealous in its performance. In all the varieties 
 of affairs where individuals are compelled to re- 
 pose confidence in others, the breach of it is the 
 .exception, not the rule. The lawyers are the 
 most prominent illustrations of this truth. Fi- 
 delity, zealousness, untiring industry, and all 
 kinds of personal sacrifices in the interest of the 
 client, are their predominating traits. This has 
 led them to excesses in advocacy — often to gross 
 exaggeration of facts — and sometimes to crime. 
 Inordinate zeal for clients, and ambition to win, 
 are powerful stimulants to human energy, and 
 often sweep away moral and legal barriers, which 
 stand in the path of success. Human nature 
 was very much the same in the thirteenth, as it 
 is in the twentieth, century. The brakes were 
 then applied to the illegal practices of lawyers 
 as they are now; and a statute is cited, passed 
 in King Edward the First's day (1275), threaten- 
 ing with imprisonment the " serjeant countor," or 
 advocates guilty of collusive or deceitful practices. 
 
THE GENEALOGY OF THE LAWYER. 11 
 
 The only importance of the above references 
 is to show that at all times there has been a 
 tendency on the part of lawyers, generally from 
 excess of zeal, sometimes from greed or ambition, 
 to overstep the limits of true professional bounds. 
 They also serve to apprise the present Bar that 
 all of the evils are not characteristic of this era. 
 
 The abuse of power and opportunities, and of 
 unlimited confidence, is the primary sin for which 
 the lawyers are answerable. What this power 
 is, and when and how the confidence is bestowed, 
 will be set forth in the subsequent chapters. But 
 they chiefly arise out of their relation to the State, 
 and not to their clients. 
 
CHAPTER III. 
 
 A PARALLEL BETWEEN THE PAST AND PRESENT 
 LAWYERS OF THE UNITED STATES. 
 
 It is said that comparison gives definiteness 
 and clearness to thought, and that we never can 
 understand anything well, without comparing 
 it with something else. 
 
 I am drawing a line between the period before 
 and after the Civil War, and I put the old gene- 
 ration of American lawyers on the farther side, 
 and the new ones on this side of the line. I thus 
 institute a comparison which I think is happy. 
 I cannot speak with complete knowledge of the 
 old generation. I was not of it. It was gradually 
 disappearing when I became an apprentice to the 
 law. I gathered enough, however, from instruc- 
 tion and association, to speak with some authority 
 of the past. The fundamental difference between 
 the old and new regime of lawyers is this: the 
 great aim of the old lawyers was to master the 
 elements of law; they depended upon an eloquent 
 presentation of their causes; they stood nearer to 
 12 
 
PAST AND PRESENT LAWYERS. 13 
 
 the. courts than the lawyers of to-day ; the judges 
 had the time, and it was their pleasure, to listen 
 to the advocates; "commercialism" did not ex- 
 ist; there were less legal tricks or technical 
 legerdemain to resort to, because that dire plague 
 of codification had not yet spread itself over 
 the profession, and destroyed its science, as it 
 existed under the common law, where, while 
 form was strictly observed, the substance or 
 merits of a controversy, were principally sought 
 for. 
 
 The lawyers of to-day are case and code law- 
 yers. The search for 'principle is subordinate to 
 an investigation for a precedent. The right or 
 justice, or the merits of controversies, disappear 
 under a mass of irreconcilable decisions and 
 forms. It requires a different kind of intellectual 
 development to be a lawyer than it did in the 
 days long gone by. The modern code lawyer is 
 bright enough, and his wits, like the quills on 
 a fretful porcupine, are always in full play. He 
 knows little of elementary law, but he carries, 
 as a soldier would a knapsack, a memory filled 
 with sections of codes and adjudicated cases. 
 A legal combat now consists of hurling provisions 
 of the Code and "pat" precedents at each other. 
 Hence the modern advocate's nose is always to 
 be found in a digest, "case "-law accumulat- 
 ing so fast that he must have indices to search 
 
14 THE AMERICAN LAWYER. 
 
 for his precedents. Poor soul! if he cannot find 
 a precedent, he is in a terrible sweat. But he 
 is resourceful and sophistical, and in the absence 
 of his "authority" he begins to differentiate and 
 distinguish, and he grinds away, at the precedent 
 of his adversary until it is whittled to nothing. 
 If he is clever in his presentation, the courts 
 generally follow him, and wipe out the old prec- 
 edent by differentiation, and with a mock re- 
 spect for stare decisis, pay as much attention to 
 it, when it stands in the way of their latest con- 
 victions, as a court of last resort would regard a 
 decision of a primary magistrate. 
 
 I must pause here to say a word in reference to 
 the doctrine of stare decisis. It is a venerable 
 principle in Anglo-Saxon jurisprudence. To-day, 
 while there is an affected respect for it, there is 
 often an actual departure from it, introducing 
 manifold inconsistencies and confusion. It is a 
 serious question whether the doctrine of stare 
 decisis can be, now, strictly upheld. Under any 
 conditions it necessarily dwarfed the intellect, and 
 stifled moral convictions. No lawyer, or court, 
 could accept a precedent, which he believed to be 
 wrong, without a struggle, and with reluctance. 
 The effort of the legal and judicial mind in these 
 times is to differentiate it, and thus escape from 
 its consequences. Whatever merit the doctrine 
 possessed a century ago (and as a rule of property 
 
PAST AND PRESENT LAWYERS. 15 
 
 it was great as fixing stability), precedents have 
 accumulated so fast that the mind is lost in a 
 maze of confusion in endeavoring to follow them. 
 When the law reports were few, and the prece- 
 dents shone like bright stars, in the legal firma- 
 ment, and the lawyers knew and followed them, 
 as astronomers do the particular planets, the 
 application of stare decisis was easy and simple. 
 But now — it flitters between the thousands of 
 decisions as a phantom of the law — not as a 
 vital principle. 
 
 I will give a striking instance occurring in the 
 State of New York, which illustrates the con- 
 dition of the doctrine of stare decisis, caused by 
 a multiplicity of decisions and legal reports. 
 
 In the case of Williams v. Trust Co., decided 
 in May, 1892 1 it appeared that the plaintiff had 
 pledged to the defendant certain bonds, as secu- 
 rity for a loan under a collateral stock note, pro- 
 viding that in case of default in payment at the 
 time specified, defendant might sell the securi- 
 ties "in such manner as they in their discretion 
 may deem proper without notice." The note 
 was dated March 1st, 1884, and was payable 
 six months after date. The plaintiff's rights 
 were not foreclosed on the maturity of the loan, 
 but there were numerous interviews and com- 
 munications between the parties looking to the 
 
 1 133 N. Y. 660. 
 
16 THE AMERICAN LAWYER. 
 
 extension of the loan, and operating, as claimed 
 by the plaintiff, as a waiver. Notwithstanding 
 the efforts of the plaintiff, to have the question 
 of waiver determined by the jury, as one of fact, 
 the Court refused, and held that the defendants 
 had the right to foreclose the pledge, without 
 notice, at any time, after the maturity of the 
 loan, unless the written agreement was in some 
 way modified, and that the parties had not 
 modified their rights by anything that occurred 
 after the 1st of September, when the loan ma- 
 tured. The Court of Appeals sustained this 
 view, and defeated the plaintiff, holding that the 
 Court below committed no error, in not submit- 
 ting the case to the jury. 
 
 This direct question came again before the 
 Court in the case of Toplitz v. Bauer, 1 in January, 
 1900, nearly eight years after the preceding 
 case. In that case the Court, contrary to its 
 decision in the preceding case of Williams, held 
 that the contract of bailment, whereby personal 
 property is pledged, as security for a debt, is 
 one of the class of contracts where the mere 
 indulgence on the part of the creditor by a promise 
 to extend the time, or by his conduct, will effect 
 a change in the duties and obligations of the par- 
 ties to each other, as prescribed by the original 
 agreement, and that where the original contract 
 
 1 161 N. Y. 325. 
 
PAST AND PRESENT LAWYERS. 17 
 
 under which property is pledged as collateral 
 security for the payment of a note, permits a 
 sale, public or private or otherwise, without 
 notice to the pledgor, the right of the pledgee 
 to so dispose of it, upon default in payment of 
 the note, may be waived by agreement, declara- 
 tion, or course of conduct on his part, which leads 
 the pledgor to believe that a forfeiture will not 
 be insisted upon without an opportunity given 
 him to redeem, and no new or independent con- 
 sideration is required to support the waiver, 
 and that if, after having waived his right to a 
 strict performance of the contract, the pledgee 
 proceeds on the note, without notice, he is liable 
 for damages occasioned thereby in an action of 
 conversion. 
 
 Now the vicissitudes of the doctrine of stare 
 decisis under present conditions were powerfully 
 displayed in the above litigations. The case 
 of Williams was controlling upon the court, in 
 the latter case of Toplitz, but the court, consist- 
 ing of a different personnel, did not remember 
 its own previous decision, nor was its attention 
 called to it in the points of counsel, on either 
 side; and hence it proceeded to decide the Top- 
 litz case on a new line of reasoning, in entire 
 ignorance of its previous decision in the Williams 
 case! A century ago such a precedent would 
 hardly have passed unnoticed. 
 
 B 
 
18 THE AMEEICAN LAWYER. 
 
 Now which of these decisions is right, and 
 which is binding? Naturally, or logically, the 
 last decision. But, inasmuch as it was made 
 without any knowledge of the previous one, 
 the whole question apparently remains open. 
 Yet thousands of dollars were lost by the un- 
 successful litigant in the first case, and as much 
 saved by the fortunate plaintiff in the second. 
 Alas! for the uncertainty and instability of stare 
 decisis. 
 
 This is only one illustration. I cannot afford 
 space for others. No doubt they are within the 
 recollection and reach of the Bar, and, unfortu- 
 nately, in sufficient number to show how sensibly 
 weakened the doctrines of stare decisis has be- 
 come, by virtue of a multiplicity of decisions 
 which cannot be unearthed, even by the most 
 lynx eyed, or industrious precedent hunter. 
 
 These views are further illustrated in reading 
 the decisions of the Supreme Court of the United 
 States, and those of the highest courts of the in- 
 dividual States — say for the last twenty-five 
 years. Such a mass of bad reasoning, illogical 
 conclusions, disregard of the rule of stare decisis, 
 contradictory statements, and an ignorance or 
 contempt of the history and spirit of the Con- 
 stitution of the United States, and of the several 
 States; such a lack of knowledge of elementary 
 law, and of the principles of jurisprudence, hardly 
 
PAST AND PRESENT LAWYERS. 19 
 
 can be imagined to exist. Let anyone, for ex- 
 ample, undertake to enter into the extensive 
 field of decisions, created by the interpretation 
 of the Commerce Clause of the Constitution, since 
 the Civil War, and if he does not emerge with 
 a mind scratched and bleeding from the thousand 
 thorns there existing, it is because he has no in- 
 tellectual perception. That simple enactment, 
 whose history is so well known to students of 
 the American Constitution, has been so twisted 
 and turned by the judicial minds which have 
 grappled with it, that it can be said of it, as was 
 repeated of the "Year Books" — a precedent 
 can be there found on any side, of any subject, 
 which anyone chooses to espouse. Legislative, 
 and judge-made law, have accumulated so fast 
 and thick, that elementary principles, buried 
 thousands of feet deep under mountains of prec- 
 edents, rarely can be brought to the surface. 
 Courts are ashamed to confess that a precedent 
 which they have made is wrong. It requires 
 great courage to overrule a freshly made de- 
 cision, and hence it is, as it were, "jumped." 
 But I must return to my parallel. Legal prac- 
 tice, to-day, is fencing with the forms of the law, 
 and most of the time the real issue is buried 
 out of sight. The case of Fogg v. Fisk * is a 
 good illustration. By the Code of Procedure of 
 
 1 30 Hun's Rep., p. 61, aff'd 93 N. Y. 652, 113 U. S„ p. 713. 
 
20 THE AMERICAN LAWYER. 
 
 New York, under certain circumstances a party 
 to an action may examine the other party before 
 trial. The plaintiff applied for an order for the 
 examination of the defendant. It was granted. 
 The defendant appealed to the General Term of 
 the Supreme Court. The order was sustained. 
 Then he carried the cause to the Court of Appeals, 
 which in turn affirmed the original order. The 
 defendant was at his wits' end. He must sub- 
 mit to the examination. But his lawyers were 
 equal to the emergency. They transferred the 
 cause to the Federal Court, upon the statement 
 that the defendant could not have a fair trial in 
 the State Court. There was not the slightest 
 ground, in fact, for the motion to transfer, be- 
 cause but few knew of the existence of the case, 
 and those who did cared nothing about it. The 
 affidavit that a fair trial could not be had, how- 
 ever, was not traversable under the then Act of 
 Congress. The object^ of the transfer, was to 
 avail of a decision of the Circuit Court of the 
 United States, that the practice of examining a 
 defendant before trial did not prevail in the 
 Federal Courts. But the Circuit Court judge 
 held, that the defendant could not cut off an 
 examination, already begun in the State Court, 
 by a removal to the Federal Court. The de- 
 fendant then refused to answer; put himself in 
 contempt; sued out a habeas corpus from the 
 
PAST AND PRESENT LAWYERS. 21 
 
 Supreme Court of the United States, and that 
 august tribunal set him free, holding that he 
 escaped examination by removal. The case went 
 to the highest court of the State and of the United 
 States upon a mere question of form — of prac- 
 tice. When it had progressed to this stage, 
 the defendant died, and not one word had ever 
 been heard of the merits! Every practicing 
 lawyer can furnish one or more similar stories. 
 
 What kind of a mental make-up must a lawyer 
 possess, under these conditions, to attain promi- 
 nence? He must be sharp, clever, wakeful, 
 with the multifarious provisions of a Code con- 
 stantly at his beck; a fresh, hot, precedent at his 
 tongue's end; he must be quick of speech, bold, 
 even audacious, in the choice of remedies; he 
 must be a good business man, understanding 
 the necessities of commercial development, and 
 he must create, or make effective, the great 
 schemes of present times, so that his clients will 
 not be entangled in the meshes of modern legis- 
 lation, which springs up as grass, every year, to 
 entrap the unknowing. Real eloquence, and a 
 knowledge of sound elementary law, have almost 
 disappeared, and the lawyer is burdened by the 
 incubus of form and statutes and codes, under 
 which he staggers like Christian in the "Pilgrim's 
 Progress," under the weight of his sins; not, like 
 
22 THE AMERICAN LAWYER. 
 
 him, to have a happy deliverance from them, for 
 when he cannot have recourse to them, he finds 
 none in any other kind of mental equipment, or 
 even in natural ability, or talent. They cut a 
 small figure in his professional life. In a word, 
 merits, justice, are not sought for. A judicial 
 inquiry into the rights of parties means a search 
 for "points" and forms and precedents. 
 
 A comparison between the past and present 
 lawyer, is not disadvantageous intellectually to 
 the latter. He has no less brains ; no less natural 
 intelligence; and he is a better business man, 
 withal, than the lawyer of yore. Simply, he is 
 armed with different weapons. Powder has given 
 way to dynamite; the flint musket to the rifle of 
 twelve cartridges; the cannon loaded at the 
 muzzle and discharged every five or ten minutes, 
 to the breechloader which automatically pours 
 out its murderous fire every second. The law- 
 yer now boldly enters into the business end of 
 his client's transactions — he sells him prudence, 
 and experience, sometimes even usurping the 
 client's discretion and judgment. In point of 
 morals, I can discover little or no difference be- 
 tween the past and present lawyers. As a class, 
 the lawyers always have been ready, to avail 
 themselves of all the weapons at hand, to assist 
 their clients in good or bad causes. It is a lamen- 
 
PAST AND PRESENT LAWYERS. 23 
 
 table truth. The honest and dishonest lawyers 
 shelter themselves under the same pleas, that 
 the law is uncertain, because of its multiplicity. 
 Unfortunately it is more or less a chance. A law- 
 yer, therefore, has a technical answer ready, to 
 sustain him in taking any case. Codification has 
 produced more material to aid dishonest clients 
 than the common law supplied. General business 
 is greater — opportunities more frequent. Hence, 
 trickery, cunning, and pettifogging are more pro- 
 nounced and visible. I doubt, however, if, in 
 proportion to actual numbers, and existing com- 
 mercial conditions, the lawyers, as a body, are 
 morally worse than their professional ancestors. 
 But let me proceed a step farther in the com- 
 parison. In the United States the lawyers, 
 down to the commencement of the Civil War in 
 1861, were the recognized social and intellectual 
 aristocrats of the land. They possessed all of the 
 intelligence of the English lawyer, and at least 
 an equal share of scholastic refinement and learn- 
 ing. When, after the Civil War, Judah P. Ben- 
 jamin, of Louisiana, went to London to practice 
 law, he easily rose to the first position at the 
 English Bar. It was a point of pride with the 
 American lawyer to be "up" in the best litera- 
 ture, ancient and modern. A nice sense of pro- 
 fessional honor, great pride in his calling, and 
 the highest respect for the principles of the law, 
 
24 THE AMERICAN LAWYER. 
 
 were the distinguishing features. There was a 
 sharp difference between them in their concep- 
 tions of democracy as illustrated in the- teachings 
 of Hamilton, on the one side, and Jefferson, on 
 the other; but predominating their party con- 
 victions was a deep faith in political, religious, 
 and social freedom; a profound devotion to the 
 Constitution, both in what it gave and secured, 
 and in what it limited according to differing, but 
 enlightened, interpretation. The lawyers of the 
 past generation believed the Constitution was 
 adaptable — those of the present regard it as elas- 
 tic. This is an age of electricity. The people 
 have neither the time, nor patience, to amend 
 the Constitution. Hence, if prevailing thought 
 demands a Federal law, the Constitution is 
 stretched to uphold the necessary power — at 
 the expense, of course, of the true Federal system. 
 Stretched to a point when the rubber gives way, 
 it touches centralization, but the courts are 
 human, and generally follow prevailing opinion. 
 The Congress, forsooth, has power to make green- 
 backs a legal tender, but no power to create a 
 broad and fair income tax! Here is as beautiful 
 a piece of inconsistency as can be found in our 
 constitutional history. According to the best 
 judgment of the profession, the very reverse is 
 the law — Congress had no power in the former, 
 but full power in the latter, case. 
 
PAST AND PRESENT LAWYERS. 25 
 
 The profession of a lawyer in the United States, 
 to continue, justly carried with it the right to 
 occupy the highest social and political positions. 
 A lawyer commanded respect and confidence. 
 I remember, as a small boy, that, walking one 
 day, some one pointed to a man whom he said 
 was a lawyer. I distinctly recall the impression 
 made upon me. I said, "There goes a man who 
 knows everything," following Cicero's definition 
 of an orator. This was the prevailing opinion 
 of the world. It has not yet entirely faded out. 
 Then it was pronounced; now it is indistinct. 
 
 The Bar has never been dangerous or exclusive; 
 largely, perhaps, because it has never been union- 
 ized. No man, or party, ever dared to attempt 
 to use the American Bar to advance selfish or 
 sinister designs. Yet genuine patriotism among 
 lawyers is, to-day; but feebly illustrated. I be- 
 lieve many of them would stretch the Constitution 
 (Federal or State) until it cracked, to win a case. 
 
 The Civil War marks the commencement of 
 an era of professional change — perhaps I am 
 justified in saying, an intellectual decadence — 
 in the Bar. There certainly was a transforma- 
 tion, from a profession to a business. Before 
 that event, the position of a successful American 
 advocate was regarded as the most honorable 
 and splendid in civic life. It was the social 
 Ultima Thule. It was the goal to which the 
 
26 THE AMERICAN LAWYER. 
 
 intellectual and ambitious youths of the nation 
 strove to reach by heroic efforts of study and 
 self-abnegation. 
 
 The reason was plain. Eloquence was one of 
 the principal attributes of the distinguished ad- 
 vocate, and while it was never cultivated as a 
 separate art, as in Greece and Rome, the indi- 
 vidual lawyer mastered it in his own way, guided 
 by his own instincts and genius, and by such 
 lights as he could borrow from successful contem- 
 poraries, and ancient and classic models. 
 
 The study of eloquence is unquestionably one 
 of the most alluring, as it is one of the most en- 
 nobling, occupations in which the mind can 
 engage. 
 
 " As when of old some orator renowned 
 In Athens or free Rome, when eloquence 
 Flourished, since mute, to some great cause 
 
 addressed, 
 Stood in himself collected, while each part, 
 Motion, each act, won audience ere the 
 
 tongue 
 Sometimes in highth began, as no delay 
 Of preface brooking through his zeal of 
 
 right." 
 
 The aim of the orator being to vindicate right 
 and justice, as the painted purpose of the chival- 
 ric knight of old was to protect and emancipate 
 the oppressed, he necessarily must deeply inquire 
 into the principles of truth, cultivate the graces 
 
PAST AND PRESENT LAWYERS. 27 
 
 of language, and train his mental and physical 
 faculties, to be always ready to, resolutely and 
 courageously, defend the causes placed in his 
 hands. 
 
 The study of metaphysics and logic, of history, 
 literature, languages, and poetry ,- is necessarily 
 involved in the character of an orator. The 
 great book of human nature must ever lie open 
 before him. It has always been one of the most 
 absorbing passions of man, to be able to stand up 
 before his fellows and be listened to. It is a 
 psychological felicity that perhaps preponder- 
 ates all other ambitions. To-day it is the domi- 
 nating passion of all Americans to talk. More 
 oratory, illustrating every conceivable kind of 
 rhetoric, true and false, is now heard in the Uni- 
 ted States in a week, when the legislatures are 
 in session, than Athens or Rome listened to in a 
 century. 
 
 But the real orator has almost entirely dis- 
 appeared from the legal stage. The scenes have 
 shifted. The age of forensic eloquence has gone, 
 with all of its attendant glories and attractions. 
 The practical, brief, crisp, utterances of the mod- 
 ern lawyer have succeeded. Exordiums and per- 
 orations are abolished by rules of court, which es- 
 tablish the limit of legal oratory, from twenty 
 minutes, to two hours. Every oral argument 
 must be boiled down, to the actual bone of the 
 
28 THE AMERICAN LAWYER. 
 
 contention, and the graces of rhetoric are neces- 
 sarily banished. In proportion as legal oratory 
 has been curtailed, what are called legal "briefs" 
 have expanded. To supply that which cannot 
 be spoken, or to instruct an ignorant, too busy, 
 or indolent judiciary, briefs are made to an ab- 
 surd length — often reaching a good-sized duo- 
 decimo, of from one to five hundred pages — 
 leaving nothing to the imagination, or intelli- 
 gence, of the judges who are to read them; mainly 
 because the Bar is afraid to trust everything to 
 their learning and industry. 
 
 In jury trials, professional success is attained 
 before the addresses are made. The skill of the 
 lawyer in handling witnesses, his capacity to 
 twist and magnify facts, the placing of all the 
 circumstances in a dramatic light — these are 
 the means which tell upon the jury. The great 
 raise en scene effects are what bring results. 
 
 Of course it counts to be able to "sum up" 
 well, to group quickly the facts together, in such 
 a way as to catch the minds of a few of the more 
 intelligent jurors, who dominate and capture 
 their fellow jurors in the jury room. I do not 
 mean that wrong is perpetrated. In general, 
 the results of jury trials are just. I say in general, 
 for juries often go astray; but not in a greater 
 proportion than long ago. The distinction I 
 am trying to make clear is, that in times past the 
 
PAST AND PRESENT LAWYERS. 29 
 
 advocates and advocacy were different. The 
 lawyers before the war, and the lawyers of to-day, 
 are as different as the steam engines of now and 
 then. Place an ancient and a modern locomo- 
 tive together, and one cannot suppress an ex- 
 clamation. The great criminal lawyer, David 
 Paul Brown, of Philadelphia, wore a swallow- 
 tail coat and brass buttons, a buff vest, and sym- 
 pathetic trousers. Before he addressed a jury, 
 he carefully placed his gold snuff box in front of 
 him, took from his pocket a bandanna, silk hand- 
 kerchief, blew his nose in the true spirit of a snuff 
 fiend, glanced slowly and carefully around the 
 court room, and after many minutes of clever 
 preliminary acting, he bowed gravely to the 
 Court, and began his classic, ornate, address to 
 the "gentlemen of the jury." 
 
 George M. Wharton, also of the Philadelphia 
 bar, in another way exemplified the difference 
 between past and present. In looks and size he 
 was not unlike Napoleon. So gentle, and yet so 
 keen — so deep, and yet so clear; and strong, 
 without any rage, whether addressing a court or 
 jury. With a gentle and graceful gesticulation, 
 his voice was pitched so that every word was 
 heard without a loud or dissonant sound, and 
 the copious accents of legal knowledge flowed 
 from his lips and found lodgment in every listener. 
 No modern lawyer is apparently satisfied with 
 
30 THE AMERICAN LAWYER. 
 
 himself unless he can shout and use passionate 
 or furious gestures. And after "a great physi- 
 cal" effort (as some wit has justly pronounced 
 it) of voice and body, and not brains, he is often 
 encouraged by an admiring client, or audience, who 
 acclaim it "a great speech," an "eloquent presen- 
 tation!" To such base uses truly have we come! 
 
 I refer to Mr. X. of New York as one of the 
 best illustrations of the modern lawyer — neither 
 an eloquent nor finished speaker, classical scholar, 
 nor profound lawyer, and yet having elements 
 of all of these; and, what is greatest, a mind 
 pre-eminently distinguishable for its practical 
 ability to master details, and to evoke clear busi- 
 ness results from complicated conditions: crisp, 
 sharp, and quick. 
 
 The judges now give an advocate hardly time 
 to clear his throat, but brusquely inform him 
 that he may have twenty minutes, half an hour, 
 or an hour, as circumstances demand. To ex- 
 pect classic eloquence under such conditions 
 would be altogether absurd. Alas! there are 
 too many cases on the calendar now; too many 
 impatient jurors; too much business; to tolerate 
 rhetoric! Of course I do not forget the never- 
 failing tendency of lawyers to talk in infinitum. 
 It has always been necessary to check them. 
 In all ages the habit to talk illimitably has ex- 
 isted. Hardly a lawyer ever believes he has 
 
PAST AND PRESENT LAWYERS. 31 
 
 said enough. Still, the modern jury lawyer makes 
 the most of his time. He bangs away at the facts 
 regardless of logic, order, rhetoric, or anything 
 really oratorical ; he simply hammers into his half- 
 hour limit, in tones of thunder, or of slick and 
 measured entreaty, or by violent denunciation or 
 inflammatory appeals, or in a calm and seductive 
 voice, all that he has to say. He uses just those 
 particular weapons which will catch the jurors; 
 and how can you blame him for not imitating 
 David Paul Brown? Circumstances truly alter 
 cases. Of course I am speaking of civil trials. 
 In criminal cases there is still room for real and 
 effective oratory. It is sometimes heard. 
 
 The truth is that the profession of the law, as 
 a purely intellectual and classic, and, I may add, 
 scientific pursuit, reached its zenith — its Augustan 
 Era — at the commencement of the Civil War. 
 It is not to be expected that lawyers should 
 escape the influence of a war, which, as a first 
 consequence, closed the era of pure constitutional 
 discussion. That discussion, in its great aspects, 
 had been kept alive by the friction between the 
 States, and it was the most august function of 
 the lawyer, both in the courts and the legisla- 
 tures, to engage authoritatively in it. When 
 that mode of controversy was superseded by arms, 
 the noblest of his functions — the very head and 
 front — were gone. 
 
32 THE AMERICAN LAWYER. 
 
 As a great scholar and lawyer wrote to me in 
 commenting upon the difference between past 
 and present: 
 
 "A sense of changed conditions spread 
 over everything. The conscience of the Na- 
 tion was merged in the pride and glory of 
 successful war. The sensitiveness as to the 
 intellectual value of high legal attainment 
 and effort was lost with the circumstances 
 which had made them necessary. Then came 
 the influx of wealth, the creation of new 
 sources of prosperity and power, the grow- 
 ing sense of empire. As opposed to these, 
 the Bar presented the spectacle of distinct 
 bodies of men who, however deserving, had 
 been shorn of their highest centralizing mo- 
 tive, who were without a local center as in 
 England, but were split up into parts often 
 incongruous, mere fractions of many sepa- 
 rate communities, every day becoming more 
 numerous." 
 
 Slowly and noiselessly as the falling tide, the 
 change set in, until, gradually and imperceptibly, 
 the lawyer has been deprived of most of those 
 splendid qualities, which once made his office so 
 illustrious in the land. 
 
 Wealth has stolen his social position; intellec- 
 tual and scholastic attainments no longer win — 
 because they are rarely found combined with a 
 practical and adaptable mind; the cultivation of 
 
PAST AND PRESENT LAWYERS. 33 
 
 eloquence has fallen into desuetude; much of his 
 professional occupation and emoluments have 
 been taken from him by combinations largely 
 composed of laymen, by "Title Searching" com- 
 panies, and collection and other mere business 
 agencies, whose principal alleged merit towards 
 the community is cheapness; and the lawyer 
 stands before the community shorn of his pres- 
 tige, clothed in the unattractive garb of a mere 
 commercial agent — a flexible and convenient go- 
 between, often cultivating every kind of equivo- 
 cal quality as the means of success, rather than a 
 deep and accurate knowledge of the principles of 
 jurisprudence — but always an exceptionally good 
 business man. 
 
 The change in the legal profession, in the char- 
 acter, influence, and position of the lawyer, are 
 more vividly illustrated in the large cities of the 
 country. In the rural districts some traces of 
 old professional life still exist, but even there 
 the old guard of lawyers is succumbing to the 
 influences which have wrought the change else- 
 where, and is disappearing behind the hills of 
 the past like a setting sun. 
 
 I do not mean to broadly assert that the calling 
 of a lawyer has lost all of its honorableness, or 
 that his general influence has been entirely dis- 
 sipated. I affirm, however, that his aristocratic 
 and social prestige has disappeared; that his. 
 
34 THE AMERICAN LAWYER. 
 
 moral and intellectual standard has been lowered, 
 and that the natural and legitimate influence, 
 which his office entitles him to wield, no longer 
 exists in its proper vigor. Since the war, a deep 
 and profound gulf has been made between the 
 past and the present; and out of the prolific 
 womb of national life, a new legal epoch has been 
 born; a new race of lawyers, different in educa- 
 tion, manners, and thought from our legal ances- 
 tors, has sprung up, lacking the dignity, learning, 
 and influence, which the old regime possessed. 
 
CHAPTER IV. 
 
 THE PRESS, THE STAGE, THE LITERATURE, AND 
 THE BAR, SINCE THE CIVIL WAR. 
 
 New epochs in national life, in the habits, man- 
 ners, and morals of the people, are not ushered in 
 to the sound of trumpets and martial music, or 
 by written declarations or proclamations as polit- 
 ical principles sometimes are, — like Magna Charta 
 and the Declaration of Independence. They 
 cannot be traced to a certain time and place, but 
 noiselessly and gradually grow out of prevailing 
 conditions of commercial, social, and political 
 life, — evolution. No one can accurately fix the 
 birth of national habits, and it is only when they 
 are fastened upon us, like the parasite upon the 
 tree, that we are deeply aroused to their existence. 
 
 It cannot be overlooked that the new historical 
 era, inaugurated in this country by the Civil War, 
 was followed by changes of the most radical na- 
 ture, not only in the national characteristics, 
 manners, and habits of the people, but in all pro- 
 fessions, trades, and businesses, and noticeably 
 
 35 
 
36 THE AMERICAN LAWYER. 
 
 so in the professions of law, journalism, histrionic 
 art, and in general literature. As I have said, 
 the organs of public opinion, like those of the 
 body, are generally sympathetic. What affects 
 the one, quickly communicates itself to the others. 
 
 It may at least serve the purpose of an illus- 
 tration of the changes which have come over us, 
 of the Bar, to advert to the Press, the Stage, and 
 Literature, because a brief comparison between 
 these last-named occupations, before and after 
 the war, furnishes a proper analogy and prelude 
 to a study of the condition of the legal profession. 
 
 Contrasted with those of forty years ago, the 
 newspapers are almost unrecognizable. They are 
 now huge, illustrated, pictorial magazines, daily 
 chronicling all the events of the world, with more 
 or less accuracy — running the whole gamut of 
 human and divine affairs — entering, with fiend- 
 ish glee, into the minutest details of social and 
 domestic life, and then sold for a mere song. 
 The reader is furnished daily with not only a 
 full statement of the doings of the whole world, 
 because the throbbings of the telegraph give 
 out every minute the news from all quarters 
 of the globe, but he has photographs of the prin- 
 cipal actors in these occurrences, — accompanied 
 by graphic pictures of the events, — and this huge 
 journal is placed, in a metropolis, every morning, 
 upon the breakfast table. The avidity for news 
 
THE PRESS, THE STAGE, THE LITERATURE. 37 
 
 is ravenous. It is part of our business to know- 
 whatever anybody has done, or is going to do. 
 
 The editorial has given way to the news column. 
 The genius and talents of the newspaper writers, 
 however, have by no means vanished. Im- 
 promptu productions frequently appear, in the 
 daily and weekly press, which are strikingly bril- 
 liant and clever, and which will not unfavorably 
 compare, as mere writings, with the choicest 
 morsels of the best classic writers. Wit and 
 humor also abound in the press, inimitable and 
 illimitable, if not always Attic. Advertisements 
 are seduced from the shopkeepers and business 
 community by a large circulation, and the large 
 circulation is gained by portraying, in sensational 
 colors, every event calculated to attract the notice, 
 tickle the humor or fancies, or arouse the pas- 
 sions, of the masses. The central aim of the 
 newspaper proprietor, however, is to make money, 
 through the advertisement columns, and the real 
 purpose of journalism, alas, becomes subordi- 
 nated to the greed of the age — "put money in 
 thy purse." The personality of the newspaper 
 owner never appears. His genius is reflected 
 in the advertising columns. 
 
 The most striking feature of the modern news- 
 paper is its diversified occupation. Its function 
 is no longer simply confined to printing news and 
 animadverting upon public questions — it is no 
 
38 THE AMERICAN LAWYER. 
 
 longer a guide and a teacher. A newspaper is 
 now an institution — the head of which is a "busi- 
 ness manager." It promotes all kinds of chari- 
 ties, eleemosynary and other public works — it 
 gives and collects vast sums of money for these 
 purposes — it awards prizes — it establishes na- 
 tional landmarks — it is an intelligence office and 
 detective bureau. The journals outvie with each 
 other in their advocacy, and financial support, 
 of philanthropic measures. They furnish the 
 sick and fever-heated needy with ice, and the 
 hungry with soup; they establish summer and 
 winter homes for the poor, and perform mani- 
 fold deeds of genuine benevolence. They hunt 
 down criminals and boldly usurp every duty of 
 the district attorney, magistrate, and policeman, 
 and espouse the rights of the public in the civil 
 courts of justice. A newspaper as thus con- 
 ducted is a bureau, not a journal! — a self -estab- 
 lished, self-supporting newspaper, literary, politi- 
 cal, sporting, and miscellaneous bureau! — put 
 in motion by individuals to make money, and 
 often to advance personal and political interests. 
 It must be admitted, however, that in their 
 manifold undertakings the newspapers are not 
 always inspired by the true spirit of charity or 
 justice. The right hand not only knoweth what 
 the left hand doeth, but the whole body is advised 
 thereof, and the plans and details are blazoned 
 
THE PRESS, THE STAGE, THE LITERATURE. 39 
 
 out, and "trumpet tongued" to the world. They 
 make lavish and ostentatious gifts, and in this 
 and a thousand other ways abuse their power 
 by hounding the public into doing likewise — or 
 seduce contributions from them by tickling their 
 vanity, and parading the names of the donors in 
 conspicuous parts of the paper. Individual se- 
 curity, if not often directly invaded, is still felt 
 to be held by a kind of sufferance. And the 
 privacy and sacredness of domestic life! It is 
 an open book; I need not speak of it. An im- 
 mense capital is now required to conduct one of 
 these metropolitan bureaus, and no matter how 
 brilliant, talented, and eloquent a writer may be, 
 without great financial resources, it is practically 
 impossible for him to establish and maintain a 
 newspaper. 
 
 The effect of the change in journalism, of its 
 departure from the real and noble purposes of 
 the Press, has been, gradually, to weaken its 
 influence with the people upon many public 
 questions. Its opinions and conclusions are be- 
 coming gradually less effective, its utterances are 
 looked upon with amusement or suspicion; its 
 wails and shrieks, and death-like headlines, have 
 become so frequent, that they are fatiguing. 
 The readers, satiated with sensationalism, treat 
 the recommendations of the journals with a feel- 
 ing akin to contempt. It is natural that when 
 
40 THE AMERICAN LAWYER. 
 
 a community discovers that newspapers discuss 
 public questions for the pure pecuniary benefit 
 of their owners, they must lose all moral force 
 as leaders or teachers of public thought. In a 
 word, the newspapers are transformed into ad- 
 vertising bureaus. The aim of the proprietor is 
 to catch the advertisers — that of the advertisers 
 is to catch the public. 
 
 The "theatrical world" also discloses radical 
 changes. The stage, in its pristine condition, 
 should be one of the most powerful organs of pub- 
 lic opinion. In its proper sphere, it holds up to 
 approbation the lives and acts of virtue, and 
 directly or indirectly, through the terrible weap- 
 ons of ridicule, satire, or wit, condemns vice and 
 maintains the supremacy of the law. The new 
 drama is almost entirely realistic and sensational. 
 There are many exceptions, of course, but even 
 they have not wholly escaped from the prevail- 
 ing influence. The ability, genius, talent, of the 
 actors, exist, but an apprentice to the stage who 
 wished to make money — to be popular — would 
 hardly neglect to cultivate dancing and singing 
 as principal accomplishments for his profession. 
 And who goes to the theater to study pure Eng- 
 lish? In the main, and as the rule, literature 
 and poetry, the chief glories of the drama, have 
 been entirely divorced from it. In going to a 
 theater, the best we can hope to see is some ad- 
 
THE PRESS, THE STAGE, THE LITERATURE. 41 
 
 mirably 'arranged spectacular effect, which is 
 expected to compensate for any poverty of higher 
 attributes in the actor or the author. The actor 
 has hardly a distinctive chance to shine. Shakes- 
 peare cannot any longer stand on his own un- 
 aided merits; he must be tricked out with the 
 appliances of modern "art" before he can be 
 made to "draw." Descending lower, we have 
 something in comparison with which the rudest 
 Thespian buffoonery of the ancient time was 
 respectable and interesting. Need it be speci- 
 fied? Acrobatic feats, trivial puns, vulgar wit- 
 ticisms, and a senseless display of tumbling, 
 tossing, and shuffling upon the stage — tragedy, 
 comedy, and vaudeville, all hopelessly mingled 
 together — which tend to convert the actors into 
 clowns. The sensual and material tendencies 
 of the age are nowhere more strikingly illustrated 
 than on the stage. But the theatrical manager 
 knows the public taste. He must "hit" that 
 taste between wind and water. And the beauti- 
 ful, majestic, ennobling thoughts of a dramatic 
 author, filled with an ambition to do something 
 real for his age, are frequently consigned to the 
 flames, or the waste-paper basket. 
 
 Lastly, comes general literature, belles-lettres, 
 closely following prevailing fashions and habits. 
 
 Myriads of books and periodicals are yearly 
 turned out upon the world, covering almost every 
 
42 THE AMERICAN LAWYER. 
 
 conceivable theme of human thought. The great, 
 leading characteristics of these productions is 
 the effort to say something new, or to say it in 
 such a way that it may appear to be new. It is 
 one of the wonders of the age to see how many 
 men and women have devoted themselves to 
 writing books. It is no longer a question of 
 learning, but one of "knack," to be an author. 
 When Madame Leo Hunter gave her fete cham- 
 petre, Dickens recounts with inimitable humor, 
 that there were congregated in an acre lot, nearly 
 all of the authors of the day. To see one author in 
 those days was a sight to be remembered; but 
 Pickwick had the felicity to mingle with, and talk 
 to, all of them in a morning — all real authors! 
 History, geography, and science are ransacked 
 to furnish material which, tortured into a thousand 
 shapes, may yield the requisite attraction to 
 insure notoriety and profit. We may admire 
 the ingenuity displayed in all this, but does the 
 merit of it rise higher? The solid basis of a classic 
 taste, judgment tempering into sobriety, expres- 
 sion, and invention, the desire to improve (a kind 
 of religion in the mind of the writer) by adding 
 something genuine to the scope of human sym- 
 pathy and knowledge, are now only incidental 
 and very rare. The whole character of that 
 species of writing which so largely influences the 
 mental habitudes may be roughly summed up 
 
THE PRESS, THE STAGE, THE LITERATURE. 43 
 
 by the word "sensational"; but it has many 
 degrees and many shades and is by no means con- 
 fined to mere purely imaginative productions. 
 It affects the Pulpit, and, as we have shown, the 
 Press; it even invades the scientific. The pub- 
 lic yields to the fascination, and, while they toss 
 the books aside, carry the tastes they form, and 
 the standards they' impress, abroad with them 
 into thought and action. The few who cherish 
 better models are so much at a discount that 
 ordinarily they shrink from obtruding them, 
 fearing a controversy in which they cannot con- 
 vince, and can only feel themselves degraded. 
 
 A singular evidence of the decline of the true 
 aesthetic faculty is the little encouragement given 
 to Poetry of the highest order; yet it is certain 
 that without great poetry there can be no great 
 literature. Much poetry has undoubtedly been 
 written in these days, and much of it is good; 
 but it has ceased to be a thing which men take 
 to their "business and bosoms." 
 
 A practical thought, in view of the multiplicity 
 of these productions, is the extremely low price 
 of paper, and the improvement in the art of type- 
 setting machinery, which enable newspapers and 
 books to be published, at a price, fabulously low. 
 
 If the price of paper were raised to ten cents 
 a pound, one-half of the world of literature would 
 disappear in the abyss of time, modern litera- 
 
44 THE AMERICAN LAWYER. 
 
 ture would receive a deadly blow — and shall I 
 say, the people an untold blessing? And what 
 is the responsibility of the publishers for this 
 condition? The classic publishers! who dote 
 upon the best models of English literature! The 
 same remark applies to them as to the theatrical 
 managers, and the owners of newspapers. They 
 feed the public with the food they relish — and 
 give them plenty for their money. 
 
 The moral sense — the conscience of a nation — 
 is exposed through public opinion. The barome- 
 ters which reveal the moral, social, political, and 
 intellectual condition of a people, are the great 
 organs of which I have spoken. 
 
 As they are, so are the people. These organs 
 are their faithful representatives. They change 
 with the habits and thoughts of the people. In 
 these days they rarely lead and make public 
 opinions, — they oftener follow it. They are usu- 
 ally reflective and not creative forces. There is 
 very little see-sawing between the Press, Stage, 
 and Literature, and the People. They are gen- 
 erally upon an even keel. If public conscience 
 is healthy, the Pulpit, Press, and Stage are likely 
 to be healthy; if it is abnormal or diseased, they 
 are apt to be demoralized or sick. 
 
 Critics who assume to rise above the surface of 
 things, are constantly saying: "Look at the Press 
 —how low and degraded." "Behold the de- 
 
THE PRESS, THE STAGE, THE LITERATURE. 45 
 
 praved condition of the Stage." "The Bar, 
 intellectually and morally, is not what it was 
 once." "Even the Pulpit is demoralized." 
 
 But such critics are simply inviting the people 
 to look at themselves. These great organs gen- 
 erally hold up a faithful mirror of prevailing cul- 
 ture, tastes, fashions, morals, and habits. They 
 are too clever and skillful to be out of tune with 
 public conscience and taste. They give the peo- 
 ple exactly what they demand. They are low 
 and coarse, and unfaithful to their true missions, 
 only when the people require them to be so. 
 
 Returning to the law. It would seem quite 
 unnatural, if striking changes should not have 
 crept into that profession. It was as quick, as 
 the other organs of public opinion, to adapt itself 
 to the demands of new conditions. 
 
 One of the first changes, in the practice of the 
 law, was created inside of the profession itself. 
 More than thirty years ago, a few lawyers organ- 
 ized a company, to search or investigate titles, 
 and facilitate the transfers of real estate, for a 
 fee incomparably lower than that charged by a 
 considerable body of the profession, who were 
 known as "Conveyancers." Later, other com- 
 panies were formed, until the entire business re- 
 lating to titles, and transfers of real estate, has 
 passed from the hands of individual lawyers into 
 these companies. Title companies were incor- 
 
46 THE AMERICAN LAWYER. 
 
 porated to examine the titles to real estate, and 
 other companies to manage decedent and trust 
 estates; agencies were organized to collect all 
 kinds of mercantile accounts, and other combi- 
 nations were formed to do general legal business. 
 These corporations, or combinations, these legal 
 "trusts," created to transact, by wholesale, all 
 kinds of law business, formerly performed by 
 individual members of the Bar, have at length 
 absorbed a very large share of the lawyer's for- 
 mer work, and gradually driven him into other 
 fields of employment. The characteristics of 
 the lawyers changed, with the change in their 
 occupation. From "Attorneys and Counselors 
 at Law" they became agents, solicitors, practical 
 promoters, and commercial operators. They at- 
 tached themselves to all kinds of corporations, 
 as officers and directors. Entering the offices of 
 some of the law firms in a metropolitan city, 
 one imagines that he is in a commercial counting- 
 room, or banking department. Nothing can bet- 
 ter illustrate the change of the profession. Most 
 of the intellectual and professional glamour of 
 the Bar has flown, and law has become a business. 
 It is the boast of some legal firms that their mere 
 office expenses run over fifty thousand dollars a 
 year. The "outdoor" or office business of the 
 lawyer has become the most profitable; and 
 colossal fees, as commissions, are often paid to 
 
THE PRESS, THE STAGE, THE LITERATURE. 47 
 
 them, upon the successful close of financial and 
 business operations, in which no litigation is in- 
 volved. A vast contingent business has been 
 inaugurated. One lawyer received more than a 
 million of dollars as a contingent reward; and a 
 fee of one hundred thousand dollars is no longer 
 regarded with astonishment. In many trans- 
 actions the lawyers are half bankers and half 
 lawyers. Of course, the inevitable effect of these 
 employments, is to remove the lawyer far away 
 from his technical and intellectual pursuits, to 
 change his habits, and to cause him to forget, or 
 neglect, the true mission of his profession. 
 
 Thousands of lawyers seek livelihood and prom- 
 inence in political life, and the offices cannot be 
 created fast enough for them to fill. Some enter 
 politics to advertise themselves; others because 
 they cannot gain a livelihood in any other 
 manner. 
 
 Political, social, and business associations are 
 often more cultivated, by the young lawyers, than 
 a knowledge of jurisprudence. Through the door 
 of politics most American lawyers reach the Bench. 
 The fact constitutes, perhaps, one of the most de- 
 moralizing influences of the age. It is known, 
 talked of, criticised and yet tolerated, if not sanc- 
 tioned, by the voters. Vehement protests are 
 from time to time made against it, but in vain. 
 
 The people do not seem to comprehend the 
 
48 THE AMERICAN LAWYER. 
 
 seriousness of the practice, or if they do they are 
 indifferent. In general the best equipped lawyer, 
 in character and learning, has no more chance 
 to become a judge, without political influences, 
 than he has to turn water into wine. The people 
 are the eventual sufferers, because while some 
 good men are chosen, the majority have not the 
 necessary accomplishments, or a proper concep- 
 tion of their duties. Law then becomes more 
 or less a chance, and delays and other manifest 
 evils supervene, for all of which the people even- 
 tually suffer. Its demoralizing influence upon the 
 bar is indescribable. It lowers the respect which 
 lawyers should have for the judges. It removes 
 all incentive to study and real ambition. But 
 beyond all of these things, it shows that the com- 
 bined influence of the bar, is not strong enough, 
 to correct an evil which destroys its own pres- 
 tige and morale. Lawyers become schemers and 
 office-seekers. They neither demand, nor care 
 for, the approbation of their brethren of the bar. 
 The qualities of audacity and immodesty, sup- 
 plant those of learning and fitness. The man 
 with real accomplishments, refuses to enter into 
 a contest for the judgeship, and the race is nar- 
 rowed down to those who are willing to pro- 
 claim most loudly, their own merits, and spend 
 their time in pulling the party ropes. 
 If a lawyer can obtain judicial position, by 
 
THE PRESS, THE STAGE, THE LITERATURE. 49 
 
 attaching himself to a political organization, 
 why should he take the more rugged, trying, and 
 uncertain path to professional glory by hard 
 and laborious legal study and cultivation? If 
 the lawyer can obtain clients by becoming a 
 member of a social, or political club, or church, 
 of a civic, or eleemosynary association, why 
 should he weary his brain and mental faculties 
 with profound or steady intellectual occupation? 
 
 If he can obtain references, receiverships, and 
 patronage by cultivating the Judges, instead of 
 tying himself to books, why should he not become 
 the inseparable companion of some friendly Judge? 
 
 I am endeavoring to show what a lawyer is 
 to-day. The difference between what he is, 
 and what he should be, is as wide as the ocean. 
 What he should be, is the never to be realized ideal; 
 what he is — the always existing actual. We must 
 study both. Keeping them in open juxtaposition 
 is the only real means to advancement and reform. 
 
 In the selection of judges, I believe the evils 
 could be largely reduced by holding separate elec- 
 tions for the Judiciary. The question of the fit- 
 ness and character of each candidate could then be, 
 independently, examined. As it is now, the elec- 
 tions are general, and the merits of judicial nomi- 
 nees are lost sight of under, what are regarded as, 
 more important issues. 
 
 D 
 
CHAPTER V. 
 
 THE EDUCATION OF THE LAWYER, AND THE CON- 
 DITIONS UNDER WHICH HE IS AUTHORIZED TO 
 PRACTICE, AND HIS OATH. 
 
 To judge of the quality of our lawyers, to use 
 a commercial phrase, it is necessary to know of 
 what, and how, they are made; to know the 
 course of studies they pursue before they are 
 admitted to practice. As the lawyer is trained, 
 so he grows. To produce lawyers who can per- 
 form their duties, they should be taught to culti- 
 vate a moral sense; the nature and object of law; 
 the nature and duties of citizenship; the nature 
 and duties of a legislator; but above and beyond 
 everything else, they should be taught the real 
 mission of the lawyer — which includes profes- 
 sional ethics. These fundamental requisites to 
 the making of a full lawyer are almost entirely 
 overlooked in all of the courses of education 
 followed in law offices, law schools, and acade- 
 mies or colleges. Lawyers are made up to be 
 mere instruments for their clients, without any 
 50 
 
THE EDUCATION OF THE LAWYER. 51 
 
 attention being paid to their duties to the State. 
 The fact is extraordinary, nay, incredible. But 
 it is true. One cannot blame the professors. 
 The curriculum of legal study is based upon codi- 
 fication. I mean the sentiment of codification, 
 pervades and influences all legal education. A 
 candidate, through the ordinary course of pre- 
 liminary legal study, knows nothing of moral 
 philosophy, professional ethics, or the mission 
 of a lawyer. Neither Paley, Austin, Savigny, 
 Kant, Domat, Burlamaqui, Montesquieu, Pothier 
 — nor even Blackstone — except in a fragmentary 
 manner — or any other book or course of studies 
 calculated to impart the above fundamental 
 knowledge — is studied as part of the curriculum, 
 and rarely at all. 1 
 
 "To the student who begins the study of 
 English Law, without some previous knowl- 
 edge of the rationale of law, in general, it 
 naturally appears an assemblage of arbitrary 
 and unconnected rules. But if he approached 
 it with a well-grounded knowledge, of the 
 general principles of jurisprudence, and with 
 a map of a body of law distinctly impressed 
 upon his mind, he might obtain a clear con- 
 ception of it, as a system, or organic whole, 
 with comparative ease and rapidity." 2 
 
 i See in this connection Chap- 2 Austin's Lectures, III 362. 
 
 ter X, where remedies are dis- 
 cussed. 
 
52 THE AMERICAN LAWYER. 
 
 In like manner, Mr. Phillips in his able and in- 
 dependent discussion of Jurisprudence says: 1 
 
 "I firmly believe that the intolerable arid- 
 ity, usually attributed to legal study, is 
 entirely due to the infatuation with which 
 the student usually persists in exploring the 
 details of his science, before he comprehends 
 its outlines. What every jurist has first to 
 do, is to make himself master, not of the law 
 itself, which may be pernicious and must be 
 imperfect, but of that great system of jural 
 problems which forms the framework of all 
 law, and which, as it arises out of the con- 
 ditions of human existence, must retain its 
 importance while the human race survives. 
 Let him once clearly perceive how these ques- 
 tions have become necessary and how they 
 are connected with each other, and he will 
 have little difficulty in understanding and 
 criticising the various solutions of which they 
 are capable. Let him once thoroughly com- 
 prehend what is to be clone, and the inquiry 
 how it has been done will become an easy 
 one." 
 
 Let one more quotation, embodying the au- 
 thority of Prof. Sheldon Amos, describe, in his 
 own vigorous and graphic language, the general 
 perplexity and confusion of the young student 
 of English law arising from the lack of clear 
 scientific guidance: 
 
 1 Phillips' Jurisprudence, 26, 27. 
 
THE EDUCATION OF THE LAWYER. 53 
 
 "It cannot be surprising," he says, "if the 
 young English student approaches the Science 
 of Jurisprudence with somewhat of a quiver- 
 ing heart and trembling gait. He knows not 
 where he is going, and is not quite sure 
 whether he is going, or wanting to go, any- 
 where. He thirsts for something broader, 
 deeper, more indestructible than anything he 
 can find in Text Books of English Law, or in 
 the successive modifications in the substance 
 of law itself. 
 
 " He hears of 'Jurisprudence' and he has a 
 dim hope, that what he is in search of, may 
 perchance be there. He draws near, and in 
 place of a science, or a systematic exhibition 
 of what is universal and everlasting, he is of- 
 ten enough regaled with nothing more satis- 
 factory than a story of incessant change, the 
 dreary register of meaningless variety, the 
 loose guesses of politicians and moralists, the 
 reckless verbiage of those who have studied 
 just law enough to confuse the spontaneous 
 workings of their conscience, and yet who 
 affect just sensitiveness enough of conscience 
 to interfere with their unflinching interpreta- 
 tion of a single law." 1 
 
 A candidate for the Bar must, before admission, 
 
 i Systematic View of the Science Civil Law," and the "History of 
 
 of Jurisprudence, page 508. I am European Law " are given by a 
 
 glad to say, however, that in the very competent person, Professor 
 
 course of instruction of the Colum- Munroe Smith. But it is subordi- 
 
 bian University lectures upon the nate and collateral, and for want 
 
 "Elements of Law," "Modern of time inadequately appreciated. 
 
54 THE AMERICAN LAWYER. 
 
 be a citizen of the State in which he applies to 
 practice, and of the United States. He must be 
 of legal age, and possess certain moral and edu- 
 cational qualifications, which are the sine qua 
 non to admission everywhere. Moral character 
 means, as intimated, an ability to show, by a 
 certificate from third persons, that the candidate 
 is a fit person to be admitted to the Bar. A man 
 may have a good character, and yet know nothing 
 of the ethics and mission of the profession. The 
 general educational qualifications are ordinary. 
 A smattering of history, geography, grammar, 
 and Latin. 
 
 Besides these requisites, the applicant must 
 pass an examination before an examining board 
 of lawyers, or, in some States, produce a certifi- 
 cate from a law school or college. 
 
 Considering the relation which lawyers bear 
 to this Government, and the American people, 
 the examination for admission to the Bar, is super- 
 ficial. The applicant is only required to have 
 been an apprentice, for two or three years. It is 
 unnecessary, at this time, to criticise in detail 
 the curriculum. 1 Let it suffice that it is entirely 
 inadequate to produce a lawyer. The student 
 attends a course of lectures; skims through a 
 few legal works; is subjected to desultory ex- 
 aminations; crams himself for a final "quiz" 
 
 i See Post, Chap. X. 
 
THE EDUCATION OF THE LAWYER. 55 
 
 before the Examiners of the Court; and he is a 
 lawyer, and generally, moreover, without having 
 been under the care or tutelage of an active prac- 
 titioner. Modern methods of legal education 
 are akin to the age. Lawyers are machine made. 
 By a patented process, one can put a log of wood 
 in a machine, and it comes out a box of matches. 
 The aim of law schools and colleges is to manu- 
 facture the lawyers quickly. Hardly any of the 
 instructors or professors have any practical knowl- 
 edge of the profession. They are theorists and 
 students. They have no clinical experience. 
 They know almost nothing of the real office, and 
 mission of the lawyer. They are intelligent 
 enough — many of them savants — and remark- 
 ably bright men, withal; but each of them has 
 a large class of students on his hands, and the 
 sole aim is to carry it safely through the final 
 examination, and lawyers are manufactured en 
 bloc. When they first see the light of the pro- 
 fessional world, like new-born babes, they look 
 around in astonishment, and wonder why they are 
 brought into professional life so feebly equipped. 
 Young lawyers, therefore, start out in their 
 professional journey with a keen sense of their 
 own incompetency. The preliminary education 
 which they have received does not carry them 
 beyond the point of their examination, and when 
 they embark into actual professional work, they 
 
56 THE AMERICAN LAWYER. 
 
 have little — certainly no adequate — idea of the 
 functions, powers, and duties of the office, which 
 they have been licensed to hold. 
 
 The student must first obtain a license from 
 the court. No duly certified applicant can prac- 
 tice the profession of law without such a license, 
 based upon an oath, hereafter referred to. This 
 at once gives the lawyer an official position, in 
 his relation to the court and the community. 
 
 While any person may set himself up as a car- 
 penter, tailor, baker, agent, banker, or broker, or 
 pursue any other legal occupation (except that 
 of medicine, where a certificate, for obvious rea- 
 sons, is necessary), in any place, and on whatever 
 scale, he desires, 1 the policy of the law, as evi- 
 denced first by rules of the court, and afterwards 
 by statute, has at all times been to place limited 
 restrictions upon admissions to the Bar. 
 
 1 This was not always the law, Manuell Oocupacon, to set uppe 
 
 for anciently, as will be seen by occupie use or exercise anye 
 
 the Statute which I quote, all Crafte Misterye or Occupacon, 
 
 persons practicing any occupa- nowe used or occupied within 
 
 tion were required to serve an the Realm of Englande or Wales, 
 
 apprenticeship. Stat. 5, Eliz., Except he shall have been brought 
 
 Chap. 4 (1562-63), Sec. XXIV, uppe therein Seaven Yeares at 
 
 is as follows: the least as Apprentice, in maner 
 
 "And be it further enacted by and fourme aforesaid, nor to set 
 the authoritie aforesaid, that anye person or woorck in suche 
 after the first daye of Maie next Misterye Arte or Occupacon, be- 
 coming, it shall not bee lawful ing not a worchman at this daye 
 for any pson or psons, other than except he shall have been Appren- 
 such as doo now lawfully use or tice as ys aforesaid, orels having 
 exercise any Arte Misterye or served as an Apprentice as ys 
 
THE EDUCATION OF THE LAWYER. 57 
 
 Litigants and suitors, who might otherwise 
 justly complain, are authorized to represent 
 themselves, and to advocate their own causes — ■ 
 a privilege of which, with marked good sense, 
 they rarely avail themselves. 
 
 The profession of the lawyer, therefore, stands 
 out distinctly and separately distinguished from 
 other trades and occupations. He starts on his 
 professional career marked as an official — an 
 officer of the court. 
 
 The origin of this is clear, and the reason for it 
 is as strong to-day as when the office was first 
 created, viz: the lawyer was regarded as the 
 friend, the adviser, the associate, of the court, 
 and he became, as he is now styled (but for dif- 
 ferent purposes than those for which the distinc- 
 tion was first applied to him), "an officer of the 
 court," acting under the supervision and control 
 of the latter. The courts accordingly mark out 
 the qualifications of these officials — their own 
 officers. 
 
 In these days, when a lawyer is styled "an 
 officer of the court," it is generally in connection 
 with some effort to punish him for a dereliction 
 of duty, and this term is rarely, if ever, used in 
 its original and just sense, viz: to signify that he 
 
 aforesaid, shall or will become a shall forfeit and lose for every 
 
 Journeyman, or bee hired by the default fourtye Shillinges for 
 
 Yere; upon payne that willingly every monethe." 
 offending or dooing the contrary 
 
58 THE AMERICAN LAWYER. 
 
 is an officer to advise, aid, and assist the court in 
 the administration of justice. Indeed, the ten- 
 dency of the courts -everywhere is not to regard 
 the lawyer as an arm of the court, so much as 
 to hold him at arm's length — to treat him as one 
 ready and willing to accept, if not actually seek- 
 ing, rights to which he is not entitled, the effect 
 of which, upon the manners, culture, and esprit 
 de corps of the profession, can be readily imagined. 
 Still, the lawyers are officers of the court. They 
 may be said to always rest under the command 
 of the court. Undoubtedly they can always 
 be called upon to assist and aid the court. 
 
 Another feature of the subject is, that no re- 
 strictions are placed upon the number of lawyers 
 who may practice the profession. 
 
 So far as any demonstrated policy is concerned, 
 the public seems to be indifferent whether there 
 are five, or five hundred, or five hundred thousand 
 lawyers, in existence. This liberality has been 
 bountifully appreciated. The lawyers have in- 
 creased to such proportion, in every community, 
 that the profession is full to repletion. Still, they 
 are not any more numerous than they were at one 
 time in Naples. Addison is authority for a story 
 that when Innocent the Eleventh desired the 
 Marquis of Carpio, to furnish him with 30,000 
 head of swine, the Marquis answered him that 
 for his swine he could not spare them, but if his 
 
THE EDUCATION OF THE LAWYEK. 59 
 
 Holiness had occasion for 30,000 lawyers, he had 
 them at his service. 1 The Marquis must have 
 had a large estate! 
 
 Of course, the effect of turning out hordes of 
 legal incompetents, is as bad for the latter, as 
 for society. They both suffer. Hundreds of 
 lawyers, finding nothing to do, in a few years 
 seek other employments; many of them eke out 
 a meager and starving existence by filling clerk- 
 ships, and other subordinate positions, with 
 their more fortunate brethren; still others, lack- 
 ing the ability, or knowledge, to perform the work 
 intrusted to them, turn their professional labors 
 into a regular business and merchandise system, 
 by associations or partnerships, and various 
 other kinds of occupations. The enormous in- 
 crease in the number of corporations has been an 
 unlimited blessing to a certain class of lawyers. 
 These corporations have, through the influence 
 of nepotism, furnished a delightful haven to many 
 a lawyer, otherwise unequipped, with natural, 
 educational, or practical ability. The fact that 
 social or political influence, could secure him a 
 snug berth, in a corporate position, has frequently 
 been the sole incentive to his adoption of the legal 
 profession. 
 
 No statistics, I believe, have ever been made, 
 or suppositions drawn, as to the number of law- 
 
 i " Remarks on Italy," Vol. 2, p. 429. 
 
60 THE AMERICAN LAWYER. 
 
 yers necessarily required to transact the business 
 of the country; but it is generally agreed that 
 there are now vastly too many for such service; 
 that, in the language of political economy, the 
 supply very largely exceeds the demand. 
 
 No limit should, or perhaps could, ever be 
 placed upon the number of lawyers entitled to 
 practice, except by ordaining such rigid prelimi- 
 nary studies and qualifications as would act as a 
 deterrent. If candidates enrolling as legal ap- 
 prentices were fully convinced that to become 
 a lawyer meant serious study and application, 
 there would be fewer candidates. As long as a 
 course of study exists, which offers inducements 
 for individuals to become members of the Bar, 
 with a mere smattering of intellectual training, 
 the profession will be filled to repletion. There 
 are other concurring causes, of course. Young 
 ambition, the pride and vanity of parents and 
 friends, mistaken notions of the true nature of 
 the profession, all go to swell the ranks, so that 
 the gates are thrown wide open, and access made 
 easy, to the very class who are least qualified, 
 when they have passed through to admission, to 
 encounter the steep and stony paths that lead to 
 genuine success. My purpose at present is only 
 to draw attention to the effect of all this on the 
 community. As to its personal effect upon the 
 lives and fortunes of the aspirants, another book 
 
THE EDUCATION OF THE LAWYER. 
 
 61 
 
 might be written. It is enough to say that no 
 miseries are greater than those which follow the 
 mistaken choice of a profession. 
 
 The census shows that in 1850 there were 
 23,939 practicing lawyers in the United States; 
 and the table compiled from the same source 
 shows the following result in ensuing decades: 
 
 Year 
 
 Total 
 Population 
 
 Total Number 
 of Lawyers 
 
 Approximate Propor- 
 tion of Lawyers to 
 Population 
 
 1850 
 
 23,191,876 
 
 23,939 
 
 Say 1 to 1,000 
 
 1860 
 
 31,443,321 
 
 33,193 
 
 1 to 950 
 
 1870 
 
 38,558,371 
 
 40,736 
 
 1 to 945 
 
 1880 
 
 50,155,783 
 
 64,137 
 
 1 to 780 
 
 1890 
 
 62,622,250 
 
 89,630 
 
 1 to 687 
 
 1900 
 
 76,303,387 
 
 114,703 
 
 1 to 665 
 
 If the ratio keeps running as this table shows, 
 anyone can estimate the time, when there will 
 be a lawyer for each one hundred inhabitants. 
 It will be quite necessary, if the laws and decisions 
 accumulate with the same rapidity as they now 
 do. 
 
 The lawyer is launched into the community 
 without any compass to denote the course of his 
 professional career. He has a brevet to follow 
 any, or all, of the branches of jurisprudence, real 
 estate, commercial, maritime, patent, and crimi- 
 nal law. If his tastes and inclination permit, 
 he may also engage in any secular business, or 
 
62 THE AMERICAN LAWYER. 
 
 undertaking — either separately, or in conjunc- 
 tion with his law practice — a privilege very fre- 
 quently availed of, but I think to the discredit 
 of the profession. 
 
 The sphere of the lawyer's operations is limited, 
 or confined, to the State in which he is admitted, 
 and to the Federal Courts, if he be admitted 
 therein; although, as a matter of comity, he 
 frequently appears in courts outside of his own 
 State. 
 
 In the present inflated and complicated con- 
 dition of the law, it goes by the mere saying, 
 that any lawyer who has simply passed through 
 the formal system of study prescribed, and who 
 has been licensed to practice, cannot be presumed 
 to comprehend any of the principal branches of 
 the law. At best, he only acquires a smattering 
 of some of them. 
 
 It may be said on the other side, that nobody 
 is injured by this ignorance, because litigants do 
 not, as a rule, employ young lawyers, who fight 
 and struggle along many years before they attain 
 the full confidence of clients. But, as I shall 
 show, the lawyer's duties to the government are 
 of equal, if not of greater, importance than those 
 which he owes his clients, and to turn upon the 
 community hordes of incompetent practitioners 
 lowers the standard of the profession, deprives 
 the Bar of the learning and respect which are so 
 
THE EDUCATION OF THE LAWYEE. 63 
 
 necessary to enable it to defend and exercise its 
 proper position, and nullifies the influence which 
 it naturally possesses in private and public affairs. 
 
 Great talent and strong bias, towards the pro- 
 fession, in the individual may overcome all diffi- 
 culties, but these, with their results, can be 
 equally shown by the work accomplished previous 
 to examination. A professional morale in the 
 student, meeting with the same quality in those 
 who are delegated to examine, is quickly ascer- 
 tained and understood; but where the tendency 
 of the whole system is to produce a class of in- 
 competents, applicants and examining boards 
 standing on exactly the same level, the results 
 become obvious; with such an initiative, it is 
 vain to say that the evil corrects itself; that the 
 student's real education begins after admission. 
 The profession and the community alike (indeed, 
 in this respect they may be considered one and 
 the same interest) are entitled to some better 
 guarantee. 
 
 The oath which the lawyer takes before enter- 
 ing upon his official career is slightly different in 
 each of the States. This oath throws some light 
 upon the lawyer's real functions and duties. 
 The forms which are given below practically il- 
 lustrate those of all of the States, and of England 
 and France. 
 
64 the american lawyer. 
 
 United States Supreme Court. 
 
 I, ■ , do solemnly swear (or affirm, as 
 
 the case may be) that I will demean myself, as 
 an attorney and counselor of this Court, up- 
 rightly and according to law; and that I will sup- 
 port the Constitution of the United States. 
 
 New York. 
 
 I, , do solemnly swear (or affirm, as 
 
 the case may be) that I will support the Consti- 
 tution of the United States and the Constitution 
 of the State of New York; and that I will faith- 
 fully discharge the duties of the office of attorney 
 and counselor-at-law, according to the best of 
 
 my ability. 
 
 Pennsylvania. 
 
 You do swear (or affirm) that you will support 
 the Constitution of the United States and the 
 Constitution of this Commonwealth, and that 
 you will behave yourself in the office of Attorney 
 within this Court, according to the best of your 
 learning and ability, and with all good fidelity, 
 as well to the Court as to the client ; that you 
 will use no falsehood, nor delay any person's cause 
 for lucre or malice. 
 
 England. 
 
 I, , do swear that I will truly and 
 
 honestly demean myself in the practice of a So- 
 
THE EDUCATION OF THE LAWYER. 65 
 
 licitor according to the best of my knowledge 
 and ability, so help me God! 
 
 France. 
 
 In France, the Advocate's oath of office requires 
 him "de refuser les causes dont il connaitrait 
 l'iniquite." * 
 
 By the ancient laws of Scotland, it was required 
 that "advocates on the time of their admission, 
 and yearly, should be sworn to execute their office 
 of advocation diligently and truly; and that as 
 soon as they understood their client's cause to 
 be unjust or wrongful, they should incontinently 
 leave the same and desist from all further pur- 
 suit and defense." 2 And the law of Spain im- 
 posed upon them an oath that "they will conduct 
 themselves faithfully and will not defend unjust 
 causes." 3 
 
 The oath which he takes before the Supreme 
 Court, of the United States, binds him only to do 
 that which in conscience and law he is compelled 
 to do as a good citizen, viz.: to "demean myself 
 uprightly and according to law;" that of New 
 York, to "discharge the duties of the office of 
 Attorney and Counselor-at-Law, according to 
 
 1 " Usages et Regies de la Pro- 3 " Institutes of the Civil Law 
 fession dAvocat," etc., par M. of Spain," cited in O'Brien's Law- 
 Cresson, Vol. I, p. 17. yers. 
 
 2 Statutes of the Lords, 13th 
 June, 1537. 
 
 E 
 
66 THE AMERICAN LAWYER. 
 
 the best of my ability," is equally vague, because 
 the duties are not defined; that of Pennsylvania, 
 "with all good fidelity, as well to the Court as to 
 the Client; that you will use no falsehood, nor 
 delay any person's cause for lucre or malice," 
 throws a little more light upon the lawyer's 
 duties, and upon the opportunities he has to 
 use, disloyally and dishonestly, his office. The 
 Advocates' oath in France, to refuse cases which 
 he knows to be wrong, still further opens up the 
 subject. 
 
 But none of these formal oaths define the duties 
 of the lawyer; they neither explain his relations 
 to the court which licenses him, nor to his client, 
 nor to the community. All of these matters 
 are left to the imagination; and the young law- 
 yers, when they are turned upon the community, 
 must search elsewhere than in these oaths, to 
 discover the full measure of their duties. 
 
 While it is true that the courts, in the exercise 
 of their undoubted jurisdiction over lawyers, 
 can, and do, punish them for such flagrant acts 
 as, according to the customs, tastes, perceptions, 
 morals, and manners of the age, constitute dis- 
 honest or disloyal acts; yet, there is no code of 
 ethics, or rules, prepared which opens the subject 
 of the lawyer's manifold duties, and teaches him 
 the importance of the office he fills. 
 
 Everything is now left to the moral perception 
 
THE EDUCATION OF THE LAWYER. 67 
 
 of the lawyers, and the conscience of the courts; 
 and they are both groping in a wild and illimit- 
 able field of discretion, and necessarily of doubt. 1 
 
 1 I note with satisfaction that effect must be, necessarily, super- 
 
 the American Bar Association has ficial. Ethics must be taught to 
 
 taken up the subject of profes- the students as part of their pre- 
 
 sional ethics. Its agitation ought liminary education, 
 to awaken introspection; but its 
 
CHAPTER VI. 
 
 NATUEE OF LAWYER'S VOCATION. 
 
 The lawyer is called "an officer of the Court;" 
 but, as I have said, before, that term is, generally, 
 applied to him in modern times, when the Courts 
 wish, summarily, to reprimand, degrade, or pun- 
 ish him. The lawyer must be an "officer" to 
 justify summary measures against him, by the 
 Courts; otherwise it would be necessary to pro- 
 ceed against him by the regular course of judicial 
 procedure, as other persons are proceeded against 
 — in civil cases by summons ; in criminal offenses 
 by indictment. Originally, the courts called 
 upon their brethren of the bar to advise them. 
 In moments of need or doubt, the lawyer became 
 of great importance to the Judges. But I repeat, 
 in this connection, the courts have long since 
 ceased to regard him as a real, disinterested 
 friend, adviser and judicial adjunct. The law- 
 yers and the courts have been effectually divorced. 
 Still, the courts could, at any time, restore his 
 prestige, and take him, as it were, again to their 
 bosom, as a real official friend. 
 68 
 
NATURE OF LAWYER'S VOCATION. 69 
 
 While, as a supernumerary of the court, the 
 lawyer's vocation has been enfeebled, if not 
 totally destroyed, apart from this fact, he is an 
 officer of very great authority and power. 
 
 At the instance of a client, he becomes the offi- 
 cial author and creator of all judicial proceedings. 
 He is the fountain head from whose source all 
 legal processes flow. 
 
 The lawyer's mandate — the summons, writ, 
 or by whatever name the original process may 
 be called, commands the appearance in court 
 of the highest or lowliest individual in the land. 
 In New York the lawyer issues the original man- 
 date. His name, signed to a summons, is the 
 beginning of legal proceedings. 
 
 Apart from suitors themselves — who are per- 
 mitted to appear in their own cases — no judi- 
 cial action can be put in motion without the 
 sanction of some lawyer. He is the sole officer 
 authorized to cause a civil action to be begun. 
 If the lawyer approves the client's demand, he 
 can issue, or cause to be issued, process which 
 will bring into court the proudest millionaire, 
 the most powerful magnate, or the most influen- 
 tial citizen or corporation. The demand may 
 be unfounded, the action unjustified, the whole 
 proceeding utterly without merit, in law, or in 
 fact, yet the defendant must obey. A lawyer, 
 the day after he is admitted, the veriest tyro in 
 
70 THE AMERICAN LAWYER. 
 
 the profession may, without a tittle of justice or 
 right, summon the worthiest and purest indi- 
 vidual to answer the demands of a professional 
 blackmailer; and although after years, it may 
 be, of litigation, in which character, property, 
 and expense are involved, the suit is dismissed 
 as unfounded, yet the lawyer sits, serenely, in his 
 office, secure from liability, exempted from acts 
 which often, through his negligence or design, 
 have caused untold mischief and damage. His 
 ordinary mistakes of law, or judgment, cannot 
 be made the basis of a legal demand against him. 
 How many of such mistakes are made; how 
 many causeless actions are instituted, can be, 
 easily, computed by consulting the records of 
 the Courts — which show the number of suits 
 finally dismissed. 
 
 An individual who possesses powers like those 
 which I have described, is forsooth, an "officer," 
 and one whose authority is hardly exceeded by 
 that of any other official, known to any system 
 of government. Upon the ipse dixit, or judg- 
 ment of the lawyer, all suits are begun or de- 
 fended. 
 
 Inquiring into the origin of the lawyer's power, 
 we find that it arises from the necessities of politi- 
 cal organization. 
 
 The law is not automatic, or self-acting; it 
 rests dormant until some one sets its machinery 
 
NATURE OF LAWYER'S VOCATION. 71 
 
 in motion. A good definition of Law, in the ab- 
 stract, is that given by Hooker, — "that which 
 doth moderate the force and power, that which 
 doth appoint the form and measure of working, 
 the same we term a Law . . . the very- 
 being of God is a Law to his working." In the 
 concrete, as applied to political existence, it con- 
 sists of declarations, enunciated by the supreme 
 power of the State, of certain principles, or rules, 
 for human government. It says to its subjects 
 (as Blackstone puts it), "thou shalt or thou 
 shalt not do this or that thing." These rules 
 may be, and often are, violated both by indi- 
 viduals and communities, but until somebody 
 complains, a law is a mere brutum fulmen. Mur- 
 der goes unpunished if it is concealed; theft 
 escapes notice if no prosecutor appears; and 
 manifold civil rights are invaded where the party 
 injured seeks no redress from the courts. 
 
 Now, the official and authorized agents, who 
 put in motion the machinery of the law, are the 
 lawyers. 
 
 When we ascertain the reason and philosophy 
 of the subject, we begin to appreciate the full 
 scope of the lawyer's powers. 
 
 The law is naturally separated into two great 
 systems, — the criminal and the civil. 
 
 When a crime is committed, it is regarded as 
 an act aimed at the entire community, and so 
 
72 THE AMERICAN LAWYER. 
 
 soon as its existence is known, sworn officials, 
 such as policemen, constables, magistrates, sher- 
 iffs, coroners, and district attorneys, start the 
 wheels of justice which bring the offender to pun- 
 ishment. A crime inflicts a blow upon the 
 autonomy of the State. It strikes at the whole 
 people. 
 
 But when a civil injury is inflicted upon person 
 or property, the lawyers intervene and set the 
 machinery of the law in motion. 
 
 The "machinery of the law," does not only 
 mean the commencement of a suit, by the service 
 of process upon the delinquent, or offender — it 
 means all of the steps in the litigation — what 
 are known as the "orderly parts of a suit" — the 
 different stages, which litigants pass through, 
 before a final judicial settlement of their rights 
 is reached, viz: the summons which brings the 
 parties before the court; the complaint, or dec- 
 laration, the answer or plea, the issue, the trial, 
 the judgment, the appeal, the execution, and all 
 of the multiplicity of interlocutory and inter- 
 vening orders and proceedings, which are met 
 with in ordinary legal and equitable actions. 
 
 Wherever justice is administered, these orderly 
 parts of a suit, — this machinery of the law — must 
 exist. There always must be a complainant and 
 a defendant, a complaint and an answer, a hear- 
 ing and a decision, a judgment and execution. 
 
NATURE OF LAWYER'S VOCATION. 73 
 
 Even in a barbaric state, these forms are fol- 
 lowed, though in a primitive and summary way. 
 
 The orderly parts of a suit, therefore, are co- 
 eval with the administration of justice. 
 
 In a civilized community these forms are 
 nicely and delicately adjusted to each other, so 
 that they operate harmoniously together, and 
 they are designed and intended to produce as a 
 whole, exact justice between litigants, if the 
 machinery is properly and regularly run. 
 
 Hence these orderly steps in a suit, are necessary 
 and substantial parts of practical jurisprudence, 
 and although they are called the "forms" of the 
 law, they are absolutely essential to the correct 
 determination of legal controversies, and with- 
 out them, the law simply would be a bundle of 
 abstract principles, declaring rules for human 
 conduct, and directing their observance, but 
 without the necessary appendages for enforcing 
 them, unless by a relapse to methods purely 
 arbitrary. Without the ability to give an ade- 
 quate remedy to the parties injured, after a fair 
 hearing, the law would be nothing but a series 
 of insipid declarations. 
 
 Now, every motion of the wheels of form, 
 which run after they are set in motion, is regu- 
 lated and watched by the lawyers. They study 
 all of the intricate and delicate mechanism, 
 they arrange the movements, fast or slow, and, 
 
74 THE AMERICAN LAWYER. 
 
 like skillful workmen, they learn to direct, and 
 control, the whole course of the law. The legal 
 fencing, which is had under a Code, between the 
 institution of a suit and a Judgment, is amazing, 
 when one remembers that Courts exist to render 
 speedy and exact justice. The clients disappear, 
 and the lawyers come to the front, with their 
 motions and counter motions, until the real con- 
 troversy is lost sight of, in a cloud of technical 
 sparring and conflicts. 
 
 The foregoing suggestions introduce the law- 
 yer in his first great official relation to the com- 
 munity — standing between the Subject and the 
 Law. I use the word "Subject" advisedly, as 
 exactly describing the citizen, in his relation to 
 the Law; however much it may be the work of 
 his own creation. 
 
 Upon the lawyer's advice and judgment, the 
 law is put in motion. 
 
 He is primarily charged to determine, in ad- 
 vance, whether his client has a just claim or de- 
 fense. He is a kind of judge — preliminarily 
 inquiring into his client's rights and duties. 
 
 The moral responsibility of the lawyer becomes, 
 therefore, very great, and his office assumes an 
 importance which superficial inquiry would not 
 ascribe to it. Directly the machinery is set in mo- 
 tion by the lawyer, the suit becomes one of public 
 concern, no matter how small or great the amount, 
 
NATURE OF LAWYER'S VOCATION. 75 
 
 or principle, involved. A judge, or jury, eventu- 
 ally appears; all the forms of the law are involved 
 in the settlement, and the public are taxed for the 
 general expenses of the courts. The importance 
 of the whole subject to the lay community is ap- 
 parent from this purely material aspect of it. 
 
 In the commencement of suits, the lawyer has 
 need, therefore, of honesty, learning, prudence, 
 and patriotism. It rests with him to preserve 
 the purity of the legal system; to separate the 
 chaff of fraud, exaggeration and doubt, from the 
 wheat of fact and truth. For, if from ignorance, 
 dishonesty, or indifference, to the effects of his 
 action, he advises the commencement of an un- 
 just suit, or the evasion or denial of a legal claim, 
 he defeats the objects of the law, he prostitutes 
 its forms, and brings its administration into 
 contempt and disrepute. He poisons the foun- 
 tain of justice at its source, and the evil effects 
 are felt all through the body of the law. 
 
 Client and counsel become involved in a com- 
 mon atmosphere of suspicion, and a greater or 
 less degree of moral reprobation attaches to their 
 actions. In the ordinary judgments of men, it 
 is the law and lawyers that suffer most; to the 
 latter it brings a shallow reputation for clever- 
 ness, largely and sincerely blended with contempt; 
 to the former, a sense of its in adequacy to fulfill 
 its ordained purposes. Law is "humbug" — a 
 
76 THE AMEEICAN LAWYER. 
 
 mere game of chicane; the lawyer a cunning 
 scamp, not essentially different from other scamps, 
 except that he is better protected, and more to 
 be feared. 
 
 Sheltered in the garb of his office, the lawyer 
 can always, insidiously and secretly, deflect the 
 course of justice, and defraud the law. It is 
 hard to detect him; he is representing another's 
 interest, and is not responsible for his client's 
 morals or frauds. And both public policy, and 
 express statute, prohibit him from uttering one 
 word, passed in professional counsel. 
 
 The pleas, the defenses, the pretenses of the 
 client, are frequently the lawyer's own work, 
 but they are made in the name of the client, and 
 the lawyer's tracks and identity are swaUowed 
 up in the personality of the former. 
 
 The lawyer's opportunities for good and for 
 evil, are powerfully illustrated, in each and every 
 step, in a litigation. His education, his training, 
 his knowledge of the true objects, scope and 
 influence of his profession, are all brought into 
 play. 
 
 Is it not of paramount importance that indi- 
 viduals who are clothed with such extensive 
 powers, should be fully instructed, in all of their 
 duties and functions, before they are permitted to 
 exercise them? 
 
 Picture the baleful influence upon the law and 
 
NATURE OF LAWYER'S VOCATION. 77 
 
 society, of lawyers, clothed with so much power, 
 badly educated, ignorant of the principles of law, 
 and of the scope and objects of their profession, 
 with minds not elevated, not ennobled, by liberal 
 study or association! Picture the lawyers train- 
 ing themselves in a school of dishonesty, trickery, 
 and chicanery, diverting and stopping the ma- 
 chinery of the law, prostituting the forms of jus- 
 tice for gain, selling their knowledge, ability, 
 experience, and such talent as they may possess, 
 to the client who pays most for the service, and 
 resorting to every device of cunning and deceit, 
 to gain their end! Do such lawyers exist? Do 
 such practices prevail? Unfortunately, yes. In 
 the first rank, in the middle rank, in the lowest 
 rank of the profession, can be found many law- 
 yers whose services are sought only to enable 
 guilty men to escape punishment; only to open 
 a door for others to avoid the consequence of 
 the civil law, and of their contracts; only to de- 
 feat and evade the legislative will and public pol- 
 icy; only to show their clients how to cheat, de- 
 fraud, vilify, and defame, without penalty or 
 damage. 
 
 The formation of the Northern Securities Com- 
 pany under the laws of New Jersey, is a good illus- 
 tration of one phase of the subject. A great 
 moral responsibility rests upon the financial 
 promoters of that Company. I do not undertake 
 
78 THE AMERICAN LAWYER. 
 
 to measure or partition it. A consolidation 
 of the railroads, embraced in that scheme, under 
 the shallow pretense that the Northern Securities 
 Company was a mere holding Company, was 
 a clear attempt to evade the laws of the States 
 through which the roads ran, and against the gen- 
 eral public policy, and sentiment of the country. 
 
 The promoters sought to thwart the laws 
 of those States, by going to the State of New 
 Jersey, and organizing there. Not an individual 
 really interested in the affair resided in New 
 Jersey; not a penny's worth of property involved 
 was located there; not a dollar of actual busi- 
 ness was to be transacted there. The Anti- trust 
 law of the United States stared them in the face 
 in earnest protest against their acts; moreover, 
 there were several clear decisions of the Supreme 
 Court of the United States, which showed them 
 that their work was illegal. 1 Yet they perse- 
 vered, until their acts were overthrown by the 
 Supreme Court of the United States. The pro- 
 moters were, primarily, blamable in this mat- 
 ter, for they took their chances, hoping, 
 through the ingenuity of their lawyers, or the 
 slothfulness, neglect, or ignorance of public offi- 
 cials, to evade Statutes, and State and Federal 
 
 i U. S. v. Freight Assn., 166 Pipe & Steel Co. v. TJ. S., 175 U. 
 U. S. 290; U. S. v. Joint Traffic S. 211; and others not necessary 
 Assn., 171 U. S. 505; Addyston to quote. 
 
NATURE OF LAWYER'S VOCATION. 79 
 
 policy. The decision of the four Judges in the 
 lower court was unanimous against the North- 
 ern Securities Company, and although this judg- 
 ment was only ratified in the Supreme Court of 
 the United States by four votes against three — 
 thus giving some pretense, or color, to the original 
 scheme — yet this dissension would have been 
 avoided, if the case had been thoroughly pre- 
 sented, on the part of the Government — I do not 
 say it was inadequately presented by design — 
 far from it — but, vital aspects of the question, 
 not involved in a mere technical discussion, were 
 overlooked. If the Northern Securities Company 
 had been upheld as a legal corporation, it meant 
 the placing of such untold power, in the hands of 
 the promoters of the company, as would have en- 
 slaved the finances and commerce of the country. 
 Examine its charter for confirmation of this result. 
 The statutes of New Jersey, themselves, stand 
 as a shameful monument, to the cunning of the 
 lawyers in an effort to resist National and State 
 public policy. Almost every law of that State, 
 in favor of corporations, has been craftily de- 
 signed and built up, to cheat the general public 
 policy of the country. The State coffers have 
 been enriched by it; and each year new features 
 are added to its corporation laws, to protect 
 promoters, speculators, and majority share- 
 holders. New Jersey, through her corporation 
 
80 THE AMERICAN LAWYER. 
 
 law, has made herself an asylum, where rich and 
 influential men, have sought refuge from the pub- 
 lic policy of the law, and general sentiment of 
 the community. 
 
 Finally, it is the attorney, as distinguished 
 from the counselor, who can and does work the 
 greater harm to the community. The business 
 of the former is carried on in his office, away 
 from the public gaze — his machinations are in 
 the dark, and are insidious and secret. Shrouded 
 in unlimited discretion, no one need know, but 
 himself, how wantonly he is violating his duty, in 
 the advice which he gives his client. It lies in 
 his power always to say, "1 was mistaken in the 
 law or practice." The confused and contradic- 
 tory condition, and accumulation of statute, and 
 judge-made, law, is a perpetual asylum, to which 
 the lawyers can resort, for justification, of all kinds 
 of practices. 
 
 In the case of the counselor, he acts in the 
 open — under the public gaze. His opportunities 
 for accomplishing evil, are accordingly limited, 
 to those cases where, by skill, art, experience, 
 persuasion, or sophistry, he, unjustly, overcomes 
 the judgment and minds of the courts or 
 juries. 
 
 Public opinion is always on the alert, however, 
 and by exposing and protesting, against unjust 
 and illegal methods or results, in the court, it 
 
NATURE OF LAWYER'S VOCATION. 81 
 
 acts as a counterpoise to the meretricious influ- 
 ences of the dishonest advocate, and when the 
 time comes, as a corrective. It is to be remem- 
 bered, that all abuses inhering in any body of 
 men, grow and strengthen, from the feeling of 
 immunity from danger, with which they may be 
 practiced. Insensible or scornful of extraneous 
 opinion, they bury themselves within themselves, 
 so to speak, and thus blindly invite a sometimes 
 very rude form of resurrection. 
 
 One of the profoundest and most powerful 
 reasons for divorcing the two branches of the 
 profession arises from the above considerations. 
 The work of the attorney must, where there are 
 solicitors and barristers, pass through the hands 
 of an independent counselor, who, necessarily, 
 sits in judgment upon the facts and law before 
 they are presented to the court. He acts as a 
 breakwater between the attorney and the court. 
 A litigant would be thus compelled to cross two 
 barriers before he could reach the court. The 
 attorney would no longer be allowed to prosecute, 
 or defend, his own cases in court, and necessarily 
 many dishonest, or illegal claims, would become 
 abortive by the refusal of an independent coun- 
 selor to present them. 
 
 The names "Attorney and Counselor" are 
 still preserved in this country, although they 
 represent practically one office. 
 
 F 
 
82 THE AMERICAN LAWYER. 
 
 Here, the lawyer is both an attorney and 
 counselor. 
 
 As popularly understood, the attorney's prac- 
 tice comprehends all the business of the law- 
 yer, transacted outside of the precincts of the 
 court. 
 
 As counsel, he acts in a more limited, but, as 
 it is generally understood, a higher capacity. 
 First, as the word implies, in a purely advisory 
 relation to his client; and, second, in becoming 
 the mouthpiece of his client in court, — where 
 he acts directly under the influence of the 
 judges. 
 
 In both relations, therefore, free scope is given 
 to his best endowments, his learning, experience, 
 wisdom, genius, and eloquence. 
 
 He is also constantly called upon to exercise 
 the best qualities of trained diplomacy, in the 
 negotiations attending the settlement of difficult 
 questions, in the best interest of parties, whose 
 excited passions, have to be considered, at every 
 step. 
 
 By virtue of his official character as attorney 
 and counselor, the lawyer draws to himself a 
 multitude of other employments, not strictly of 
 a technical nature — that is, which do not grow 
 out of misunderstandings, or contests, to be settled 
 in court. 
 
 He is employed as agent, as attorney in fact, 
 
NATURE OF LAWYER'S VOCATION. 83 
 
 trustee, executor, administrator, and in a thou- 
 sand and one other fiduciary relations, which 
 the ramifications and necessities of business cre- 
 ate. A large share of this part of the lawyer's 
 business, however, as I have shown, 1 has been 
 gradually usurped by corporations, and, an ex- 
 tensive field of employment, removed from his 
 control. 
 
 The lawyer appears everywhere, and in all 
 stages of business transactions, and there is hardly 
 an event of any magnitude in commercial affairs, 
 in which his co-operation and counsel are not 
 solicited. 
 
 His knowledge, judgment, experience, clever- 
 ness, and skill, are constantly drawn upon by his 
 clients, who generally repose in their lawyers 
 the utmost faith and confidence. He is in busi- 
 ness, family, and other private and delicate mat- 
 ters, the trusted adviser and friend of his client, 
 and is often consulted when the thoughts of the 
 latter are in a chrysalis state, and he becomes 
 an important factor in moulding his client's 
 final judgment. 
 
 The confidence thus reposed is guarded, not 
 only by the moral etiquette of the profession, 
 but by positive statutory rules. It constitutes 
 the most sacred part of the lawyer's functions. 
 That it shall continue in its integrity is an im- 
 
 i Ante, p. 46. 
 
84 THE AMEEICAN LAWYER. 
 
 portant interest of society, and it behooves 
 society, for its own sake, that it should not assist 
 in breaking it down, by vulgar and indiscriminate 
 abuse of the character and functions of the lawyer 
 as such. 
 
CHAPTER VII. 
 
 THE LAWYER'S POLITICAL EMPLOYMENT AS A LEGIS- 
 LATOR, AND IN OTHER CAPACITIES. THE DUTIES 
 OF A LEGISLATOR. 
 
 Easily, the most interesting relation, which a 
 lawyer holds to the community, outside of his 
 technical occupation, is that of a legislator. 
 
 From the commencement of the government, 
 the lawyers have absolutely dominated in the 
 Federal and State Legislatures. As I have said, 
 they were the chief authors of the Constitution 
 of the United States, and of all the State Consti- 
 tutions. They are the natural and necessary 
 interpreters of it; the guardians of it. 
 
 In the analysis, therefore, of the lawyer's re- 
 lation to the community, it becomes of para- 
 mount importance to consider the duty and 
 functions of a legislator. The forty-five State 
 legislative mills (another has been since added to 
 the list) are constantly grinding out Statutes, — 
 useless and incoherent Statutes, most of them — 
 and the Congress of the United States is engaged 
 
 85 
 
86 THE AMERICAN LAWYER. 
 
 in the same occupation. Laws have accumu- 
 lated, with such rapidity, that the jurisprudence 
 of the United States is in a condition approach- 
 ing inextricable confusion and doubt. The re- 
 mark is applicable to constitutional, commer- 
 cial, and criminal, as well as all of the other, 
 branches of the law. The subject requires sepa- 
 rate treatment. This state of affairs produces 
 two principal results: first, it entails upon liti- 
 gants and the Federal and State Governments, 
 enormous expense amounting to many, many, 
 millions each year; and, in the second place, it 
 creates such uncertainty in the law as, practically, 
 to make justice a thing of doubt and chance. To 
 remedy these anomalous conditions, it is neces- 
 sary that we should have legislators who under- 
 stand their functions. I can only say, in this 
 connection, that the responsibility for all of this 
 unnecessary accumulation of Statutes rests some- 
 where. Primarily, it must be charged to the 
 individuals who make the laws, — the legislators, — 
 the lawyers. , 
 
 What, then, are the duties of a legislator? 
 
 What are the qualifications which he should 
 necessarily possess? 
 
 Primarily, he should know the relation which 
 a citizen bears to the State — of which he is a 
 member. 
 
 He must understand the origin and purpose 
 
THE DUTIES OF A LEGISLATOE. 87 
 
 of society — of the principles which underlie polit- 
 ical governments — Federal — State — Municipal . 
 
 Looking back into a period before society was 
 organized, when a man was assumed to be an 
 absolutely free creature — unrestricted and un- 
 controlled in his actions — we find that it was 
 impossible for him to live in a savage state, and 
 for his own protection, comfort, and happiness, 
 he more or less consciously, but voluntarily, 
 relinquished his natural condition and liberty, 
 and sought refuge in organized association with 
 his fellow men. 
 
 This, briefly, is the supposed origin of human 
 government. 
 
 So deeply has this view been rooted, in the 
 human mind and experience, that, practically, 
 natural liberty has ceased to exist — in fact, it, 
 perhaps, never did exist; and, in the effort of 
 the mind, to conceive a condition of natural un- 
 restrained liberty, one is remitted to an age of 
 poetry and myths. 
 
 For, when a person is born into the world, he 
 eo instanti, becomes a subject of some govern- 
 ment, without any choice or consent of his own 
 at all. He may afterwards expatriate himself, 
 and transfer his allegiance to another State, but 
 he can never enjoy natural or absolute liberty — 
 he can never divest himself entirely of civic hom- 
 age, for, wherever he is born, or wherever he 
 
88 THE AMERICAN LAWYER. 
 
 may roam, he is always amenable to some gov- 
 ernment. In a word, every babe is born into 
 the world with a political halter around its neck. 
 
 But, notwithstanding this fact, the legislator 
 must go back to the supposed origin of the social 
 compact, because this forms the proper and only 
 true basis of legislative operations. Apart from 
 the impossibility of tracing the origin of Society, 
 writers all, substantially, agree that there is an 
 implied contract between the sovereignty and 
 the individual, by which the former grants pro- 
 tection, and the latter gives allegiance. 
 
 This original social compact is very important, 
 and, withal, very simple. The citizen says, "I 
 will give up my natural liberty — I will bind my- 
 self to become a part of the State — I will support 
 the State in all emergencies." 
 
 The State says, in reply, "In return for the 
 abdication of your natural rights and freedom, 
 I will protect you and your family and your 
 property, and I will only restrain so much of 
 your natural liberty, as is necessary to protect 
 you, and your fellow citizens." 
 
 Hence, we can appreciate that most admirable 
 definition of civil or political liberty, by Lieber: 
 "The natural liberty of mankind so far restrained 
 by human laws as is necessary for the good of 
 society." Or, as Burke says, in substance, his 
 rights are his advantages. 
 
THE DUTIES OF A. LEGISLATOR. 89 
 
 "Only so far restrained by human law as is 
 necessary for the good of society!" Conse- 
 quently, the citizen is to enjoy all of his natural 
 liberty, except so far as restraint is necessary, 
 for his own, and his fellow men's, protection. 
 
 Here is the secret — the corner stone — of all 
 legislation. 
 
 No laws are to be passed except those neces- 
 sary for the subject's protection, or distinct, 
 unequivocal (not speculati-ve, not partial) bene- 
 fit or advantage. The fundamental idea is> to 
 leave the citizen with as much natural liberty, 
 as is compatible with the interests and protec- 
 tion of the other members of society. In fine, 
 to make as few laws as possible ; for, in all normal 
 and sound conditions of society, that country 
 is best governed which is least governed. The 
 Government exists for the people, not the people 
 for the Government. 
 
 A multiplicity of laws does not produce good 
 government, but, on the contrary, annuls and 
 destroys its efficacy. It introduces confusion 
 and uncertainty, and wherever these elements 
 exist, individuals evade and escape from the 
 operation of laws. 
 
 Hence a legislator must keep constantly before 
 him the origin and purpose of the social compact. 
 He must ask himself, "Is this proposed law neces- 
 sary? Is it just? Is it for the true interests of 
 
90 THE AMERICAN LAWYER. 
 
 the people, or the greater portion of them? By 
 passing it, shall I take away, unnecessarily, any 
 portion of the natural liberty of the subject?" 
 As Montesquieu says : * 
 
 "Elles doivent etre relative au physique 
 du pays; au climat glace, brulant, ou tem- 
 pore; a la qualite du terrain, a sa situation, 
 a sa grandeur; au genre de vie des peuples, 
 laboureurs, chasseurs ou pasteurs; elles doi- 
 vent se rapporter au degre de liberte que 
 la constitution peut souffrir, a la religion 
 des habitants, a leurs inclinations, a leurs 
 richesses, a leur nombre, a leur commerce, 
 a leurs moeurs, a leurs manieres. Enfin, 
 elles ont des rapports entre elles; elles en 
 ont avec leur origine, avec 1' object du legis- 
 lates, avec l'ordre des choses sur lesquelles 
 elles sont establies; c'est dans toutes ces 
 vues qu'il faut les considerer." 
 
 To answer, or decide, these questions, is not 
 an easy task — it always involves a knowledge of 
 the existing institutions and laws, the mischief 
 involved, and whether the new or proposed law 
 constitutes an adequate remedy; a study of 
 each great leading industry and interest, and its 
 relation to the others and the whole. 
 
 What learning — what experience— what in- 
 dustry, a lawyer requires who would faithfully 
 
 i"De L'Esprit Des Lois," Vol. 1, p. 106, Livre I, Chap. Ill, 
 ed. 1799. A. Basle, 1799. 
 
THE DUTIES OF A LEGISLATOR. 91 
 
 fulfill the duties of a legislator! And contrasted 
 with this standard, how deficient the modern 
 legislator is! How few there are of legislators 
 in the Federal, or State Legislatures, who under- 
 stand and fulfill their real duties. How many- 
 laws, which now confuse and perplex the lawyers, 
 and judges, would have been avoided; how many 
 thousands of books and statutes which now en- 
 cumber the shelves of the Law Libraries, would 
 have never existed — if these fundamental, but 
 simple, rules had been observed in the education 
 and selection of legislators? 
 
 "Let any man look upon all that has been 
 done in this department and trace it to its 
 sources. He would acknowledge that legisla- 
 tion, good or bad, springs from the Bar." 1 
 And if this dictum be thought too broad, yet with 
 every abatement that can be made, popular de- 
 mand, exigencies of society or situation, the field 
 of the lawyer's action is still enormous. Nothing 
 is more instructive and interesting in this con- 
 nection than the seventh chapter of the second 
 book of Rousseau's "Du Contrat Social" — "Du 
 Legislateur" — in which he exclaims: "Mais s'il 
 est vrai qu'un grand prince est un homme rare, 
 que sera-ce d'un grand legislateur." 
 
 Having satisfied himself of the necessity, the 
 utility, the justness of the law, the legislator must 
 
 » " Sharswood's Legal Ethics," p. 25. 
 
92 THE AMERICAN LAWYER. 
 
 then prepare it. Here he has need of the greatest 
 skill, experience, and knowledge. 
 
 Why is it that the most profound lawyers 
 shrink from drawing statutes? Because there 
 is no task so delicate and difficult. What is the 
 old law? What is the evil? What is the neces- 
 sity? What is the remedy proposed? From 
 the infinite catalogue of language, what words 
 shall be selected to express accurately and clearly 
 the thought, the principle, the facts, to be covered 
 by the legislation? Simplicity, precision, brevity, 
 perfect clearness, must here be observed. 
 
 Another important feature of an American 
 legislator is, that he must compare all proposed 
 laws, with the Federal and State Constitutions. 
 
 This involves an accurate knowledge of these 
 instruments. 
 
 To sum up: if a new law be proposed, the 
 legislator must determine its necessity, its just- 
 ness, in the light of the social compact above 
 described, and of all the other considerations 
 bearing upon the subject. 1 If an amendment to 
 an existing law be proposed, he must know the 
 
 i " La Loi, en general, est la " Elles doivent 6tre tellement 
 
 raison humaine, en tant qu'elle propres au peuple pour lequel 
 
 gouverne tous les peuple de la elles sont faitres, que c'est un 
 
 terre; et les lois politique et tres grand hasard si celles d'une 
 
 civiles de chaque nation ne nation peuvent convenir a une 
 
 doivent etre que les cas particu- autre." Montesquieu, "DeL'Es- 
 
 liers oil s'applique cette raison prit Des Lois," Livre I, Chap. Ill, 
 humaine. ' pp. 135, ed. 1826. 
 
THE DUTIES OF A LEGISLATOR. 93 
 
 old law, the mischief, and the remedy, and he 
 must, finally, be able to put the proposed legis- 
 lation into clear, unmistakable, and unequivocal 
 language. 
 
 The failure to observe these rules, is the cause of 
 all the unwise, voluminous, unnecessary, and un- 
 constitutional legislation, which now fills our stat- 
 ute books and piles up our law books mountain 
 high. I cite, below, a large number of cases which 
 show how constantly the courts have been occu- 
 pied, in the State of New York, alone, since 1862, 
 in the work of declaring Statutes unconstitutional. 1 
 
 1 1. L. 1862, Chap. 459. — Unconstitutional so far as it authorizes 
 the seizure and sale, without judicial process, of animals found tres- 
 passing within a private inclosure. 
 
 Eockwell v. Nearing, 35 N. Y. 302. 
 
 2. L. 1862, Chap. 482.— The act of 1862 providing for the collection 
 of demands against vessels, so far as it gives a lien for supplies fur- 
 nished to, or repairs made upon a vessel engaged in foreign com- 
 merce, is unconstitutional, and a bond given pursuant to the act to 
 release a vessel detained by virtue of an attachment issued there- 
 under, is void. 
 
 Poole v. Kermit, 59 N. Y. 554. 
 
 3. L. 1863, Sec. 9, Chap. 361. — "An act to authorize the construc- 
 tion of a railway and tracks in the towns of West Farms and Mor- 
 risania." Act unconstitutional in part. 
 
 Bohmer v. Haffen, 161 N. Y. 390. 
 
 4. L. 1866, Chap. 217.— Section 1, of chapter 217 of laws of 1866, 
 extending the term of the incumbents of the office of justice and clerk 
 of the District Court of the eighth judicial district in the city of New 
 York, is in conflict with section 18, of article 6, of the Constitution 
 of 1846, and is void. 
 
 The People ex rel. v. Bull, 48 N. Y. 57. 
 
94 THE AMERICAN LAWYER. 
 
 When one adds to this record, the aggregate ad- 
 judications, of the Courts of all the States of the 
 Union, and in the Federal Courts, to a like effect, 
 the list becomes appalling. Opening up further 
 
 5. L. 1866. — The provision of said act (See. 4) providing that on 
 appeal from the award of commissioners, the court may increase or 
 diminish the compensation, is violative of the constitutional provi- 
 sion (Art. 1, Sec. 7) declaring that the compensation for property 
 taken for public use shall be ascertained by a jury or by commis- 
 sioners. 
 
 In re Vil. Middletown, 82 N\ Y. 196. 
 
 6. L. 1868. — Provided that the supervisors of the counties of Erie 
 and Chautauqua should assess upon their respective counties a moiety 
 of such further sum, not exceeding $10,000, as the said commissioners 
 should certify to be necessary for the completion of the bridge, is 
 unconstitutional and void. 
 
 People ex rel. Chas. H. Lee, etc., v. The Board of Supervisors of 
 the County of Chautauqua, 43 N. Y. 10. 
 
 7. L. 1868. — An act of the legislature appropriating moneys from 
 the capital of the common school fund, to the establishment of an 
 astronomical observatory, is in violation of the Constitution (article 
 9), and void. 
 
 People v. Allen, 42 jST. Y. 404. 
 
 8. L. 1869, Chap. 84, Sec. 2. — A statute attempting to validate 
 a void subscription to capital stock of railroad unconstitutional. 
 
 N. Y. & O. M. R. R. Co. v. Yan Horn, 57 N. Y. 473. 
 
 9. L. 1869, Chap. 217, Sec. 4. — Amended by Chap. 619, Laws of 
 1870. A law imposing an assessment for a local improvement with- 
 out notice to, and a hearing, or an opportunity to be heard, on the part 
 of the owner of the property to be assessed, has the effect to deprive 
 him of his property without due process of law and is unconstitu- 
 tional. 
 
 Stuart v. Palmer, 74 N. Y. 183. 
 
 10. L. 1870, Chap. 77, Tit. 7, Sec. 1. — The provision of the act 
 of 1870 in relation to the city of Albany prescribing that, for the pur- 
 
THE DUTIES OF A LEGISLATOR. 95 
 
 investigation, into the history of the enactment 
 and repeal of unnecessary statutes, one is tempted 
 to exclaim: "How much longer can this nation 
 bear the staggering burden of such ignorant legis- 
 
 pose of ascertaining the compensation to be paid by said city to the 
 owners of lands taken for streets, etc., the common council shall 
 nominate twelve freeholders whose names, on separate ballots, are 
 to be placed in a box, from whence are to be drawn three, who shall 
 be appointed commissioners, etc., is unconstitutional, and proceed- 
 ings taken thereunder void. 
 
 Menges v. City of Albany, 56 N. T. 374. 
 
 11. L. 1870, Chap. 291. — Titlb7, p. 694 (Village Act), as amended 
 by L. 1878, Chap. 59, p. 66 (right of appeal from award of jury of dam- 
 ages for street opening on giving bond for costs) invalid— as taking 
 witbout process. 
 
 People v. Board, 151 N. V. 75. 
 
 12. L. 1870, Chap. 291. — Title 7, p. 694, as amended by L. 1893, 
 Chap. 694, prescribing qualifications for a jury to assess damages for 
 street opening invalid — as such a jury is not that required by Con- 
 stitution. 
 
 People v. Board, 151 1ST. T. 75. 
 
 13. L. 1870, Chap. 365, Sec. 2, as amended by L. 1894, Chap. 622.— 
 Crime for city contractor to employ alien, void as infringing per- 
 sonal rights and due process of law. 
 
 People v. Warren, 34 N. Y. S. 942. 
 
 14. L. 1871, Chap. 809. — Legislature has no power to impose debt 
 on town without consent. 
 
 See Horton v. Town of Thompson, 71 N. Y. 513. 
 
 15. L. 1871, Chap. 810.— Amendment to L. 1869, Chap. 714. The 
 provision of said amendment confirming the acts of the common 
 council theretofore done in reference to the construction of sewers 
 did not validate the assessment, as the section itself, so far as it re- 
 lates to the confirmation of assessments, was unconstitutional and 
 void. 
 
 City of Watertown v. Jason Fairbanks, 65 N. Y. 588. 
 
96 THE AMERICAN LAWYER. 
 
 lation and judicial conflict! " Justinian's task in 
 reforming the Roman Law, one of the greatest 
 undertakings of ancient history, was a pastime, 
 compared to the herculean labor which is devolved 
 upon the lawyers of the twentieth century. 
 
 16. L. 1873, Chap. 452.— The provision of the act of 1873 author- 
 izing the taking of lands for the purpose of such an association, by 
 proceeding in invitum, is unconstitutional and void. 
 
 In re D. C. Assn., 66 N. Y. 569. 
 
 17. L. 1874, Chap. 545, Sec. 4. — That provision of the act relat- 
 ing to the Marine Court of the city of New York authorizing any 
 court of record to transfer an action pending therein to the Marine 
 Court, and thereupon giving the latter exclusive jurisdiction thereof, 
 is unconstitutional, and an order made by the Superior Court for the 
 purpose of making such a transfer was void. 
 
 Alexander v. Bennett, 60 N. Y. 204. 
 
 18. L. 1876, Code Civ. Pboc, Sec. 758. — Providing that estate of 
 a joint contractor shall not be discharged upon his death, does not 
 affect contracts made prior to its passage. 
 
 Randall v. Sackett, 77 ST. Y. 480. 
 
 19. L. 1879, Code Civ. Pboc, Sec. 856. — Committal for contempt 
 for refusal to answer controller's questions, void, as depriving of lib- 
 erty without process. 
 
 In re Grout, 93 N. Y. S. 711. 
 
 20. L. 1880.— The provision of the act of 1880 (Sec. 4, Chap. 59, 
 Laws of 1880) for the relief of the Manhattan Savings Institution, 
 which by its terms discharges the city of Yonkers, upon delivery by 
 it to said institution of duplicate bonds, from liability upon certain 
 negotiable bonds issued by it "to all persons purchasing the same 
 after due publication of the notice specified in the first section of 
 this act " is unconstitutional, as the effect thereof is to destroy the 
 negotiable quality of the bonds, and so it impairs the obligation of 
 contracts. 
 
 People ex rel. v. Otis, 90 IS". Y. 48. 
 
THE DUTIES OF A LEGISLATOR. 97 
 
 The legislator should, therefore, be a man who 
 understands the origin and nature of society — 
 familiar with past and existing laws and history 
 — with such practical and discriminating judg- 
 
 21. L. 1880, Chap. 582. — As applicable to such a road, therefore, 
 the provision of the act of 1880 in reference to underground street 
 railways, declaring that the determination of commissioners, con- 
 firmed by the court, " may be taken in lieu of the consent of said au- 
 thorities," is unconstitutional and invalid. 
 
 In re N. Y. Dist. K. K. Co., 107 N. Y. 42. 
 
 22. L. 1881, Chap. 532. — Purporting to amend the provision of 
 the Code of Civil Procedure (Sec. 1041) in regard to the selection and 
 drawing of jurors in the city and county of Albany. Assuming the 
 said act not to have been reported by the commissioners appointed 
 by law to revise the statutes, and so not within the exception (Art. 3, 
 Sec. 25) exempting from the operation of said provisions bills so re- 
 ported, the said act is, as to grand jurors, unconstitutional and void. 
 
 People v. Petrea, 92 N. Y. 128. 
 
 23. L. 1881, Chap. 637.— The provision of the act of 1881 purport- 
 ing to authorize the E. B. W. & M. Co. to acquire title to lands by 
 proceedings in invitum, was unconstitutional and void. 
 
 In re Eureka Basin, etc., 96 N. Y. 42. 
 
 24. Code Civ. Pkoc. (Sec. 1440), relating to title to real property 
 sold on execution, as amended in 1881 (Chap. 681, Laws of 1881). 
 The legislature has no power to deny, for any cause, to a party who 
 has been illegally deprived of his property, access to the constitu- 
 tional courts of the State for relief. 
 
 Gilman v. Tucker, 128 N. Y. 190. 
 
 25. L. 1882, Chap. 92. — Act prohibiting Turnpike Co. from charg- 
 ing toll for bicycles held unconstitutional as taking of property with- 
 out due process of law. 
 
 Rochester & C. Turnpike Eoad Co. v. Joel, 58 N. Y. S. 346. 
 
 26. L. 1882, Chap. 410, Sec. 677.— The provision of the New York 
 Consolidation Act which declares that no compensation shall be al- 
 
 G 
 
98 THE AMERICAN LAWYER. 
 
 ment as enables him to comprehend the wants 
 and necessities of his fellow men. In this respect, 
 it is, in some aspects, a higher term than even 
 statesman. Suppose the Bar would seriously 
 
 lowed to the owner of land taken for a street for any building erected 
 or placed thereon after the filing of a map of the street as prescribed 
 by the Act (Sec. 672), by its terms imposes a restriction upon the use 
 of the land which amounts to an incumbrance, and so is unconstitu- 
 tional. 
 
 Foster v. Scott, 136 N. Y. 577. 
 
 27. L. 1884, Chap. 60. — A statute cutting down the right to com- 
 mence an action upon a cause of action then existing, from a period 
 without limitation to a few months after the passage of the act, does 
 not give such reasonable time, and so is unconstitutional. 
 
 Parmenter v. The State of N. Y., 135 N. Y. 154. 
 
 28. L. 1884, Chap. 202, Sec. 4. — A legislative enactment which 
 absolutely prohibits an important branch of industry, not injurious 
 to the community, and not fraudulently conducted, solely for the 
 reason that it competes with another, and may reduce the price of an 
 article of food, is unconstitutional. 
 
 People v. Marx, 99 N. Y. 377. 
 
 29. L. 1884, Chap. 272. — The act entitled " An act to improve the 
 public health, by prohibiting the manufacture of cigars and prepara- 
 tion of tobacco in any form in tenement houses, in certain cases," 
 etc., is unconstitutional. 
 
 In re Jacobs, 98 N. Y. 98. 
 
 30. L. 1885.— Code Civ. Pboc, Sec. 90, so far as it prohibits a 
 Court of Common Pleas from appointing its clerk as a referee is un- 
 constitutional. 
 
 Popflnger v. Yutte, 102 N. Y. 38. 
 
 31. L. 1885, Chap. 183. — In order to sustain an indictment under 
 the provision of the act of 1885 (Sec. 7, Chap. 183, Laws of 1885, 
 amended by chap. 458, Laws of 1885), prohibiting the manufacture or 
 sale of any article " not produced from unadulterated milk, or cream 
 
THE DUTIES OF A LEGISLATOR. 99 
 
 throw its whole influence to prevent the election 
 of individuals to the Legislature, who did not sub- 
 stantially fulfill these requirements. Would not 
 the community at once feel the benefit of such a 
 
 from the same," which is " in imitation or semblance of or designed to 
 take the place of butter," it must be made to appear that the article 
 manufactured was, by the use of ingredients, not necessary or essen- 
 tial to the article itself, made in imitation or semblance of butter; the 
 manufacture of an article simply "designed to take the place of but- 
 ter " is not an offense, as so much of the provision is unconstitutional. 
 People v. Arensburg, 103 N. T. 388. 
 
 32. L. 1886, Chap. 271 and Chap. 310.— The acts of 1886 providing, 
 in case of such a dissolution for the taking away from the company of 
 its street franchises, and for the winding up of its affairs by suit 
 brought by the attorney general, and the appointment of a receiver 
 therein, are unconstitutional and void. 
 
 People v. O'Brien, 111 N. T. 1. 
 
 33. Section 1421, Code of Civil Pbocedtjbe, amended in 1887. 
 Substitution of indemnitor in action against sheriff. Unconstitution- 
 ality of Mandatory Provision. 
 
 Levy v. Dunn, 160 N. Y. 504. 
 
 34. L. 1887, Chap. 627.— The provision of the act of 1887 confirm- 
 ing sales of land for the nonpayment of taxes theretofore made under 
 the act of 1874, authorizing sales of lands for unpaid taxes in the 
 county of Westchester (Chap. 610, Laws of 1874), so far as it seeks to 
 validate a sale, void because made under a void assessment, is un- 
 constitutional. 
 
 Cromwell v. MacLean, 123 N. T. 474. 
 
 35. L. 1887, Chap. 688. — Penal Code Sec. 171a, compelling em- 
 ployee not to join labor organizations, a misdemeanor, void, as 
 deprivation of equal protection of laws. 
 
 People v. Marcus, 97 N. Y. S. 322, 185 N. Y. 257. 
 
 36. L. 1887, Chap. 691. — The provision of the Penal Code (Sec. 335a, 
 added by Chap. 691, Laws of 1887) prohibiting the sale or disposal of 
 
100 THE AMERICAN LAWYER. 
 
 movement? But where would they find them? 
 How are they to be known? When found and 
 known, how are they to be made available in a sys- 
 tem like ours? These are the real questions. With- 
 
 any article of food, or ;my offer or attempt to do so upon any repre- 
 sentation or inducement that anything else will be delivered as a 
 gift, prize, premium or reward to the purchaser, is unconstitutional 
 and void. 
 
 People v. Gillson, 109 N. T. 389. 
 
 37. The Provision op the Code of Civil Procedure (Sec. 1582, 
 as amended by Chap. 39, Laws of 1889) authorizing the Special Term, 
 in an action for partition, in which a portion of the proceeds of a 
 sale has been paid into court or deposited with the county treasurer 
 for unknown heirs and twenty-five years have elapsed without any 
 claim being made therefor by any person entitled thereto, "to decree 
 that such unclaimed portion of such proceeds was vested at the time 
 of such payment in the known heirs of the common ancestor of such 
 unknown heirs and their heirs and assigns" is unconstitutional. 
 
 People ex rel i>. Kyder, 124 N. Y. 500. 
 
 38. L. 1889, Chap. 382, Constitution, Ap.t. 3, Sec. 29.— Prohibit- 
 ing work by convict for sale is invalid as to contracts made prior to 
 Constitution. 
 
 Bronk v. Barckley, 43 N. Y. S. 400. 
 
 39. L. 1890, Chap. 294, Sec. 59.— Amended by L. 1893, Chap. 190. 
 Charter of Schenectady, requiring assessment for street paving to be 
 apportioned according to foot frontage, is void as taking without 
 process. 
 
 Conde v. City, 164 N. Y. 258. 
 
 40. L. 1890, Chap. 400 (Insurance Law 1892, Sec. 56).— Provid- 
 ing that no one but Attorney General shall proceed against insur- 
 ance company, void, as to policy holder who became such power to 
 act. 
 
 Greel v. Equitable, 57 N". Y. S. 871. 
 
THE DUTIES OP A LEGISLATOR. 101 
 
 out an intentional impeachment of the form of 
 democratic government, it is nevertheless true, 
 that prototypes of the best class of legislators, 
 do not always appear, in the recognized legisla- 
 tive assemblies. 
 
 41. L. 1892, Chap. 214. — Conferring upon women the right to vote 
 for school commissioners is unconstitutional. 
 
 In re Gage, 141 N. Y. 112. 
 
 42. L. 1892, Chap. 467, Sec. 2.— As to committal of female in- 
 ebriates without judicial trial, void, as taking without due process. 
 
 People v. St. Saviours San., 56 N. Y. S. 8, 431. 
 
 43. L. 1892, Chap. 488, Secs. 110, 112. — Misdemeanor to possess 
 fish during certain seasons and inflicting penalty, void as to im- 
 ported fish, as taking without process. 
 
 People v. Buffalo, 62 N. Y. S. 543, 1143. 
 
 44. L. 1892, Chap. 664. — Unconstitutionality of act for payments 
 to drafted men by taxation. 
 
 Bush v. Board of Supervisors, 159 N". Y. 212. 
 
 45. L. 1892, Chap. 687, Sec. 15.— Prohibiting suits by foreign cor- 
 porations without a certificate, void, as denying equal protection of 
 laws. 
 
 Hargreaves v. Harden, 56 N. Y. S. 937. 
 
 46. L. 1892, Chap. 090. — A statute making void a contract entered 
 into by a citizen of one State with a corporation of another, made 
 and to be performed in the latter, insuring property within the 
 former State, is void under Const. U. S., Amend. 14. 
 
 West. Mass. Mat. Fire Ins. Co. v. Hilton, 58 N. Y. S. 996. 
 
 47. L. 1893, Chap. 338. — Agricultural Law, Sec. 50, defining 
 adulterated vinegar, and that cider vinegar made by State farms shall 
 not be deemed such, void as discriminating. 
 
 People v. Windholz, 86 N. Y. S. 1015. 
 
 48. L. 1893, Chap. 376. — Authorizing construction of a cremator 
 for destruction of garbage, etc., unconstitutional as not providing 
 
102 THE AMERICAN LAWYER. 
 
 There are epochs in all governments, when its 
 official servants, fail to respond, to ideal require- 
 ments. But a democracy offers practical, and 
 the readiest, methods of correcting such evils. 
 
 compensation to adjoining owners affected by offensive stenches from 
 the cremator. 
 
 Kobbe v. Village, 45 N. T. S. 777. 
 
 49. Const. 1894, Abt. 1, Seo. 7. — Authorized occupants of agri- 
 cultural lands to construct ditches on lands of others on compensat- 
 ing them, violates Const. U. S., Art. 14, taking without process. 
 
 In re Tuthill, 163 N. T. 133. 
 
 50. L. 1894, Chap. 284. — Permitting water corporations to arbi- 
 trarily assess for water rates, void, as impairing obligation of con- 
 tracts. 
 
 Warsaw v. Village, 161 N. T. 176. 
 
 51. L. 1851, Chap. 307, Amended by L. 1894, Chap. 712.— Declar- 
 ing Moose River a public highway for floating logs, void, as failing 
 to provide compensation to owners for land taken in improving 
 river. 
 
 De Camp v. Thompson, 44 N. T. 1014. 
 
 52. L. 1895, Chap. 162. — Trial court will not declare act uncon- 
 stitutional unless there can be no reasonable doubt on the subject. 
 
 City of Ithaca i>. Babcock, 72 N". Y. S. 519. 
 
 53. L. 1895, Chap. 342. — Authorizing a pardoned convict to sue 
 for damages, although judgment against him unreversed, invalid, as 
 being an exercise of judicial functions. 
 
 Roberts ». State, 51 N. Y. S. 691. 
 
 54. L. 1895, Chap. 417. — Free transportation in street railroads 
 for policemen, void, as beyond police power. 
 
 Wilson v. Traction Co., 76 1ST. Y. S. 203. 
 
 55. L. 1895, Chap. 559, Sec. 47. — Authorizing a cemetery associa- 
 tion to make rules and to collect penalties for non-observance, unlaw- 
 
THE DUTIES OF A LEGISLATOR. 103 
 
 If the lawyers are to continue as our principal 
 legislators, they must be educated up to the 
 standards of their real functions, powers, and 
 duties; the legitimate effect of which will be to 
 
 ful, as legislature without power to give such authority to a non-gov- 
 ernmental agency. 
 
 Johnstown v. Parker, 59 N. T. S. 821, 60 N. Y. S. 1015. 
 
 56. L. 1895, Chap. 633. — No action against warehouseman un- 
 less he has claim other than for charges, void, as taking without 
 process. 
 
 Follet v. Albany, 70 N. T. S. 474; Milligan v. Co., 68 N. T. S. 744. 
 
 57. L. 1895, Chap. 792. — Protection of holders of municipal ne- 
 gotiable bonds by giving right of appeal to Court of Appeals although 
 amount in controversy less than $500, void as to retroactive opera- 
 tion. 
 
 Germania S. Bank u. Village, 159 N. Y. 362. 
 
 58. L. 1895, Chap. 1027, Sec. 1. — Making railroad liable to a 
 penalty for refusing to sell 1,000-mile ticket at reduced rate, void, as 
 outside police power, discriminating, and taking without process. 
 
 Beardsley v. N. Y., 162 N. Y. 230. 
 
 59. L. 1896, Chap. 22, Secs. 19 and 20.— Unconstitutionality of 
 Abolition of Justices' criminal jurisdiction — Town of Fort Edward. 
 
 People ex rel. Barby v. Howland, 155 N. Y. 270. 
 
 60. L. 1893, Chap. 601, as amended by L. 1896, Chap. 272.— Pro- 
 hibiting marriage of uncle and niece, not retroactive. 
 
 Weisberg v. Weisberg, 98 N. Y. S. 260. 
 
 61. L. 1896, Chap. 378, Secs. 707, 711. — Giving workhouse su- 
 perintendent power to determine imprisonment of one committed for 
 intoxication, invalid as without due process. 
 
 In re Kenny, 49 N. Y. S. 1037; People v. Cheamer, 53 X. Y. S. 1111. 
 
 62. L. 1896, Chap. 383. — Protection of Oysters — Forfeiture of 
 disturbing vessel. Unconstitutional. 
 
 Colon v. Lish, 153 N. Y. 188. 
 
104 THE AMERICAN LAWYER. 
 
 give us a new and different class of officials. In 
 the present system of education of the lawyer, 
 these essentials are not in his curriculum. 
 
 If the moral sense of the community, which 
 
 63. L. 1896, Chap. 427. — Unconstitutional restriction upon ap- 
 pointment to office. Invalidation of entire act by inseparable consti- 
 tutional provision. 
 
 Rathbone v. Wirth, 150 N. Y/459. 
 
 64. L. 1896. — License fees are public moneys. Appropriation to 
 private corporation — Chapter 446, unconstitutional. 
 
 Fox v. Mohawk & II. E. Humane Society, 165 N. T. 517. 
 
 65. L. 1896, Chap. 529, Sec. 82.— Forty-eight hours' notice to 
 village clerk of a village of intention to sue village for personal inju- 
 ries, void, as unreasonable and taking without process. 
 
 Green b. Village, 64 N. Y. S. 547. 
 
 66. L. 1896, Chap. 545. — Insanity Law permitting perpetual con- 
 finement of one as insane without notice or hearing at which he is 
 present, void, as depriving of liberty without process. 
 
 People v. Wendel, 68 N. Y. S. 948. 
 
 67. L. 1893, Chap. 452, and L. 1896, Chap. 547, Sec. 83.— Em- 
 powering beneficiary of a trust to terminate trust without consent of 
 trustee, void, as taking without process. 
 
 Oviatt v. Hopkins, 46 N. Y. S. 959. 
 
 68. L. 1896, Chap. 727. — Authorizing condemnation for a park, 
 void as taking without process, there being no provision for notice. 
 
 In re City, 70 N. Y. S. 227. 
 
 69. L. 1896, Chap. 772. — Kings County — District Attorney, pro- 
 viding that district attorneys of Kings County shall be elected every 
 four years. 
 
 People ex rel. Eldred v. Palmer, 154 N. Y. 133. 
 
 70. L. 1896, Chap. 803. — Prohibiting a firm to do business in 
 New York City as master plumbers unless its members shall have 
 been registered after examination by the examining board of plumb- 
 
THE DUTIES OF A LEGISLATOR. 105 
 
 is another name for public opinion, should be 
 maintained to the highest possible degree, an 
 educated Bar, and a free, pure and intelligent, 
 Press, are the factors which can do much to ac- 
 complish all these results. 
 
 ers, void, as prohibiting formation of a partnership to carry on a 
 lawful business. 
 
 Schnaier v. Navarre, 182 1ST. T. 83. 
 
 71. L. 1896, Chap. 931. — Unconstitutionality of convict-made 
 goods, label act — Interstate Commerce. 
 
 People v. Hawkins, 157 N. Y. 1. 
 
 72. L. 1897, Chap. 284. — Transfer Tax act does not apply to a 
 property acquired prior to its passage. 
 
 In re Lansing's Est., 182 N. Y. 238. 
 
 73. L. 1897, Chap. 415, Aet. 8, Sec. 110. — Limiting employment 
 in bakeries to 10 hours a day and 60 hours a week, void, as outside 
 police power. 
 
 Loehner v. People, 76 N. Y. S. 396. 
 
 74. L. 1897, Chap. 41o.,Secs. 180, 184. — Requiring horseshoers to 
 be examined and to obtain a certificate, etc., void, as interference 
 without due process. 
 
 People v. Beattie, 89 N. Y. S. 193. 
 
 75. L. 1897, Chap. 415, Penae Code, Sec. 384, Subd. 1.— Hours 
 of labor under contracts with State or municipalities, void, as dis- 
 criminating. 
 
 People v. Orange, 175 N. Y. 84. 
 
 76. L. 1893, Chap. 452 ; L. 1896, Chaps. 547, 553 ; and L. 1897, 
 Chap. 417, Sec. 3. — Permitting life beneficiary of trust of personalty 
 who becomes entitled to remainder, to end the trust, not retroactive 
 as to trusts created before their enactment. 
 
 Newcomb v. Newcomb, 68 N. Y. S. 430. 
 
 7 7. L. 1897, Chap. 506. — Unconstitutionality of Act limiting sale 
 of Passage Tickets. 
 People ex rel. Tyroler v. Warden, etc., 157 K. Y. 116. 
 
106 THE AMERICAN LAWYER. 
 
 Turning from legislative to other fields, we find 
 that the lawyers occupy almost the entire horizon, 
 of the official world. 
 
 The eye cannot be opened upon any department 
 
 78. L. 1898. — An amendatory act passed in 1898 to the Turnpike 
 Act (L. 1847, Chap. 210), by which a company's earnings are reduced 
 25%, void, as impairing obligation of a contract. 
 
 Rochester v. Joel, 58 N. Y. S. 346. 
 
 79. L. 1899, Tax, Chap. 76, Laws op 1899.— Imposing transfer 
 tax upon remainders or reversions vesting prior to June 30, 1885, 
 unconstitutional. 
 
 Matter of Pell, 171 N. Y. 48. 
 
 80. L. 1897, Chap. 415; L. 1899, Chaps. 192, 567.— That laborers 
 on public works be paid prevailing rate of wages, etc., void, as takiug 
 away liberty of free contract. 
 
 People v. Coler, 166 N. Y. 1. 
 
 81. L. 1899. — Statute requiring appointment of person highest on 
 list, unconstitutional. — Chap. 370, 13. 
 
 People ex rel. Balcom v. Mosher, 162 N. Y. 32. 
 
 82. L. 1899, Chap. 502.— Code, Sec. 920, providing for committal 
 of witness before commissioner of foreign court, invalid, as against 
 due process. 
 
 People v. Leubischer, 51 N. Y. S. 735, 54 N. Y. S. 869. 
 
 83. L. 1899, Chap. 567. — Repealing all prior statutes as to secur- 
 ing prevailing rate of wages to municipal employees — void as to claim 
 of workman employed prior to repealing statute. 
 
 McCann v. City, 52 App. 358. 
 
 84. L. 1899, Chap. 700. — Providing that municipal corporations 
 shall pay the expenses of a person who has been indicted within its 
 boundaries for a criminal offense in connection with his official du- 
 ties, is unconstitutional. 
 
 In re Straus (Sup.), 61 1ST. Y. S. 37; In re Fallon, 59 3ST. Y. S. 849. 
 
THE DUTIES OF A LEGISLATOR. 107 
 
 of the Federal, State, or Municipal governments, 
 without encountering them. 
 
 They, naturally, engross all of the judicial offices, 
 and they swarm everywhere, in the legislative 
 and executive branches of the government. 
 
 85. L. 1900, Amending Chabteb N. T. Sec. 1212. — Prohibiting 
 boiling of garbage, void, as taking without process. 
 
 New York v. Department, 70 N. T. S. 510. 
 
 86. L. 1900, Chap. 534. — Agricultural Law, Sec. 27, as amended by 
 L. 1900, prohibiting sale of butter or cheese containing a preserva- 
 tive, etc., void, as not proper exercise of police power. 
 
 People v. Biesecker, 68 N. T. 1067. 
 
 87. L. 1900, Chap. 614. — Providing that a county should pay a 
 bank its defaulting treasurer's overdraft, although a judgment had 
 been given in favor of county in action by bank, void, as depriving 
 county of a vested right. 
 
 Greene v. Niagara, 166 N. T. 485. 
 
 88. L. 1900. — Judgment for alimony constitutes property of wife 
 of which she cannot be deprived without due process of law — 
 Ohap. 742 — in so far as it affects prior judgments for, unconstitu- 
 tional. 
 
 Livingston v. Livingston, 173 N. T. 377, 77 N. T. Sup. 476; Good- 
 sell v. Ooodsell, 81 N. Y. S. 806. 
 
 89. L. 1897, Chap. 418, as amended by L. 1900, Chap. 762.— Pro- 
 viding for sale by auction by vendor, and, in default, recovery of 
 moneys paid by vendee, void as to sales prior to its passage. 
 
 Haefelein v. Jacob. 94 N. Y. S. 466. 
 
 90. L. 1901, Chap. 128. — Amending Penal Code Sec. 640d, pro- 
 viding that in cities of the first and second class persons offering real 
 property for sale without written authority from vendor or vendee, 
 guilty of misdemeanor, void, as taking without process. 
 
 Cody v. Dempsey, 83 N. Y. S. 899; Grossman v. Caminez, 79 
 App. Div. 15; Contra, Whiteley v. Terry, 78 N. Y. S. 911. 
 
108 THE AMERICAN LAWYER. 
 
 Individuals imbibe from the lawyer notions 
 of the principles of government; they hear from 
 him the reasons for new, and the motives for 
 alterations of old, laws; they readily accept his 
 
 91. L. 1897, Chap. 378, amended by L. 1901, Chap. 469, Seo. 
 1560. — Forbidding city pensioners to bold city employment, void, as 
 against abridgment of citizens' privileges (Const. 1894, Art. 1, sec. 1). 
 
 People v. Woodbury, 77 N. T. S. 241. 
 
 92. L. 1899, Chap. 451, as amended by L. 1901, Chap. 503.— Relief 
 of banks as to lost certificates of deposit, void so far as retroactive. 
 
 In re Cook, 83 JF. Y. S. 100. 
 
 93. L. 1901, Chap. 639. — Preventing any than common carriers 
 from engaging in ticket brokerage business, void, as taking without 
 process. 
 
 People v. Caldwell, 168 N. Y. 671. 
 
 94. L. 1896, Chap. 112, as amended by L. 1901, Chap. 640.— For 
 canceling of license certificate unless holder files an answer deny- 
 ing violation, void, as taking without due process. 
 
 In re Cullman, 81 N. Y. S. 567. 
 
 95. Act Jan. 22, 1902.— Providing that Act April 25, 1901, giving 
 salary to Alderman, but for no part of 1901, void, as impairing a 
 vested right. 
 
 Young v. City, 76 N. Y. S. 224. 
 
 96. L. 1902, p. 1367.— Section of charter of city of Middletown 
 providing that written notice of dangerous condition of sidewalk 
 must be given to city before recovery can be had for personal injuries, 
 void, as taking away right of action altogether. 
 
 MacMullen v. City, 92 ST. Y. S. 410, 98 N. Y. S. 145. 
 
 97. L. 1902, Chap. 94, Code Civ. Pboc, Sec. 618.— Citizen of N. Y. 
 compelled to attend, on subpoena, criminal procedure in Pennsyl- 
 vania, void, as depriving of liberty without process. 
 
 In re Commonwealth, 90 N. Y. S. 808. 
 
THE DUTIES OF A LEGISLATOR. 109 
 
 technical explanations of the causes and effects 
 of legislation, when not of a purely partisan char- 
 acter. 1 
 
 In times of excitement, when public resent- 
 
 98. L. 1902, Chap. 194, Sec. 141. — Prohibiting possession in close 
 season of trout taken outside the State, void, as infringing liberty and 
 property rights, and as beyond police power. 
 
 People u. Booth Co., 86 N. Y. S. 272. 
 
 99. L. 1897, Chap. 414, Sec. 230, amended by L. 1902, Chap. 591. 
 — Providing that buildings within 500 feet of hydrant may be as- 
 sessed although water not used, void, as taking without process. 
 
 Village of Canaseraga v. Green, 88 N. Y. S. 539. 
 
 100. L. 1902, Chap. 608. — Warehouseman may refuse to deliver 
 goods to holder of receipt when another claims them, and that he 
 shall not be made defendant in action unless he claims interest, void, 
 as taking without process. 
 
 97 N. T. S. 227. 
 
 101. L. 1903, Chap. 137.— Commutation for good behavior only 
 allowed to convict committed on definite sentence, void, as to of- 
 fenses committed prior to its passage. 
 
 People v. Johnson, 90 N. Y. S. 134. 
 
 102. L. 1903, Chap. 272.— Amending Penal Code, 640, Subd. 16, 
 prohibiting use of United States and State Flags for advertisement, 
 unconstitutional in part. 
 
 People ex rel. McPike v. Van De Carr, 178 N. Y. 425. 
 
 103. L. 1903, Chap. 461, Code Civ. Proc, Sec. 1391.— As amended 
 by L. 1903, special execution against income or profits of judgment 
 debtor, void, as to trusts created before its passage. 
 
 Sloane v. Tiffany, 93 N. Y. S. 149; King v. Irving, 92 N. Y. S. 
 1094. 
 
 1 " The scattering of men who and propagating a respect for 
 
 are taught reverence for existing obedience to the law on the part 
 
 institutions among the mass of of the other members of the com- 
 
 the people is of incalculable bene- munity.'' De Tocqueville, Vol. I, 
 
 fit in preserving order, property, p. 348. 
 
110 THE AMERICAN LAWYER. 
 
 ment or passion is aroused, the lawyer's influence 
 ought to be great. He becomes a breakwater 
 between the passions of excited citizens, and 
 the forms and rules of the law. 
 
 His trained habits of thought, his respect for 
 the law, his devotion to existing rules and forms, 
 all combine to make him a power of great impor- 
 
 104. L. 1904. — Privilege of witness provided for by Section 342 of 
 the Penal Code not coextensive with that afforded by constitutional 
 provision. 
 
 People ex rel. Lewisohn v. O'Brien, 176 N. T. 253. 
 
 105. L. 1904, Chap. 173, Code Civ. Proc, Sec. 793.— As amended 
 by L. 1904, Chap. 173, requiring courts in certain districts to arbi- 
 trarily regulate preference of causes, void, as depriving judiciary of 
 right to regulate the hearing by the circumstances of each case. 
 
 Riglanders. Star Co., 90 N. Y. S. 772 ; aff'd, 181 N. Y. 531. 
 
 106. L. 1904, Chap. 657. — Regulating trading stamps, void, as 
 outside police power. 
 
 People v. Zimmerman, 92 N. Y. S. 497. 
 
 107. About 1904. — Municipal ordinance allowing projections be- 
 yond building line, void, as taking without process. 
 
 McMillan v. Klaw, 95 N. Y. S. 365. 
 
 108. — Proposed amendment of charter of a corporation, L. 1853, 
 Chap. 463, organizing the Equitable Life Assurance Co., changing 
 method of electing directorate, void, as taking without process. 
 
 Lord v. Equitable, 94 N. Y. S. 65. (May 26, 1905.) 
 
 109. L. 1905, Chap. 697.— Authorizing special deputy commis- 
 sioner to revoke liquor tax license issued prior to passage, void, as 
 taking without process. 
 
 People v. Flynn, 96 N. Y. S. 655. 
 
 I pause here. There are some thirty-five additional acts declared 
 unconstitutional in the State of New York. Space will not permit 
 me to print them; besides, the list is already nauseatingly long. 
 
THE DUTIES OP A LEGISLATOR. Ill 
 
 tance, in these dangerous emergencies. As a 
 voluntary instructor, his advice and judgment 
 are received without suspicion or reserve. As 
 the maxim still prevails that every man is pre- 
 sumed to know the law, the occupation of a law- 
 yer, in his social sphere, as a free and voluntary 
 promulgator of it, becomes one of great impor- 
 tance. 
 
 The influence, of this body of calm, intelligent, 
 and trained oracles of the law, mingling without 
 reserve among all classes, is always in proportion 
 to the respect with which they are held by the 
 community. Judge Sharswood * says : 
 
 "It is its office (the Bar) to diffuse sound 
 principles among the people, that they may 
 intelligently exercise the controlling power 
 placed in their hands, in the choice of their 
 representatives in the legislature, and of 
 judgment in deciding, as they are often 
 caUed upon to do, upon the most impor- 
 tant changes in the Constitution, and above 
 all, in the formation of that public opinion 
 which may be said in these times almost 
 without a figure, to be ultimate sovereign." 
 
 The characteristics of the lawyers are identical 
 everywhere. Without premeditated or concerted 
 action, they instinctively act together in defense 
 of fundamental principles of liberty, justice, and 
 religion. They have the same training; they 
 
 1 Legal Ethics, p. 54. 
 
112 THE AMERICAN LAWYER. 
 
 are taught to observe form and order; to de- 
 termine questions by certain fixed principles, 
 based upon the fundamental maxims of social 
 and political right; to respect and preserve prec- 
 edents and existing institutions; to guard sa- 
 credly the rights of persons and property; and 
 the general similarity of their habits of thought 
 instinctively converts them into champions of 
 fixed principles, as opposed to temporary make- 
 shifts and frothy declamation. Yet they rarely 
 act as an organized body — never, in a truly 
 political sense. 
 
 De Tocqueville asserts * that, in all "free" gov- 
 ernments, of whatsoever form they may be, the 
 members of the legal profession will be found at 
 the head of all political parties. This is undoubt- 
 edly true, in the broadest sense, so far as the gov- 
 ernment of the United States is concerned, of 
 which he was writing. But in England, which is 
 certainly "free," no such exclusive privilege exists. 
 I cannot recall an instance, where a pure lawyer 
 has been a great leader in the House of Commons, 
 or even very great in Parliamentary debate. 
 Mansfield was noted in his time. Perhaps Brou- 
 gham comes nearest to it, but then, he was not a 
 "pure" lawyer. Some have been great there 
 when charged with a special mission, like Sir 
 Samuel Romilly, but that is different. The 
 
 1 " Democracy in America," p. 350. 
 
THE DUTIES OF A LEGISLATOE. 113 
 
 truth seems to be that the influence of the law- 
 yers in England, when not strictly official, has 
 been of the subtle kind — advocates and cham- 
 pions of justice, which, when best administered, 
 means the highest state of civilization. 
 
 In the United States, on the other hand, the 
 instincts, education, and training of the lawyers 
 fit and adapt them for political life, and from 
 the beginning of the government they have 
 almost exclusively occupied the leadership of 
 political parties. 
 
 A comparison between the English and Amer- 
 ican Statesmen and orators, in the aspect in which 
 I am here considering them, furnishes a most 
 striking picture of the difference between the 
 two governments. 
 
 The interpretation of a written Constitution, 
 from which most of our political history takes 
 its origin, ex necessitate rei, brings into public 
 life a large body of lawyers — professional, tech- 
 nical, constructionists — to the substantial ex- 
 clusion of the lay element of the community. 
 The Constitution of the United States becomes 
 the guide for most of our internal politics, and 
 American politicians must study it, as the sine 
 qua non, to political education and advancement. 
 Except in rare cases, it seems that their political 
 inspirations, and ideas, are limited and circum- 
 scribed, by that instrument. Even the tariff 
 
 H 
 
114 THE AMERICAN LAWYER. 
 
 legislation has been challenged, as contrary to the 
 Constitution. In the United States, therefore, 
 most of the greatest political acts, and efforts of 
 eloquence, have been inaugurated and inspired 
 by pure and technical constitutional lawyers; 
 whereas in England, as early as 1628, when Sir 
 John Eliot delivered his speech in the House of 
 Commons, on the petition of rights, down to 
 the present time, the great speeches have been 
 almost universally made by trained statesmen, 
 and political students, and the orations of 
 Walpole, Chatham, Chesterfield, Burke, Fox, Pitt, 
 Sheridan, Canning, and Gladstone and others 
 are carefully studied, as models of wisdom and 
 British eloquence. 
 
 In both countries, however, the sphere of the 
 lawyer's influence has been unlimited, and in 
 public and private life he has been a factor of 
 the greatest importance, in the administration 
 of all branches of the governments. 
 
CHAPTER VIII. 
 
 THE OBLIGATIONS OF A LAWYER. 
 
 I have heretofore, briefly, sketched the system 
 under which the lawyer is educated; the limi- 
 tations upon his right to practice; the nature of 
 his vocation, and his professional, political and 
 social relations, which prepares me to advance 
 a step further in the inquiry, and to endeavor to 
 ascertain the nature of his obligations, liabilities, 
 and duties. As this is not an essay upon the 
 technical liabilities of a lawyer to his client, in 
 damages, for a faithless, ignorant, or negligent 
 discharge of his duty, it is unnecessary to dilate 
 at any length upon this aspect of the subject. 
 At the same time, it is necessary that all of the 
 obligations should be defined and understood. 
 
 I use the word "obligations" in a general and 
 somewhat arbitrary sense. I also reverse the 
 natural and logical order of the subject, by 
 considering the "obligations" of lawyers before 
 their "duties." Logically, the "duties" of an in- 
 dividual, or of a class, should be, perhaps, first 
 ascertained, because when a "duty" exists, it gen- 
 
 115 
 
116 THE AMERICAN LAWYER. 
 
 erally carries with it a corresponding "obligation," 
 and the violation of an "obligation" involves or 
 creates a "liability." 
 
 The obligations which I am now to speak of 
 are well understood by the lawyers. They are 
 his technical legal "obligations" to his client. 
 
 These being ascertained and disposed of, I 
 am then in a position to deal with the "duties" 
 of a lawyer to the community, which never have 
 been, or perhaps never can be, enforced in civil 
 or criminal tribunals, existing, as they do, largely 
 in foro conscientice, but which, nevertheless, con- 
 stitute the most important attribute of the law- 
 yer's office. 
 
 By "obligations" of a lawyer, I mean to in- 
 clude all those of an enforceable character; all 
 those "obligations" in which the statutes, de- 
 cisions, or orders of the Courts have, expressly 
 or impliedly, defined the relations of the lawyers 
 to their clients, and the courts, and have ad- 
 judged their violation to create criminal, or civil, 
 liabilities. 
 
 There are three classes of these obligations: 
 first, those arising out of acts of professional 
 misconduct, for which he is liable to criminal 
 punishment; second, those acts for which he 
 cannot be proceeded against criminally, but 
 for which he may be disciplined by the courts, 
 acting without the aid of juries, and punished 
 
THE OBLIGATIONS OF A LAWYER. 117 
 
 by imprisonment, fine, or the cancellation or sus- 
 pension of his license to practice; and, third, 
 those for which he may be held liable to the party 
 injured in pecuniary damages. Some of these 
 acts fall under all three heads, others under two, 
 and still others under one. That is to say, a 
 lawyer may be criminally punished, he may 
 have his license revoked, and he may be liable 
 in damages to his offended client for his acts in 
 one transaction. Or, he may not be liable to 
 criminal punishment, but only in damages to his 
 clients, and to the revocation of his license. Or, 
 there may be no damages accrue from his acts, 
 yet, for deceit or misconduct, his license may be 
 revoked. 
 
 The first class of obligations, the neglect of 
 which entails a criminal liability, are generally 
 fixed by statute. For instance, in the State of 
 New York, an attorney or counselor who is 
 guilty of any deceit or collusion, or consents to 
 any deceit or collusion, with intent to deceive 
 the court or a -party, in addition to forfeiting 
 treble damages to the party deceived, is guilty 
 of a misdemeanor. 1 So an attorney buying a 
 bond, etc., or thing in action, with the intent, and 
 for the purpose of bringing an action thereon, is 
 guilty of a misdemeanor. 2 
 
 In these two enactments, the policy of the law 
 
 i Code, Sec. 70. 2 Code, Sec. 73. 
 
118 THE AMERICAN LAWYER. 
 
 is plainly pronounced, against deceits or collu- 
 sions of attorneys, and against the practice of 
 buying claims, of any kind, with the purpose of 
 bringing suits thereon. 
 
 What constitutes deceit or collusion, with intent 
 to deceive the Court, or a party, is a question of 
 fact, depending upon the peculiar circumstances 
 of each case. These are difficult offenses to prove. 
 Deceit lurks in the heart, and collusion always is 
 very subtly arranged; and it is only when the 
 fraudulent intent is brought to the surface, and 
 plainly revealed by acts, that the law can be 
 applied. A lawyer who deliberately sits down 
 to concoct or commit a fraud, can hide his tracks, 
 so effectually, in the boundless region of profes- 
 sional discretion, duty, or license, that it is diffi- 
 cult to detect them. But the first of the Statutes 
 to which I have alluded is a very important law, 
 yet to the credit of the Bar, an inactive one. 
 
 It is unnecessary to cite any more statutes of 
 a penal nature. They are spread upon the Penal 
 and Civil Codes, and the lawyers, young and old, 
 know them. 
 
 The second class of the lawyer's obligations, 
 however, for the violation of which he may be 
 disciplined by the courts, and punished by im- 
 prisonment, fine, or the cancellation or suspen- 
 sion of his license to practice, deserves more than 
 a passing notice. Such acts comprehend, in 
 
THE OBLIGATIONS OF A LAWYER. 119 
 
 general, everything which a lawyer does, or omits 
 to do, in violation of his duty towards, or in fraud 
 or deceit of, his client, or of the court; or of 
 any contumelious conduct in disobedience or 
 contempt of the latter. 
 
 These obligations are not generally defined by 
 statutes, or rules of court; but they exist almost 
 wholly in judicial discretion — in the conscience 
 of the courts. 
 
 The Bar seems to comprehend these offenses 
 by a species of intuition, for they embrace all 
 acts of bad faith, and moral misconduct, of the 
 lawyers, in their dealings with their clients, or be- 
 tween themselves. 
 
 It is important to note, that many acts which 
 would not subject any other class, of fiduciary 
 agents, to summary punishment, in the case of 
 lawyers, in their dealings with their clients, 
 have been held sufficient to justify the infliction 
 of severe penalties. 
 
 It is a principle of universal jurisprudence, 
 that lawyers in their dealings with their clients, 
 and with the court, must observe the strictest 
 rules of honor, fidelity, respect, and obedience. 
 They are held, therefore, to a standard of morals, 
 above and not below the average; a proof that 
 their morale at some time, and in some way, 
 was fixed at a level with their presumed attain- 
 ments, and corresponding to their opportunities. 
 
120 THE AMERICAN LAWYER. 
 
 Popularly, this is always lost sight of, when a 
 member of the profession incurs censure. 
 
 No one has ever successfully attempted, to 
 question the plenary power of the courts, to pun- 
 ish or discipline the lawyers, for any act which 
 they adjudge fraudulent, deceitful, disingenuous, 
 or contemptuous. 
 
 This extraordinary power of the courts, sum- 
 marily, to punish lawyers, by imprisonment, fine, 
 or to deprive them of their licenses to practice 
 law, without a trial and conviction by jury, is 
 put by judges on the ground that lawyers are 
 officers of the court, and that to inspire and 
 maintain a respect for the law, they must exer- 
 cise a plenary, summary, and almost arbitrary, 
 power over these legal agents. 
 
 Although the original ground upon which it is 
 placed, as I have more than once intimated, now 
 exists more in theory than in practice, the power 
 to discipline is unquestionable. 
 
 The spectacle of a lawyer acting amicus curice 
 is now altogether novel, and will soon disappear 
 from sight. 
 
 However, the courts, clinging to the old theory, 
 that he is an officer, judge him without mercy or 
 stint, when his professional conduct becomes 
 the subject of judicial review. Indeed, the dis- 
 cipline is so severe, that when a lawyer's conduct 
 comes to be questioned, he is under a positive 
 
THE OBLIGATIONS OF A LAWYER. 121 
 
 disadvantage, from the sensitiveness which the 
 judges display to maintain a high standard of 
 professional conduct. 
 
 But the number of cases which arise under 
 this second class of obligations, it must be said 
 to the honor and credit of the profession every- 
 where, when compared with breaches of trust 
 by other fiduciary agents, is not large; and it is 
 not a common sight, to witness the spectacle of 
 a lawyer, (especially one of any character or 
 prominence) arraigned in court, at the instance 
 of a client. 
 
 It speaks volumes, for the fidelity of a lawyer 
 to his client and his interests. 
 
 The one saving attribute for the lawyer, and 
 through him of society, is fidelity to the client. 
 Fidelity is the saving salt of human nature, and 
 ennobles whatever it touches. Subject to the 
 limitations which I recur to hereafter, when 
 discussing his "duties," 1 no risk is incurred to 
 the lawyer's morale by its exercise, and its ad- 
 vantages are incalculable. 
 
 It is not the exception, but the rule, for the 
 lawyer to surrender his whole mental, intellec- 
 tual, and physical power to his client's cause. 
 There are no sacrifices which he will not make, 
 and no dangers that he will not incur, to advance 
 the success of his employment. 
 
 i Post, p. 124. 
 
122 THE AMERICAN LAWYER. 
 
 Hence the lawyer is not often cited to answer 
 the complaints or grievances of his client; and 
 when such cases arise, they are generally accusa- 
 tions of withholding moneys, or disputes as to 
 compensation, in all of which instances, the strict 
 rules above referred to are enforced. 
 
 Little, therefore, can be found, in the history 
 of these infrequent controversies, which throws 
 light upon the duties of a lawyer to the State. 
 
 Men do not often publicly complain of the over- 
 zealousness of their servants; they do not arraign 
 them for extra fidelity to their interests, and 
 the clients are silent, even when the lawyers 
 overstep all decent, moral, and legal limits, in 
 their efforts for success. 
 
 The third class of the lawyer's obligations, for 
 the violation of which he can be made liable to 
 the party injured, in pecuniary damages, is of 
 little importance in this discussion. 
 
 As I have said, the violation of an obligation 
 creates a liability, and the lawyer is under a 
 common-law duty in respect to his employment, 
 the same as other agents and trustees. 
 
 The lawyer is bound to exercise honesty, skill, 
 prudence, and care, in the management of all 
 business committed to his hands, and his failure 
 to do so subjects him to the ordinary action for 
 damages, at the instance of his client. 
 
 The illustrations of this general principle are 
 
THE OBLIGATIONS OF A LAWYER. 123 
 
 to be found in many cases, in which their com- 
 mon-law duties have been defined by the courts, 
 and they have been sufficiently numerous, to 
 justify the publication of treatises, devoted es- 
 pecially to that subject. 
 
 The consideration of the above three classes 
 of obligations, is a necessary prologue to the im- 
 portant theme, of the lawyer's real relations and 
 duties to the State, now so undefined, obscure, 
 and misunderstood, which I shall proceed to dis- 
 cuss, in the hope that I shall at least open to the 
 profession, some of the difficult and delicate ques- 
 tions involved in the subject. 
 
CHAPTER IX. 
 
 THE "DUTIES" OF A LAWYER. 
 
 A "duty" in the sense in which I am now 
 considering the subject is, generally, the obliga- 
 tion to perform or exercise the functions of an 
 office in accordance with the nature thereof. 
 
 The general duty of a lawyer is, to perform 
 and exercise the functions of his office, in accord- 
 ance with its nature. 
 
 To ascertain this duty, one must understand the 
 true nature of the office. We speak of the duty 
 of a sheriff, of a constable, policeman, execu- 
 tor, or agent. To ascertain their several duties, 
 we must know the character of their functions 
 and of their powers. 
 
 I come now to encounter the most difficult, 
 and delicate part of my task, — to draw a line, — 
 between the duty of the lawyer to his client and 
 the State, and another between his conscience 
 and his client, in those matters where to act 
 for his client is a conscious wrong to the com- 
 munity, or to the rights of those to whom he is 
 opposed. Between these lines lay the whole power 
 124 
 
THE "DUTIES OF A LAWYER. 125 
 
 and influence of the lawyer for good or for evil. 
 Living up to the most exact standards of profes- 
 sional conduct and ethics, the affairs of business 
 and commerce, the ordinary conditions of society, 
 still remain, always opening to the Bar enormous 
 returns in money, reputation, and influence. 
 
 While no one can hope, that the lawyers, as a 
 class, will live up to the exact and best models 
 of duty, it is well to have the lines constantly 
 before the profession, so that they can realize 
 how near, or far, they are from ideal conditions. 
 It must be remembered that the profession of 
 the law is necessarily one where an almost bound- 
 less discretion is vested in its members. In its 
 general exercise, in the commencement and con- 
 duct of litigated or other legal matters, the lawyer 
 has the supreme power of direction. It lies 
 with him to suggest and to direct. There is no 
 arbiter over him, but his conscience. In a very 
 extensive search into the subject, I have found 
 that there has always been a recognized tempta- 
 tion, or tendency, on the part of the lawyers, to 
 overleap the bounds of conscience, and that 
 these acts have frequently called for very strin- 
 gent measures against them. For example, in 
 1237; as Matthew Paris informs us, and gives 
 us the text, the Papal Legate in the Great Coun- 
 cil held at London in that year, in the extensive 
 pronunciamento which he issued, and which was 
 
126 THE AMERICAN LAWYER. 
 
 intended to cover all of the evils of the age, 
 included a separate decree against lawyers, in 
 the following language: 
 
 "We have heard the cry of Justice, com- 
 plaining that it is greatly impeded by the 
 quibbles and cunning of advocates. . . . 
 We therefore, rising to the assistance of Jus- 
 tice, do, with the approbation of the council, 
 decree, that whoever wishes to obtain the 
 office of advocate shall make oath to the 
 diocesan in whose jurisdiction he lives, that 
 in cases in which he may plead, he will plead 
 faithfully not to delay Justice, or to deprive 
 the other party of it; but to defend his client 
 both according to law and reason. . . . 
 Let all advocates beware that they do not 
 themselves, or by means of others, suborn 
 witnesses, or instruct the parties to give 
 false evidence, or to suppress the truth; 
 those who do so shall be, ipso facto, sus- 
 pended from office and benefice until they 
 have made proper atonement for the same; 
 and if they are convicted for so doing, they 
 shall be duly punished, all other matters 
 notwithstanding. ' ' 
 The duty of a lawyer is threefold : — to the State, 
 as an officer and citizen; to the court, as an offi- 
 cer and adviser; and to his client, as a fiduciary. 
 He owes loyalty to the State, both as a citizen 
 and as a sworn officer of justice; he owes respect 
 and dignity in his deportment, to the courts, 
 and candor or honesty in his statements and 
 
THE "DUTIES" OF A LAWYER. 127 
 
 dealings with them; to his client he owes his 
 talents, his knowledge, his time, and his fidelity. 
 
 But it is impossible to separate this threefold 
 duty. It cannot be divided into parts. It is 
 like the Trinity, one complete, congruous, whole. 
 
 The lawyer cannot perform his duty to one of 
 these parties, and neglect the other two, any 
 more than he can serve two, and neglect the third. 
 He cannot be honest to the State, and dishonest 
 to the court and his client, any more than he 
 can be dishonest to the State and court, and 
 honest to his client. 
 
 In every employment which the lawyer re- 
 ceives, his primary duty is to the State. In 
 performing this duty, he can fulfill all of his obli- 
 gations to clients and courts with fidelity and 
 honor. If he attempts to go beyond this, he 
 strikes a blow at society. Why? Because he 
 is a part of the judicial system of the Govern- 
 ment. He is appointed to conduct judicial pro- 
 ceedings. If a conflict arise between his duty 
 to the Government and his Client, in which the 
 position of the State in its whole corporate ca- 
 pacity is clear (not a mere question of law, ap- 
 plicable to both, or a question of the rights of 
 the citizens, which is in fact the interest of the 
 State itself), he must decide in favor of the for- 
 mer, for the interest of that client is subordinate 
 to the interests of all the other citizens — con- 
 
128 THE AMERICAN LAWYER. 
 
 stituting the State — who are interested in main- 
 taining the integrity of the judicial system. 
 Salus populi suprema lex. His oath to main- 
 tain the laws, cannot be performed by giving 
 advice, or resorting to acts, which cause their vio- 
 lation. Of course, he should not prejudge, and 
 in cases of doubt he is free to act as his conscience 
 dictates, — honest doubt as to the law, or honest 
 doubt as to the facts. 
 
 Suppose constables and policemen receive 
 bribes from criminals to allow them to commit 
 crimes or to escape! Suppose magistrates and 
 judges receive bribes to allow criminals to go 
 unpunished ! 
 
 Everybody understands and appreciates the 
 effects of such acts, and all agree that a proper 
 punishment should be meted out therefor. 
 
 Yet how are these offenses worse than the 
 conduct of lawyers who, knowingly and deliber- 
 ately, sell their office, influence, and knowledge, 
 to aid or abet clients to take undue advantage 
 of the law? The former can be punished be- 
 cause the acts are capable of proof, but the latter 
 go unpunished because, sheltered in the breast 
 of the lawyer, there is no adequate legal evidence. 
 Is the one class of acts any less dishonest and 
 lawless than the other? 
 
 Policemen, constables, magistrates, lawyers, 
 each and all, are parts of the judicial system. 
 
THE " DUTIES " OF A LAWYER. 129 
 
 To bribe a policeman to shut his eyes while crime 
 is being committed; to corrupt a magistrate to 
 permit a criminal to escape; to pay a lawyer to 
 use his knowledge to defeat the law; what dif- 
 ference is there in these acts? Is the lawyer's 
 conduct less serious because it is hidden and 
 secret? The law is defeated, somebody is 
 wronged, and the occupation of the lawyer de- 
 graded. The difference is not in the degree of 
 the act, but in the difficulty of detection. When 
 a lawyer cheats the law, the act is so insidious 
 that it is almost undiscoverable. He works 
 under the guise of his employment, which is 
 protected all over by the sacred armor of the 
 legal principle, that his dealings with his client 
 are confidential, so confidential that he not only 
 cannot be made to disclose what takes place 
 between them, but he is absolutely prohibited 
 from doing so. Therefore he works with perfect 
 impunity. He is alone with his conscience. 
 The client is not apt to disclose a secret, or plot, 
 which is made for his own benefit, and the dis- 
 closure of which would result in getting him into 
 difficulty. The lawyer, therefore, can arrange 
 carefully and delicately the game which his client 
 is to play, to defeat the law — and when the job 
 is "put up" he can go into court, represent his 
 client, place the whole business upon the latter' s 
 shoulders, and wrest from justice and the law, 
 
130 THE AMERICAN LAWYER. 
 
 results to which the client is not entitled. In 
 the performance of this work, the lawyer artfully 
 puts forward the client. He insidiously fills 
 the latter with false pleas and defenses, and he 
 appears merely as the representative, whereas, 
 in fact, he is often the ■principal actor. Is not 
 this pure and simple dishonesty, and is not the 
 lawyer as corrupt as any other officer who takes 
 a direct bribe? 
 
 And it is immaterial if the lawyer concocts 
 the scheme, or knowingly aids the client in carry- 
 ing his own plans into execution. In the one 
 or the other, case, he is equally culpable. 
 
 I am bound to say, that the tendency of the 
 lawyer, in modern times, is to look to, and think 
 of, nothing else but the client's interests, and 
 the question as to how far his professional con- 
 duct affects the administration of justice, and 
 the general salutary condition of the State, is 
 almost lost sight of — indeed, few lawyers have 
 ever taken time to analyze their true relations 
 in this respect. They are satisfied if the client 
 is successful, and the general damage which such 
 success may have worked, to the law and society, 
 is rarely regarded by them. 
 
 It may also be safely said that the prevailing 
 popular idea of the lawyer, too often justified by 
 facts, is, that his profession consists in thwarting 
 the law instead of enforcing it. The modern 
 
THE "DUTIES OF A. LAWYER. 131 
 
 idea of a great lawyer is one who can most suc- 
 cessfully manipulate the law and the facts. The 
 public no longer calls them "great," but "suc- 
 cessful" lawyers. Not a great jurist, or profound 
 student, but a successful practitioner. In cast- 
 ing about for legal aid, one constantly hears 
 such phrases as these: "Whom shall we pick 
 out to break, defeat, or thwart this law?" "Go 
 to Smith; he is very clever and cunning and 
 will get you out of any difficulty." "Lawyer 
 Jones is your man; he can hoodwink the court 
 and fool the jury." "Brown has great influ- 
 ence with the court; employ him." "Do you 
 want time and delay I know the man for you." 
 Availability is sought for — not great legal talent 
 or learning. And the rights of the public ! They 
 are never thought of, much less considered. The 
 lawyer goes with the current — the more desper- 
 ate the causes he wins, the greater his reputation. 
 When he is at the zenith of his professional fame, 
 he can accept the flimsiest case with impunity, 
 and wrangle and wrestle it through the courts, 
 relying upon his past record, and, of course, wholly 
 indifferent to, or unconscious of, the interests of 
 law and of justice. 
 
 It is the common belief, inside and outside of 
 the profession, that the most brilliant and learned 
 of the lawyers are employed to defeat or strangle 
 justice. If a citizen gets into criminal trouble; 
 
132 THE AMERICAN LAWYER. 
 
 if he wishes to postpone paying his debts; if he 
 desires to enforce an illegal demand; if he wishes 
 to defeat a statute, or the policy of the law, he 
 makes choice (according to the magnitude and 
 delicacy of the questions involved, and of his 
 means), of the lowest "shyster" or the most 
 skillful counsel. In some instances, his neces- 
 sities call for a pettifogger, whose capital stock 
 consists of cunning and impudence, who falsely 
 brags of his intimacy with judges, and his ability 
 to postpone and delay; or, one whose force con- 
 sists in making flimsy assaults through processes of 
 the law ; or a braggadocio with a brazen counte- 
 nance and loud voice ; in others, the dishonest liti- 
 gant needs the services of a counselor — who stands 
 well socially and politically, but who sometimes 
 has not even a fair power of presentation. 
 
 It is believed that big fees will command the 
 leaders of the bar everywhere. It ,is as well 
 known as any other public fact, that the lawyers 
 of all classes can be hired by the first comer, in 
 any kind of a case, good, bad, or indifferent. 
 
 In this view, every lawyer might be regarded 
 as an intellectual prostitute, whose mind, whose 
 time, whose experience, knowledge, and influence 
 can be hired, and occupied, by any stranger, who 
 desires to comply with his terms, as to fees. 
 
 A successful lawyer, as thus understood, must 
 necessarily be guilty in the course of his practice, 
 
THE "DUTIES" OF A LAWYER. 133 
 
 of many dishonorable and disloyal acts to the 
 State, unconsciously sometimes, but often will- 
 fully. 
 
 If he be a man of fair natural, moral sense, or in- 
 tuition, he must suffer some qualms of conscience, 
 but by degrees these wear off — for it is the hand 
 of little employment that hath the daintier 
 sense — and he begins to regard it as his duty to 
 accept all of the cases which are proffered to him. 
 His acumen is sharpened, his devices become 
 more numerous, and in time he begins to regard, 
 with feelings of real triumph, the victories which 
 he wrests from the law, at the sacrifice of justice 
 and right. It is his highest glory to be able to 
 say, "I won that case," and his air is more tri- 
 umphant if it is a very bad one. There is noth- 
 ing secret, or underhand, about this part of the 
 lawyer's business. It has the approval of the 
 people everywhere. No one has ever, success- 
 fully, assailed the right of a lawyer to accept a 
 retainer and employment from any man, in any 
 case. The flimsiest defenses, or pleas, are inter- 
 posed by the leading lawyers — not by those in 
 the middle rank of the profession. 
 
 In fact, the community looks with perfect 
 complacency and composure upon a transaction 
 in which the leading lawyer sells his talent, his 
 knowledge, his time and influence, to the most 
 corrupt or infamous individual in the land; to 
 
134 THE AMERICAN LAWYER. 
 
 promote or sustain illegal acts, civil or criminal; 
 while, at the same time, condemning in the most 
 unmeasured terms the client and his perform- 
 ances; condemning the author and his acts, and 
 applauding the lawyer who shields and sustains 
 him! To-day a multi-millionaire, can take his 
 pick of the Bar, in any case. 
 
 All these anomalies in law practice, these para- 
 doxes in morals, are constantly witnessed. 
 
 Yet if one contemplates the true position which 
 the lawyer fills in the Government, as an auxil- 
 iary in the administration of justice, the evil 
 that must result to society, when he transforms 
 himself into an agent, for defeating the object 
 which he is created to promote, becomes apparent. 
 The idea of the Government licensing an army of 
 legal agents to defeat or delay justice, the exact 
 dispensation of which, is among the first purposes, 
 for which society is organized, is most extraordi- 
 nary and anomalous. Remember what I have 
 said about cases in which there is an honest 
 doubt as to the facts, or the law — bear in mind, 
 also in this connection, the right of everyone to 
 insist upon the exact forms and principles of the 
 law being applied. To such cases I do not refer. 
 I allude to those instances in which there is no 
 doubt, where the lawyer is deliberately made 
 an instrument to thwart the law and justice — 
 and he knows it. 
 
THE "DUTIES" OF A LAWYEB. 135 
 
 So those qualities of fidelity to, and sacrifices 
 for, the client, of which I have heretofore spoken, 
 and which are so often illustrated by lawyers in 
 their employment, and which, in the abstract, 
 are virtues highly to be extolled, are no longer 
 virtues, but become positive vices. 
 
 Let me not be misunderstood. I would not 
 abate one jot of a noble enthusiasm sustained by 
 one of the best principles of human nature — that 
 of fidelity — in those cases where it can in any wise 
 have a proper application. But surely there are 
 mistakes and excesses here, as in everything else, 
 that is good. A bad cause has had its votaries, 
 and blind attachment to the persons of individuals 
 has ended in ruin and even criminality. Fatuous 
 fidelity has no merit, taking it at its best. When 
 it claims exceptional privileges, as in the case of 
 the lawyer, it should be more closely scrutinized, 
 for it then accompanies a grave function and is 
 encompassed by many-sided duties. Who can 
 doubt that it should then be safeguarded by an 
 enlightened conscience? When it is so guarded, 
 there is in reality no choice of evils, no infidelity 
 either to the client or the State, for the duty to 
 the State begins at the point where the duty to 
 the client ceases, and both being bound up with 
 each other, and presumably of equally vital 
 necessity, they serve, in the mind of the advo- 
 cate, mutually to illustrate each other. A de- 
 
136 THE AMERICAN LAWYER. 
 
 termination, therefore, on the part of the advo- 
 cate, to devote himself at all hazards to the rescue 
 of his client at the expense of the Law, and, it 
 may be, of truth, can have no vindication from 
 the assumption that it is required by the prin- 
 ciple of fidelity. It is, rather, subversive of 
 that principle, rightly understood. Its evil ef- 
 fects, private and public, need no amplification. 
 They are with us, and around us, in plentiful 
 measure. 
 
 The lawyer's duty to his client is, to be honest, 
 faithful, skillful, and diligent, and he owes and 
 can justly give him nothing more. If his zeal, 
 cupidity for money, or desire for success or 
 notoriety, pushes him farther, he immediately 
 encroaches upon his duty to the court and the 
 State, and perverts and corrupts the adminis- 
 tration of justice. If, in the actual working of 
 any system of jurisprudence, a condition of 
 things exists in which fidelity to the client and 
 the duty to the court, to the law and society, 
 are in opposition to each other, then it is a sure 
 sign that the whole of that state of things, 
 system, courts, lawyers, and public opinion, needs 
 revising. 
 
 The lawyer's duty to society and the law 
 must be constantly kept before him, for, while 
 a single act, or all of the acts, of one lawyer may 
 not be enough to affect the foundations of justice, 
 
THE "DUTIES" OF A LAWYER. 137 
 
 the combined acts of a body of lawyers oft re- 
 peated, like an army of worms, silently and 
 secretly gnawing at the foundation of a great 
 and magnificent structure, will gradually but 
 surely cause it to give way and tumble into 
 ruins. It is perhaps not going too far to assert 
 that the lawyers, as a class, are largely answerable, 
 for the minimum of respect and obedience, which 
 the public has for the law. Atlas had not a 
 greater burden on his shoulders, than the respon- 
 sibilities of the lawyer in this regard. 
 
 One may not be able to trace the effect of a 
 single, or of a thousand, dishonest and illegal 
 practices of lawyers, upon the judicial system, 
 but if the wheels of justice become deflected, or 
 the law paralyzed, you may be sure that such 
 acts have contributed largely to the result. 
 
 Let anyone consider the effect of forty or 
 fifty thousand legal agents spending their lives 
 in distorting and prostituting the forms of jus- 
 tice, misapplying and perverting its principles, 
 undermining the constitution and laws, and he 
 can make fairly accurate calculations as to the 
 longevity, of the system of government, under 
 which they exist and thrive. 
 
 If the philosopher or critic is looking for evi- 
 dence of decay, let him carefully examine the 
 methods of practice, and the moral and intel- 
 lectual condition, of the legal profession — es- 
 
138 THE AMERICAN LAWYER. 
 
 pecially in this republican form of government, 
 where the influence of the lawyer is so potent 
 for good or for evil — and where in fact, every 
 branch of government, is dominated and ad- 
 ministered by him. 
 
 The general definition of duty, which I have 
 heretofore given, is sufficient, generally, to expose 
 to the lawyers, the just and proper limits of their 
 office. 
 
 The effort to cause them to follow and adhere 
 to a strict line of duty, as thus laid down, is 
 neither visionary nor impracticable. But I have 
 now reached a branch of the discussion where 
 the utmost delicacy, thought, and judgment 
 must be exercised in its treatment. In applying 
 these general principles to particular cases, a 
 vast area of debatable ground is opened, wherein 
 many distinguished, and honest, men have, and 
 may, disagree. It is impossible to state any 
 proposition concerning these duties, without con- 
 ceding that it is subject to numerous exceptions 
 and conditions. The whole question rests largely, 
 in an intelligent and awakened conscience, of the 
 lawyer himself. 
 
 But a satisfactory conclusion may be reached, 
 by keeping, in constant view, the true functions 
 of members of the Bar, and the exact nature of 
 the office which they fill, as I have heretofore 
 endeavored to portray it. 
 
THE "DUTIES" OP A LAWYER. 139 
 
 If the lawyers comprehend these things; if a 
 system of education is introduced, which brings 
 before them a clear conception of their position 
 in the government under which they live ; if their 
 consciences are educated and thus quickened; 
 if the cultivation of a high moral sense is made a 
 distinctive feature of their education, a different 
 class of lawyers would soon appear, and many 
 evils would gradually disappear. 
 
 As I have intimated, a review of the history 
 of lawyers from their origin, shows, that the legis- 
 lators and the courts have not been unmindful 
 of the constant temptation to this class, to wan- 
 der away from a strict line of duty, and to either 
 openly, or insidiously and secretly, commit many 
 wrongs in behalf of their clients. The profes- 
 sion of the law holds out a perpetual temptation 
 to human weaknesses. 
 
 The oaths administered to lawyers, upon their 
 admission, while far from being full and exact, 
 show that it has always been recognized, that the 
 lawyers possessed opportunities, to delay, illegally, 
 the course of justice, by the interposition of frivo- 
 lous, fraudulent, and unfounded defenses, and to 
 resort to, and use, many other deceitful and dis- 
 honest practices and schemes, to thwart and de- 
 feat just claims and demands. 
 
 These practices have varied, according to the 
 exigencies of their clients, or the conditions of 
 
140 THE AMERICAN LAWYER. 
 
 the times. But they have grown so general 
 and open, that they have almost come to be recog- 
 nized as a legitimate part of the lawyer's func- 
 tions. 
 
 Suitors of all kinds have freely availed them- 
 selves of the opportunities to delay, or avoid, 
 the payment of their just debts; and public 
 opinion has not only not closed its eyes to these 
 things, but it has openly encouraged, or approved, 
 them. 
 
 It is, therefore, not surprising, that in the course 
 of a research into these subjects, we find that 
 arguments have frequently been put forth, with 
 great solemnity and earnestness, to sustain the 
 lawyers in practices which were openly and 
 flagrantly dishonest, and about which it would 
 seem that no two just persons could disagree. 
 And this criticism is not only applicable to con- 
 temporaneous history. For instance, as show- 
 ing that the lawyers were in some respects no 
 better in ancient days than they are at the present 
 time, it was gravely debated in the sixteenth 
 century between the Doctor and Student: 1st, 
 Whether a lawyer, who knew the right and 
 legitimate heir of a property, was justified in 
 concealing that fact and of investing another, 
 who had no claim whatever to it, with the title 
 to the estate ; and, 2d, Whether if a lawyer knew, 
 and had the evidence, of the payment of a debt, 
 
THE "DUTIES" OF A LAWYER. 141 
 
 he was justified in concealing his knowledge, and 
 collecting the money a second time ! 1 
 
 The Doctor, happily for the age, was an honest 
 man, and had no difficulty in reaching a consci- 
 entious and righteous conclusion in the prem- 
 ises. 
 
 But there have been, since that time, frequent 
 discussions among lawyers and others, upon ques- 
 tions of legal ethics, which seem to be equally 
 as plain and simple in their solution, by the appli- 
 cation of the principles of common honesty, as 
 those to which I have referred above. None 
 more glaring can be cited than the sentiments 
 laid down by Lord Brougham, in his defense of 
 Queen Caroline, which have done incalculable 
 harm and damage to youthful, designing, or 
 resourceful lawyers. In that celebrated trial, 
 he said: 
 
 "I once before took occasion to remind 
 your Lordships, which was unnecessary, but 
 there are many who may be needful to re- 
 mind, that an advocate by the sacred duty 
 which he owes his Client, knows in the dis- 
 charge of that office but one person in the 
 world, that Client and none other. To save 
 that Client by all expedient means, to protect 
 that Client at all hazards and costs to all 
 others, and among others to himself, is the 
 
 i "Doctor and Student," Dialogue I, Chap. XV; Dialogue II, Chap. 
 VI; Dialogue I, Chap. XII. 
 
142 THE AMERICAN LAWYER. 
 
 highest and most unquestioned of his duties; 
 and he must not regard the alarm, the suf- 
 fering, the torment, the destruction which he 
 may bring upon any other. Nay, separating 
 even the duties of a parent from those of an 
 advocate, and casting them, if need be, to 
 the wind, he must go on reckless of the con- 
 sequences, if his fate it should unhappily be to 
 involve his country in confusion for his Client's 
 protection." 
 I heard a lawyer use this quotation in the 
 defense of William M. Tweed — and then, to 
 make "Ossa like a wart," he piteously added, 
 "I have learned to love William M. Tweed!" — 
 which perhaps he might properly have done, 
 but he need not have used Brougham, and his 
 love together. 
 
 There perhaps never was language written, 
 or spoken, which contained worse doctrine than 
 that which I have just quoted, of Brougham, 
 and yet it has been relied on over and over again 
 by lawyers, to cover all kinds of dishonest prac- 
 tices and defenses, and the great name of Lord 
 Brougham is still used, to sustain many ridiculous 
 and false positions of advocates, despite the fact 
 that, as far back as 1859, the author of those de- 
 structive and unfounded views, in a letter to 
 Mr. Fo^th, 1 publicly repudiated them by say- 
 ing that they were used as a sort of political 
 
 i Forsyth's "History of Lawyers," p. 380, Ed. 1875. 
 
THE "DUTIES" OF A LAWYEB. 143 
 
 menace. A better defense might be, that it was 
 the exaggeration of an impassioned advocate, 
 defending an innocent woman whose situation 
 called for the utmost sympathy of chivalric 
 natures. But in any rational view it was wholly, 
 unmitigatedly, and disastrously bad. In the dis- 
 cussion which ensued, men like Coleridge, whose 
 opinion I quote, 1 had no difficulty in discerning 
 the proper limitations; but it exactly suited 
 the caliber of those who were to profit by it, and 
 it has stuck like a burr to the profession ever 
 since. And Macaulay, in his Essay on Bacon, 
 left it to his readers to say: 
 
 "Whether it be right that a man should, 
 with a wig on his head, and a band round 
 his neck do for a guinea, what without those 
 appendages, he would think it wicked and 
 infamous to do for an empire; whether it 
 be right that, not merely believing, but 
 knowing a statement to be true, he should 
 do all that can be done by sophistry, by 
 rhetoric, by solemn asseveration, by indig- 
 nant exclamation, by gesture, by play of 
 
 i "Table Talk," Oct. 27,1831: may be able to produce. But 
 
 "There is undoubtedly a limit to the advocate has no right, nor is 
 
 the exertions of an advocate for it his duty to do that for his 
 
 his client. He has a right, it is client which his client in foro 
 
 his bounden duty, to do every- conscientim has no right to do for 
 
 thing which his client might hon- himself; as, for a gross exam- 
 
 estly do, and to do it with all the pie, to put in evidence a forged 
 
 effect which any exercise of skill, deed or will knowing it to be so 
 
 talent or knowledge of his own forged." 
 
144 THE AMERICAN LAWYER. 
 
 features, by terrifying one honest witness, 
 by perplexing another, to cause a jury to 
 think that statement false." 
 
 I deem it, therefore, important to specify 
 some of those acts, which I think must be con- 
 ceded to be clear violations of the lawyer's 
 duty, leaving other acts, or courses of profes- 
 sional conduct, to be governed by the general 
 principles which I have endeavored heretofore to 
 state : 
 
 (a) To knowingly commence suits for the 
 recovery of unjust and unfounded claims; 
 or to continue their prosecution, when they 
 are discovered to be false and without foun- 
 dation in fact. 
 
 As an act of this kind involves pure dishonesty, 
 it would seem to be only necessary to state it, 
 to prove it. And yet even so pure a man as 
 Judge Sharswood, 1 unintentionally, throws doubt 
 upon the subject, by asserting that the lawyer 
 "is not morally responsible for the act of the 
 party in maintaining an unjust cause," and that 
 "when he (the lawyer) has once embarked in a 
 case, he cannot retire from it, without the consent 
 of his client or the approbation of the court." 
 
 No sophistry can obscure such a position as 
 being wholly against the common principles of 
 
 i Legal Ethics, pp. 83, 84, 85. 
 
THE "DUTIES" OF A LAWYER. 145 
 
 honesty, and the true nature of the lawyer's 
 office. 
 
 And Sharswood corrected whatever unfavor- 
 able inference might be drawn from the above 
 remarks, by clearly affirming, in a subsequent 
 part of his book x that "Counsel has an undoubted 
 right, and are in duty bound to refuse to be con- 
 cerned for a plaintiff in the legal pursuit of a de- 
 mand which offends his sense of what is just and 
 right." 
 
 The object in creating courts was to administer 
 justice. How, then, can one of the principal 
 sworn agents of the law be justified in knowingly 
 aiding and abetting unfounded and dishonest 
 suits? Upon what principle can he use the 
 machinery of the law to accomplish results con- 
 trary to justice, truth, right? How can the law 
 be efficacious, if it is slaughtered in the tem- 
 ple of justice, by its own chosen guards? What 
 is to become of the sanctuary when the priest 
 turns atheist? 
 
 A lawyer, with knowledge of the facts, is "mor- 
 ally responsible" for the act of a party in main- 
 taining an unjust cause, because he is willfully 
 stabbing justice, and aiding in the "injuria," which 
 it is the object of all law to prevent or remedy. 
 
 If anything can be more distinctly immoral, 
 I cannot conceive it. 
 
 i Ibid. p. 96. 
 
146 THE AMERICAN LAWYER. 
 
 There may be some room for a question, as to 
 the form and method which a lawyer should 
 adopt in retiring from a ease which he discovers 
 to be dishonest, but that he should desert it, 
 at once, upon the acquisition of the knowledge, is 
 perfectly clear. 
 
 By existing rules of law, a lawyer is forbidden 
 to betray the secrets which come to him under 
 guise of professional confidence; and he cannot, 
 perhaps, walk into court and loudly proclaim 
 the dishonesty of his client, — but there is always 
 an easy avenue of escape from such a situation, 
 without violating the privilege above referred 
 to, and there is no real excuse for not promptly 
 abandoning such a cause. A man who is con- 
 ducting a dishonest case, should feel no disappoint- 
 ment in failing to secure legal assistance, to help 
 him cheat justice; and frequent rebukes of this 
 kind, from the Bar, would have a quick and 
 exhilarating effect, upon the morals of the liti- 
 gating community. 
 
 If a layman combines with, or assists, his 
 friend, or business associate, in defrauding an- 
 other of his rights or property, the world has 
 never altered its views as to the nature of the 
 act, and of its entire and unmitigated immorality. 
 And the lawyer, in aiding his client to do the 
 same kind of an act, is guilty of a deeper and 
 more striking offense — because, in addition to 
 
THE 'DUTIES" OF A LAWYER. 147 
 
 the innate immorality of his conduct, he violates 
 his oath and duty as an officer of the law. 
 
 Many apposite quotations could be cited from 
 the writings of moralists to sustain these views, 1 
 but I deem them superfluous, for I believe the 
 subject is perfectly clear, when the true char- 
 acter of the lawyer is understood and considered. 
 
 They are, however, strikingly confirmed by 
 the oath of office administered to an Avocat in 
 France, which requires him "de refuser les causes 
 dont il connaitrait l'iniquite." 2 
 
 (6) To knowingly postpone, delay, or de- 
 feat, just and legal claims or demands. 
 
 This is one of the besetting sins of modern 
 legal practice; but perhaps it is not more so in 
 degree now than in the past. Legal controver- 
 sies, however, have increased to such enormous 
 proportions that there is little doubt but that 
 such a practice, openly indulged in, talked about, 
 and encouraged, has a direct and deep influence 
 upon the morals of the lawyers, and upon society 
 in general. When the laws can be easily 
 thwarted, the moral sense of the whole com- 
 munity is deadened. 
 
 It has almost come to be a proverb in the 
 
 1 See especially Whewell, "Ele- 2 "Usages et Regies de la Pro- 
 
 ments of Morality," b. II, c. XV, fession dAvocat," etc., par M. 
 S. 303. Cresson, Vol. I, p. 17. 
 
148 THE AMERICAN LAWYER. 
 
 law — at all events, it is the general open boast 
 of lawyers — that any just and legal claim, may 
 be almost indefinitely postponed, by a resort to 
 technical and dishonest defenses and excuses. 
 There is hardly a lawyer who has not felt justified, 
 at some step of his career, in resorting to such 
 practices. 
 
 And yet, when the subject is examined even 
 in the most narrow light of the lawyer's func- 
 tions and duties, it becomes perfectly plain 
 that these practices, of defending or postponing 
 just and legal claims, must inevitably be to the 
 detriment of the principles of the law and justice. 
 The demoralization which is produced, is as great 
 as the violation of any other plain duty. 
 
 Sharswood dwells upon one aspect of this 
 subject in the following language: 
 
 "A man comes to him (his lawyer) and 
 says: 'I have no defense to this claim, it is 
 just and due, but I have not the means to 
 pay it; I want all the time you can get for 
 me.' 
 
 This, no doubt, presents an every-day picture, 
 in the life of a lawyer, and sometimes the deepest 
 consequences to friends, family, and future pros- 
 pects, are involved in it. The appeal comes to 
 the lawyers, often, in a form which is almost irre- 
 sistible. 
 
 i Legal Ethics, p. 116. 
 
THE "DUTIES" OP A LAWYER. 149 
 
 Judge Sharswood evidently felt the delicacy 
 of the question, and he meets it by ingenuously 
 saying that, in such a case, an application should 
 be made to the plaintiff for time! But, appre- 
 ciating the prompt refusal which generally re- 
 sults from such application after suits have been 
 instituted, he says: "If, however, that be im- 
 practicable, it would seem that a suitor has a right 
 to all the delay, which is incident to the ordinary 
 course of justice. The counsel may take all means 
 for this purpose which do not involve artifice or 
 falsehood in himself or the party." (p. 116) 
 ". . . The formal pleas put in are not to be con- 
 sidered as false in this aspect, except such as are 
 required to be sustained by oath." 
 
 Of course, when Sharswood wrote his little 
 book, Pennsylvania existed under a pure com- 
 mon-law practice, and the declarations and pleas 
 were not under oath. But that circumstance does 
 not alter the principle, which I am here discussing. 
 
 There is no doubt, that many lawyers have 
 received encouragement, in the practice of inter- 
 posing technical defenses, to just claims, from 
 arguments or reasoning of this kind, and it has 
 made the practice more common and extended. 
 The difficulty is that, by the abandonment of 
 the lawyer's plain field of duty, consequences 
 ensue which are disastrous to the proper ad- 
 ministration of justice. 
 
150 THE AMERICAN LAWYER. 
 
 The plaintiff, or owner of an undisputed claim, 
 has rights. He is entitled to have them vindi- 
 cated, when they are refused, or disregarded, 
 and the courts are established for that purpose. 
 If these rights are postponed or defeated, the 
 consequences may be as disastrous to the claim- 
 ant as to the debtor. Where is the line to be 
 drawn? Certainly not between the formal pleas 
 not under oath, and those which are attested by 
 an affidavit. 
 
 The one is equally as false as the other, and in 
 this aspect the form of the defense, if unsupported 
 by merit, is equally objectionable in conscience 
 and truth. 
 
 There is no act which has brought upon the 
 administration of the law more reproach, if not 
 contempt, than these unrighteous and unjusti- 
 fiable delays, procured by attorneys, for necessi- 
 tous and dishonest suitors. 
 
 'Individuals frequently abandon their legal 
 rights, rather than embark upon the doubtful 
 voyage of a litigation, which may end in the far 
 future, and involve such expense, annoyance, and 
 trouble as substantially amount to a loss of their 
 claims. 
 
 "Go to law and lose it all;" "go to law and be 
 involved in endless litigation and expense;" 
 "give it to the lawyers and be done with it;" 
 are expressions that are familiar to everyone. 
 
THE DUTIES OF A LAWYEE. 151 
 
 The "law's delay" has been proverbial, in 
 English history, from time immemorial, but its 
 origin and continuation, were based upon grounds, 
 very different from those which are now invoked 
 to support it. So far as I can discover, these 
 delays were to a considerable extent the result 
 of the intricacies and forms of pleadings, and the 
 respect paid to them by the lawyers and the 
 courts, and without doubt many dishonest suitors 
 sought refuge for time, and procured postpone- 
 ments under their cover. In Chancery proceed- 
 ings the delays were cruelly long and unjust, 
 and Jarndyce v. Jarndyce, is not an exaggerated 
 illustration of them. It may be conceded, that 
 the general tendency of modern times, has been 
 towards greater rapidity, in the transaction of 
 legal, as well as other, business, but the criticism 
 of delays predicated upon false and dishonest 
 defenses is not answered by a recourse to the past. 
 These delays constitute to-day a crying, open, 
 wholesale, shameful reproach upon justice, which 
 threatens the very fabric of jurisprudence. A 
 hardly appreciable evil, which, in Shakespeare's 
 age, was sufficient to attract that great poet's 
 satire, has now grown to such dimensions, as to 
 involve all of the legal agents, and the adminis- 
 tration of justice itself — it is applicable to a whole 
 system. 
 
 Its danger lies in the fact that it has permeated 
 
152 THE AMERICAN LAWYER. 
 
 all classes of society, and citizens everywhere 
 unblushingly use the lawyers to procure uncon- 
 scionable delays, and to thwart and defeat the 
 payments of their just debts and demands. 
 
 These practices, so evil in themselves, must 
 likewise be dangerous. Whatever corrupts the 
 community, also threatens institutions. In the 
 connection which exists between the Law, and 
 those who are charged with its administration, 
 all that subverts the morale of the latter, must 
 be dangerous to the former, as an instituted or- 
 ganism, and if to one such vital organism, both 
 directly and reflectively, to all. 
 
 Before I close under this head I must advert to 
 a most vicious practice of lawyers, in lending the 
 influence of their office, legal ability and experi- 
 ence, to thwart the right of individuals to dispose 
 of their property by will. No more sacred or in- 
 teresting right grew up with the growth of juris- 
 prudence. The importance of rigidly guarding 
 this power is so apparent that I need not dwell 
 upon it. The rule of permitting an individual to 
 bestow his property upon his death according to 
 the dictates of his will, judgment, or even caprice, 
 grows out of reasons which operate to sustain 
 and make healthy the social organization. It 
 is an incentive to ambition; it invites prudence 
 and economy; it is a powerful weapon for the 
 proper education and discipline of families; it 
 
THE "DUTIES' OF A LAWYER. 153 
 
 teaches charity, and it generates a respect for 
 law and order. 
 
 But the lawyers have rendered this plain prin- 
 ciple of law nugatory. Upon feigned, and as- 
 sumed grounds, they break wills, and frustrate 
 the testator's intention, until the doctrine of tes- 
 tamentary disposition has come to be almost a 
 mockery. No will is safe from their brazen and 
 shameful attacks, and when they are successful, 
 property is wrested from devisees and legatees, 
 and, generally, given to persons whom the testators 
 deliberately, intentionally and expressly desire not 
 to have it. The sacred right becomes nugatory. 
 
 (c) A lawyer is not justified in using or 
 resorting to dishonest means or practices in 
 the defense of persons accused of crime. 
 
 The question whether an advocate should 
 defend a person for a crime of which he knows, 
 or believes, him to be guilty, has always been a 
 favorite topic for discussion, in, and out of, the 
 legal profession. 
 
 I do not intend to avoid the last-named issue 
 by seeking refuge behind this third (c) proposi- 
 tion, which I have just laid down. I believe, 
 however, that the subject, when fully understood, 
 has less practical importance than is generally 
 ascribed to it. 
 
 In the outset, it is necessary to clearly define, 
 
154 THE AMERICAN LAWYER. 
 
 what is meant by a "knowledge or belief," of the 
 guilt of the accused person. 
 
 If the lawyer has personal knowledge of the 
 crime; if he is present at, or sees, its commission, 
 he is a witness, the same as any layman, and 
 consequently would, for obvious reasons, be prac- 
 tically disqualified from acting as an advocate. 
 
 He may also derive his knowledge of a crime, 
 from a voluntary confession, made to him by his 
 client. 
 
 In such a dilemma, what is his duty? His 
 mouth is closed by the law, even if he should 
 wish to speak, because the law prevents him from 
 disclosing information, communicated to him in 
 his professional capacity. 
 
 Should he continue to act as the advocate in 
 such a case? Nothing can be gained by an en- 
 deavor to answer such hypothetical or suppos- 
 ititious questions. They depend, largely, upon 
 the peculiar circumstances of each case, and 
 must be conscientiously determined by the law- 
 yer when they arise. It may be, that there is a 
 full, technical, case against the accused, without 
 his confession — which fact might influence the 
 lawyer as to one course of conduct. On the 
 other hand, there might be a defect in the tech- 
 nical proof against the defendant, which the con- 
 fession would supply. Should the lawyer advise 
 his client to plead guilty? Suppose he gave 
 
THE "DUTIES" OF A LAWYER. 155 
 
 such advice and the client refused to follow it? 
 I repeat that each case must be determined as 
 it arises, in view of its peculiar circumstances, 
 keeping in sight the general principles which I 
 shall hereafter, briefly, refer to. 
 
 What is, generally, meant, therefore, when the 
 question is asked if a lawyer should defend a 
 person accused of crime whom he "knows or be- 
 lieves" to be guilty, is, that his knowledge, or 
 belief, is derived from sources of information 
 which are open to everybody, and upon which 
 men generally form and base their opinions — 
 viz., through the Press, and from current and 
 public report and rumor. No important crimi- 
 nal act is committed, which is not quickly com- 
 municated to the public, and about which the 
 community, and lawyers in common, do not, 
 promptly, form an opinion. 
 
 With an opinion of guilt, based upon such 
 sources of knowledge and belief, is a lawyer 
 justified in defending the culprit? With this 
 moral conviction of guilt upon his mind, has he 
 the right to espouse such a cause? 
 
 I think there can be no grave doubt as to his 
 complete right to do so. 
 
 The court certainly can assign counsel, to 
 defend all cases, in which prisoners have none; 
 and their duty, as officers of the court, would 
 compel them to obey such orders. 
 
156 THE AMERICAN LAWYER. 
 
 The right of the lawyer, to defend persons 
 accused of crime, rests upon broad and well- 
 grounded principles. There must necessarily ex- 
 ist in every community, governed by law, exact 
 and clear definitions of crimes, as well as certain 
 forms and rules for the trial of offenders. These 
 are indispensable conditions, to an intelligent, 
 and humane, administration of criminal juris- 
 prudence. 
 
 A person accused of crime, is entitled to demand 
 that each, and all, of these conditions, should be 
 satisfied, before he is convicted. 
 
 No system of criminal jurisprudence could 
 exist, without such general rules. 
 
 While there is no doubt that, at times, the appli- 
 cation and enforcement of these forms of criminal 
 procedure, prevent the conviction and punish- 
 ment of guilty persons, yet, upon their continu- 
 ance and stability, depend the very existence of 
 social organization. 
 
 For instance, a cold and atrocious murder 
 may be committed, the person who committed 
 the bloody deed discovered and arrested; and 
 the mind of the community morally convinced 
 of his absolute guilt; yet if all of the witnesses 
 who had knowledge of it should die, the guilty 
 man would go unpunished. The requirements 
 of the law could not be met, and justice would 
 be thwarted. 
 
THE "DUTIES" OF A LAWYER. 157 
 
 A lawyer's right and duty, are, to demand that 
 his client, charged with crime, should be pro- 
 ceeded against in a legal and orderly manner, 
 notwithstanding his own moral conviction of 
 guilt. If the elements constituting the crime 
 charged, are lacking; if the forms of the law are 
 not complied with; it is his duty to urge and 
 demand the acquittal of his client. In doing 
 this, he performs a double duty — one to the 
 community, in preserving and upholding the 
 forms of the law, and the other to his client. 
 
 No finer or nobler exhibition of his real duty 
 to the State, can be imagined, than the position 
 of the lawyer, under such circumstances. 
 
 As Erskine eloquently, almost passionately, 
 said: 
 
 "I will for ever, at all hazards, assert the 
 dignity, independence, and integrity of the 
 English Bar, without which, impartial justice, 
 the most valuable part of the English Con- 
 stitution, can have no existence. From the 
 moment any advocate can be permitted to 
 say that he will or will not stand between the 
 crown and the subject arraigned in the court 
 where he daily sits to practice, from that 
 moment the liberties of England are at an 
 end. If the advocate refuses to defend, from 
 what he may think of the charge or of the 
 defense, he assumes the character of the 
 judge; nay, he assumes it before the hour 
 of judgment, and in proportion to his rank 
 
158 THE AMERICAN LAWYER. 
 
 and reputation, puts the heavy influence of 
 perhaps a mistaken opinion into the scale 
 against the accused, in whose favor the 
 benevolent principle of English law makes all 
 presumptions, and which commands the very- 
 judge to be his counsel." 
 
 This utterance, as is known, was made in a 
 great public case, yet the principle applies to 
 every case where law can be invoked in behalf 
 of a party. A lawyer can always demand that 
 the forms of the law should be complied with 
 and upheld. 
 
 I do not place the right of the lawyer, to defend 
 a client, whom he believes to be guilty, upon the 
 ground that he cannot know that his client is 
 guilty, until his guilt has been officially and finally 
 declared, by a court and jury, because he often 
 does know, in the sense that he has a moral con- 
 viction of the guilt of his client, which he has 
 derived, through the ordinary channels of in- 
 formation. 
 
 I place the right of the lawyer upon the ground 
 that he is an officer of the law, and that it is his 
 duty to see that the forms of the law are carried 
 out, quite irrespective of individual knowledge. 
 
 The argument that the lawyer cannot know 
 of the guilt of his client until he has been offi- 
 cially adjudged so, might be used with equal 
 force by an accessory after the fact. Why could 
 
THE DUTIES " OF A LAWYER. 159 
 
 not every accessory after the fact declare, with 
 the same reason as the lawyer, that he could not 
 know that a crime had been committed, because 
 the person whom he had assisted, had not been 
 adjudged judicially guilty? In every civilized 
 government, rules are adopted in the body of 
 the criminal jurisprudence, to punish, severely, 
 all persons who aid, or abet, in the commission of 
 crime, or who, after its commission, aid, or abet, 
 a criminal to escape detection, capture, or pun- 
 ishment. An accessory before, or after the fact, 
 is recognized as almost as bad as the principal 
 criminal. 
 
 An accessory after the fact is a person who 
 knows a felony to have been committed, and who 
 relieves, comforts, or assists the felon. There- 
 fore, to make an accessory ex post facto, it is in 
 the first place requisite that he knows of the felony 
 committed. And generally any assistance what- 
 ever, given to a felon to hinder his apprehension, 
 trial or punishment makes the assistor an acces- 
 sory, — as, furnishing him with a horse to escape 
 his pursuers, money or victuals to support him, 
 a house or other shelter to conceal him, or open 
 force and violence, to rescue or protect him. And 
 so strict is the law, where a felony is actually 
 complete, in order to do effectual justice, that 
 the nearest relations are not suffered to aid or 
 relieve one another. If the parent assists his 
 
160 THE AMERICAN LAWYER. 
 
 child, or the child the parent, if the brother 
 receives the brother, the master his servant, or 
 the servant his master, or even if the husband 
 receives his wife, who have any of them com- 
 mitted a felony, the receivers become accessories 
 ex post facto. A married woman, however, does 
 not come within this rule, because she is presumed 
 to act under the coercion of her husband. 
 
 We see, therefore, for the maintenance of 
 society, with what strictness and severity, the 
 hand of the law is uplifted against those who aid, 
 or shelter, or assist, criminals to escape their just 
 and necessary punishment. 
 
 But the lawyer's duty is not to aid or assist 
 the guilty to escape — although that may be the 
 result of his efforts — but it is to see that the forms 
 of the law are maintained. To do this he can 
 employ his knowledge and experience, and all 
 of the arts of advocacy in his attempts to ac- 
 quit clients, without a resort to dishonest and 
 covert means and practices. 
 
 If these views be correct, it would seem to fol- 
 low, that the lawyer's duty, to defend a person in 
 those cases where he has a belief, or a moral 
 conviction, of the guilt of his client, is quite clear. 
 
 And the community cannot suffer, if he simply 
 confines his efforts to demanding that the forms 
 and rules of the law be carried out. 
 
 I do not believe that any real service can be 
 
THE DUTIES OF A LAWYER. 161 
 
 rendered to the profession by pursuing this line 
 of thought further; or in considering any more 
 specific propositions. With a full conception 
 of the general nature of his duties, it is with the 
 lawyer himself to determine, whether he will aid, 
 or defeat, justice. No special rules can be laid 
 down, for all kinds of conditions constantly con- 
 front him. 
 
 Keeping in view that he is an officer of the 
 court in the real meaning of the term, that a 
 court is a place where justice is judicially ad- 
 ministered, and the remarks of an eminent Equity 
 Judge, Lord Langdale, 1 that "lawyers are min- 
 isters of justice, acting in aid of the Judge before 
 whom they practice" — the lawyer cannot go far 
 astray, in the discharge of his duty. 
 
 In the complete performance of the latter, the 
 lawyer becomes the most useful and important 
 member of the community — a true patriot of 
 his country, a faithful and intelligent representa- 
 tive of his client, and a useful officer of the court. 
 
 And Christopher St. Germain, the author of 
 the immortal Dialogues between a Doctor and 
 a Student, of the Laws of England, nearly four 
 centuries ago, 2 laid down in beautiful but strong 
 language, a rule which, if it could be followed, 
 would give us a race of ideal lawyers at once : 
 
 1 l Keen, " Reports in the Rolls * "Doctor and Student," p. 15. 
 
 Court," p. 659. 
 
 K 
 
162 THE AMERICAN LAWYER. 
 
 "As a light is set in a lantern, that all that 
 is in the house may be seen thereby, so Al- 
 mighty God hath set Conscience in the midst 
 of every reasonable soul as a light whereby 
 he may divine and know what he ought to 
 do, and what he ought not to do. Where- 
 fore, forasmuch as it behoveth thee to be occu- 
 pied in such things as pertain to the law, it is 
 necessary that thou ever hold a pure and clean 
 conscience." 
 
 "And I counsel thee, that thou love that 
 which is good, and fly that which is evil; 
 that thou do to another, as thou wouldest 
 should be done to thee; that thou do nothing 
 against Truth; that thou do justice to every 
 man as much as in thee is; and also that 
 in every general rule of the law, thou do 
 observe and keep equity. And if thou do 
 thus, I trust the lantern that is in thy con- 
 science shall never be extincted." 
 
 But this conscience, which should guide the 
 lawyer, comes of training and education. It is 
 not wholly innate, it doth not spring up spon- 
 taneously or by intuition; it is the result of an 
 exact and perfect study and comprehension of 
 the office and duties of a lawyer. It should be 
 made the first, and most important, part of his 
 legal education. Along with, and as part of it, 
 the lawyer is bound by study, self-denial, and 
 genuine hard work, at some time to master the 
 history and science of the Law itself; and then, 
 
THE " DUTIES " OF A LAWYER. 163 
 
 by a course of liberal reading, he should enlarge 
 his sympathies, and seek to eliminate from his 
 mind all narrow prejudices of nationality, race, 
 and creed; that his standards of men should 
 not be the abuse of the ideal, and run into the 
 impractical and visionary, on the one hand, or 
 the self-asserting, or flippant, on the other; but 
 humane and generous, keeping in view, always, 
 the limits fixed by nature and circumstances. 
 All his powers, otherwise, even when accom- 
 panied by mere honesty of purpose, may become 
 the cause of great evils. 
 
 To a man so equipped and prepared, the vision 
 of his whole duty, is soon opened to him, in the 
 clearest and fullest sense. 
 
CHAPTER X. 
 
 CAUSES AND REMEDIES. 
 
 The seeds of reform are of slow growth. They 
 very rarely produce a full crop in the season in 
 which they are sown. They bear fruit, scatter- 
 ingly. An old and pernicious system, cannot be 
 extirpated, as one would raze a house, and build 
 a new one in its place. A conspicuously rotten 
 plank may be replaced by a new one, until by 
 degrees the whole edifice is sound. Therefore 
 it would be useless, to attempt to reform, the 
 present generation of lawyers, as a whole, for 
 they are, inextricably, involved in the meshes of 
 codification, and its evil results. The ground can 
 be prepared, now, and new ideas of reform pro- 
 mulgated, which, will take effect upon the next 
 generation, and it can be hoped, that eventually a 
 new race of lawyers will appear, divided into two 
 classes, — Attorneys, or Solicitors, and Counselors, 
 or Barristers. 
 
 I proceed now to classify the existing con- 
 ditions and their causes, and to suggest remedies, 
 which, in my opinion, will essentially mitigate, 
 if not exterminate, existing evils. 
 164 
 
CAUSES AND REMEDIES. 165 
 
 FIRST: THE FIRST CRITICISM IS THAT THERE 
 ARE GENERAL DEFICIENCIES, IMPERFECTIONS, AND 
 LOOSENESS IN THE PRELIMINARY, ELEMENTARY, 
 AND LEGAL EDUCATION OF LAW STUDENTS. 
 
 I. Insufficient educational requirements and 
 examinations preliminary to matriculation as 
 a legal apprentice. 
 
 Reform of the law cannot be superficial. It 
 must go to the root of the evil. It must begin at 
 the bottom. It must be contemporaneous with 
 legal apprenticeship. 
 
 A person who wishes to study law should 
 possess a real, elementary education, and, in 
 addition to the other necessary qualifications, 
 should know the Latin language and its general 
 literature. He should, also, be able to pass an 
 examination, in one other modern language, pref- 
 erably Spanish, from our expected future re- 
 lations with that race. No certificates from 
 colleges, or schools, should be accepted, as proof 
 of these requirements, but each candidate should 
 pass through the ordeal, of an actual examination, 
 under the direction of properly appointed, and 
 qualified, examiners. 
 
 II. Deficiencies in education and instruc- 
 tion of law students. 
 
 (a) In length of time of legal apprentice- 
 ship. 
 
166 THE AMERICAN LAWYER. 
 
 It should be not less than seven years, of 
 which three, should be actually spent, as a 
 clerk, in a law office. 
 
 (b) Absolute want of instruction, of legal 
 apprentices, in the functions and duties of 
 lawyers, and professional ethics. 
 
 (c) No, or insufficient, instruction in the 
 primary principles and elements of juris- 
 prudence — foundation, nature, object, and 
 spirit of laws. 1 
 
 (d) No instruction in the functions and 
 duties of legislators. 
 
 (e) No, or inadequate, instruction in Ameri- 
 can historical, and Federal and State, consti- 
 tutional, law. 
 
 (/) No, or insufficient, instruction in crimi- 
 nal jurisprudence, in its origin and purpose, 
 and in the pleadings, evidence, and practice, 
 connected therewith. 
 
 It is fashionable to taboo this branch of 
 jurisprudence. It is avoided and shunned 
 as rather disreputable. To say of one "he 
 is a purely criminal lawyer" involves, it is 
 assumed, a certain obloquy; that he does 
 not occupy a first rank in the profession. 
 Notwithstanding this ignorant criticism, it 
 may be confidently asserted, that the study 
 and practice of criminal law, awaken and ex- 
 ercise, the best mental and moral qualities of 
 lawyer, advocate, and citizen. In fine, it is 
 
 i Columbia College undertakes the time is too short, and the in- 
 to fulfill this requirement in one struction and attention neces- 
 of her courses, and has an able sarily superficial, 
 man to perform the function; but 
 
CAUSES AND REMEDIES. 167 
 
 impossible to conceive of a great civil lawyer, 
 who has not considerable knowledge of crimi- 
 nal law. 
 
 (g) No, or insufficient, clinical training, 
 in the office of a practicing lawyer. 
 
 III. Deficient and non-systematic educa- 
 tion in all of the branches of law. 
 
 Case law is taught, instead of elementary 
 law. Blackstone, the greatest institutional 
 writer, is practically abolished, from Law 
 Academies and Colleges. There is not a 
 word, in his commentaries, which should be 
 dropped from a legal course. 
 
 Requirements of law examining boards 
 are superficial. 
 
 In addition to prolonging the apprentice- 
 ship to seven years I advocate the following : 1 
 
 1. The abolition of "case" law as a fun- 
 damental means of instruction, and the intro- 
 duction of the study of law from text-books, 
 substantially as follows : 
 
 2. The study of institutional law, by a 
 complete mastery of Blackstone's, and Kent's 
 Commentaries, and Walker's American Law. 
 
 3. Pleadings, Evidence, and Practice — the 
 
 1 Except in a few instances I them are too hastily put together, 
 
 do not mention the text-books but a judicious selection can be 
 
 which should be adopted. There made by competent lawyers, 
 are good and bad ones. Most of 
 
168 THE AMERICAN LAWYER. 
 
 latter embracing Federal and State practice, and 
 Equity and Common-Law practice. 
 
 4. Natural and civil law, and the princi- 
 ples, foundation, and spirit of law, with such 
 books as the following : < 
 
 Paley's "Moral and Political Philosophy." 
 Burlamaqui's " Natural Law." 
 Montesquieu's " Spirit of Laws." 
 Puffendorf. 
 
 Macintosh's " Discourses on the Study of the 
 Law of Nature and Nations." 
 
 Judicious Selections from Savigny, Pothier, 
 Domat, Grotius, and d'Aguesseau. 
 
 5. The law of personal property. 
 
 6. The law of real property. 
 
 7. The law of contracts. 
 
 8. The law of corporations. 
 
 9. The law of principal and agent. 
 
 10. The domestic relations. 
 
 11. Equity Jurisprudence. 
 
 12. Constitutional Law, including Federal 
 and State, together with the principles of legisla- 
 tion and the duties of legislators. 
 
 13. Criminal Jurisprudence. 
 
 14. The law of Executors and Adminis- 
 trators. 
 
 15. A course of lectures, study, or education, 
 upon the history and chronology of the law reports. 
 The law student should know the history of the re- 
 
CAUSES AND REMEDIES. 169 
 
 ports, and where, and under what circumstances, 
 they were published or promulgated. 1 
 16. The study of selected cases. 
 This order of legal study is of course arbi- 
 trary. The study of the law, under proper tuition, 
 can be made interesting and fresh, and, instead 
 of being a burden, and an effort, it can be 
 converted into a delightful occupation. It de- 
 pends upon the tuition, and when and how it is 
 commenced and pursued. But, primarily, the 
 study should be begun in a natural way, commenc- 
 ing with the organization of society, and opening 
 up to the student, the logical and historical 
 development of the law. 
 
 SECOND : the existing state of the law and 
 
 LAWYERS ARISES, PRINCIPALLY, FROM CODIFICA- 
 TION, SO CALLED, BY WHICH THE PRACTICE OF THE 
 LAW IS CONCENTRATED UPON FORM, RATHER THAN 
 SUBSTANCE, INVITING AND CREATING WHOLESALE 
 TRICKERY AND SHARP PRACTICES, ALL PRODUC- 
 ING THREE OF THE WORST ENEMIES OF JUSTICE 
 AND JURISPRUDENCE, I. E., (1) DELAYS, (2) COST- 
 LINESS, AND (3) UNCERTAINTY; TO SAY NOTHING 
 OF ITS BALEFUL INFLUENCE UPON THE LAWYERS. 
 
 1 1 have not embraced all of the ted, are necessarily encountered 
 
 topics involved in a complete by the student in his general 
 
 legal education, such as Admi- reading. They can be specially 
 
 ralty and Patent Law; but these, pursued if desired, 
 and all of the other subjects omit- 
 
170 THE AMERICAN LAWYER. 
 
 The difference between a common-law lawyer, 
 and the practitioner under the Code, is the differ- 
 ence between a surgeon and a butcher. 
 
 Behold the title to the New York Code of 
 Civil Procedure! 
 
 "An Act to simplify and abridge the 
 practice, pleadings, and proceedings of the 
 courts of this state!" 
 
 How the irony of legal history frowns on this 
 assumptious sentence. The Code has earned its 
 own title ; or, perhaps, it would be more truthful 
 to say, it has written its own epitaph. It should 
 be called: 
 
 "An Act to complicate, multiply, befog, and 
 render uncertain the practice, pleadings, and 
 proceedings of the courts of this State." 
 
 The effect of the introduction into American 
 Jurisprudence of ignorant, illogical, and imper- 
 fect codification, has been to deprive the practice 
 of law, of all its science, and to change wholly 
 its intellectual grade, or standard. 
 
 Among other vain pretensions, the so-called 
 Reformers indulged in the futile, and ignorant, 
 attempt to amalgamate law and equity. 1 
 
 1 Sec. 3339: " There is only one suits in equity, and the forms of 
 form of civil action. The distinc- those actions and suits, have been 
 tion between actions at law and abolished." 
 
CAUSES AND REMEDIES. 171 
 
 At the same time, they carefully preserved, the 
 Courts of Equity, in what were known as Special 
 Terms — where trials were had without a jury. 
 Since the adoption of the Code in 1848, thousands 
 of litigants have received purely equitable relief. 
 Jurisprudence is impracticable, without the sep- 
 arate existence of these two systems. And, for- 
 sooth, the distinction between law and equity is 
 abolished in New York! 
 
 The effect of modern American codification, 
 has been to divert the student, from a study of 
 the elements and principles of jurisprudence, 
 (as witness the banishment of Blackstone as a 
 whole) upon which the maxims and rules of the 
 law are founded, and to convert him into a dis- 
 puter of the meaning of statutory language. In- 
 stead of seeking the truth, the Courts and the Bar, 
 are engaged in the pursuit of technicality and form. 
 I cannot undertake a full criticism of codifica- 
 tion. It would require books as large as the three 
 immense volumes of the New York Annotated 
 Code of Civil Procedure — and these contain only 
 4704 pages of closely printed matter including the 
 index! I only indulge in this single, general, 
 sweeping, statement, that one cannot cast his eye 
 upon any part of the Code, which is not receiving 
 a daily bath, of new interpretation from the courts ; 
 or without stumbling upon some gross blunder! 
 
 The effort to make the law, and its forms and 
 
172 THE AMERICAN LAWYER. 
 
 practice, an open book to all, has been to lower 
 and cheapen the profession of the lawyer — to 
 throw the law into inextricable confusion and 
 doubt — to entail vast expense upon suitors — to 
 create law libraries filled with worthless books, 
 containing records of disputes upon questions of 
 form and practice — and to substitute these latter 
 and minor considerations for those of substance, 
 justice, and right; and principally, to cause delay 
 and expense in the administration of the law. 
 We have now every one of the evils, complained 
 of, in the old system, without the certainty which 
 had been evolved from it, or its harmonious re- 
 lations, to the whole of the law, as a science. 
 
 The fallacy, of the violent criticism of the 
 forms, of common-law practice and pleading, 
 upon which public sentiment was created, to 
 influence what was, ignorantly, called "law re- 
 form," has now been thoroughly exposed and ex- 
 ploded. 
 
 We have had in New York nearly sixty years 
 of experience (since 1848) of codification, and 
 the experiment has been a lamentable failure. 
 In money, it has cost millions of dollars to suitors; 
 in practice, it has ruined at least two generations 
 of lawyers — and it will probably ruin two more. 
 
 Never, was the system, and technique, of the 
 common law, more completely and handsomely, 
 vindicated. Invoke the thousands of silent wit- 
 
CAUSES AND REMEDIES. 173 
 
 nesses, collected on the shelves of law libraries, 
 in New York, in the shape of legal precedents, 
 which testify that most of the cases, enshrined 
 in the law reports, arose out of mere questions 
 of form and practice. 
 
 The forms of the common law, and its practice, 
 may have been the subject of some just criticism, 
 calling for amendment; but, to extirpate a whole 
 system to correct a few evils inseparable in some 
 shape from any system; to cut down and cast 
 out as worthless a whole body of judicial proce- 
 dure, never arbitrarily imposed, but the well- 
 considered growth of ages of experience, when a 
 few simple amendments would have remedied 
 all redundancies and supplied all deficiencies; 
 to dig up whole, when the pruning knife was all 
 that was needed — was, to my mind, simply the 
 work of barbarians. It came from the impa- 
 tience of those who, not understanding what 
 they destroyed, found it more easy to destroy 
 than to understand ; or who, itching for the title 
 of law reformers, struck a blow at the most promi- 
 nent feature of the law; or who had an ambition 
 to reform, without the time, or the ability, to 
 accomplish it. 
 
 To say nothing of the extra costs and expenses; 
 the manifold delays and intricacies of legal pro- 
 cedure; the attempt to simplify has been to be- 
 muddle, confound, and destroy — to produce a 
 
174 THE AMERICAN LAWYER. 
 
 race of pigmy lawyers, chattering and quarreling 
 over the meaning of words, in the Code. The 
 manufacture of artificial diamonds, rubies, and 
 emeralds has attained such a state of perfection, 
 that it is almost impossible to detect their spuri- 
 ous quality, without the magnifying glass, in the 
 hands of an expert. The modern Codes produce 
 artificial or paste lawyers. They shine, sparkle, 
 and blaze at a distance, but when their qualities 
 are put in a proper crucible, they are found not to 
 be of the real quality, or first water. They are 
 put together quickly, and made to shine by false 
 and artificial lights and colors. I am of course 
 speaking as a whole. 
 
 The multiplication of precedents, has invited 
 and encourages technical, narrow, illogical, so- 
 phistical, and unjust distinctions and arguments, 
 in efforts to defeat real justice. 
 
 Codification has prevented the full and perfect 
 development of the intellectual, moral, and foren- 
 sic qualities of lawyers. 
 
 Legal digests, analyses, and encyclopedias of 
 law, practice, and forms, have diverted the legal 
 student, from the study of the elements and prin- 
 ciples of jurisprudence, to a search after cases. 
 He has become a mere "case lawyer;" he stops 
 at mere form. 
 
 Out of the confusion, doubt, and chaos of 
 codification, there will gradually be formed, a 
 
CAUSES AND REMEDIES. 175 
 
 logical and compact system, of legal forms, prac- 
 tice, and procedure, which will closely resemble 
 that of the common law, and after years of ex- 
 periment we will land exactly at the spot from 
 which we started; that is, if the legal mind, 
 like a way-worn traveler, be not lost in the 
 jungles, and come to some otherwise more evil 
 fate. Facilis descensus Averni. 
 
 Already there have been, practically, three codi- 
 fications since 1848. And the codifying fiend, still 
 perseveres, in his devastating work, which, like the 
 ravages of a prairie fire, spreads over the whole 
 system of jurisprudence, leaving everything black 
 and ruined, in its course. 
 
 THIRD: THE EXCESSIVE NUMBER OF LAW- 
 YERS, IS DETRIMENTAL, BOTH TO THE COMMUNITY 
 AND THE MORALE, OF THE PROFESSION. 
 
 It creates, encourages, and continues illegal, un- 
 founded, and fraudulent practices, demands, and 
 litigation, because necessarily many of the law- 
 yers depend, not upon professional knowledge and 
 accomplishments, but upon sharpness and cun- 
 ning. In the effort to sustain themselves, much 
 unnecessary and unfounded litigation is inaugu- 
 rated, and many disgraceful practices engendered. 
 For example, how many lawyers' offices does an 
 individual need to visit, to procure an attorney to 
 make a defense to a suit, where there exists no 
 
176 THE AMERICAN LAWYER. 
 
 meritorious or substantial answer? Men and 
 women spend days in searching for a peculiar 
 kind of precious stone, or a brooch, or a present. 
 But when an individual wishes a lawyer to in- 
 terpose a dishonest defense, he will probably not 
 be fatigued in the effort to find him. He will, 
 possibly, not go beyond the first office. And he 
 will encounter the same experience, if he wishes 
 to institute an unfounded, or unjustifiable, action. 
 The lawyers will weave from a mere thread of 
 truth, a whole cause of action, or an entire de- 
 fense. Cunning and trickery often displace real 
 knowledge and ethics. But do not place all of the 
 blame upon the shoulders of the lawyers. If one 
 sensitively honest lawyer be found, there are doz- 
 ens of others who will act. Besides, how much of 
 the obloquy should fall upon the clients? 
 
 An excessive number of, badly trained, lawyers 
 makes the profession cheap and common— ple- 
 beian. 
 
 It would follow, naturally, that the introduc- 
 tion of a system, such as I have briefly outlined 
 here, would immediately operate to curtail the 
 number of lawyers. 
 
 FOURTH: the general lack of manners, 
 
 AND THE ALMOST TOTAL LOSS OF AN espHt de 
 COrpS, AMONG THE MEMBERS OF THE BAR. 
 
 The lack of respect for the Judges, as by not 
 
CAUSES AND REMEDIES. 177 
 
 habitually saluting them with uplifted hat; the 
 want of respect for the age and experience of 
 brother lawyers; discourtesies among lawyers, 
 making the practice of the law, like a fight between 
 ruffians, for the possession of plunder. Lack of 
 manners, produces a contempt for each other, 
 and, for the profession, which we follow. As 
 Burke says, "The degree of estimation in which 
 any profession is held becomes the standard of 
 the estimation in which the, professors hold them- 
 selves." A good-sized book could be written 
 upon this aspect of the subject. 
 
 FIFTH: THE ADVENT OF WEALTH, AS THE 
 SOLE CRITERION, OF ARISTOCRATIC, OR SOCIAL, 
 POSITION AND DISTINCTION, TO THE EXCLUSION 
 OF INTELLECTUALITY, REFINEMENT, AND LITERARY, 
 CULTURE. 
 
 It has enabled its possessors to buy, or secure, 
 political and social positions, which should be 
 attained only by real merit, refinement and 
 learning. 
 
 This has, undoubtedly, affected the prestige of 
 the legal profession, and deprived its members, of 
 true ambition, and moral influence. 
 
 When such a criterion is adopted, it is evident 
 that the ambition to excel by right methods must 
 be crushed; of what use, then, is the formation of 
 character, and of the long and studious vigil? 
 
178 THE AMERICAN LAWYER. 
 
 The fact that the profession of politics can se- 
 cure judicial positions, and professional honors 
 and emoluments, tends in the same direction, 
 and adds a positively corrupting element in the 
 lawyer's ambition. If fame and power, can be 
 obtained through politics, (very soon it will be 
 through politics alone), then, such influence as 
 the profession gives, will be enlisted on the side 
 of politics, and politics, not law, become the aim 
 and end of the lawyer's aspirations. 
 
 SIXTH: THE RADICAL CHANGES WHICH HAVE 
 OCCURRED IN ALL PROFESSIONS AND BUSINESS 
 AND COMMERCIAL OCCUPATIONS AND RELATIONS, 
 RESULTING, INTER ALIA, IN THE FOLLOWING: 
 
 Changing law into a business. 
 
 The institution of incorporated companies and 
 agencies to transact conveyancing and legal busi- 
 ness with cheapness and guaranties. 
 
 The effect of which has been to deprive the law- 
 yers of a large part of their old business, and to 
 drive them into new, and perhaps more important, 
 fields of practice, where hard common sense, good 
 business judgment and acumen, supplant pro- 
 found, technical, legal knowledge and ability; 
 where they become associates in business adven- 
 tures, instead of pure counselors, and where their 
 compensation, is based upon the ultimate outcome, 
 and profits, of the business. 
 
CAUSES AND REMEDIES. 179 
 
 Rendering the study and practice of forensic 
 eloquence, unnecessary and superfluous — nay al- 
 most ridiculous. 
 
 SEVENTH: the increase of litigation 
 
 HAS CAUSED (PERHAPS, IN JUSTICE TO THE BENCH, 
 I SHOULD SAY " FORCED"), THE ADOPTION BY THE 
 COURTS, OF RULES, WHICH FURTHER LIMIT THE 
 TRUE SCOPE OF THE LAWYER'S FUNCTIONS. 
 
 These rules, make the occupation of a lawyer, 
 one of pure commercial business. 
 
 They do not so much produce brevity of speech, 
 as they destroy the taste, and render useless the 
 cultivation, of ornate, classic, and finished legal 
 arguments, and all those habits of mind which 
 connect the profession with literature and gen- 
 eral knowledge, with all of their elevating and 
 refining influences, tending more and more to 
 degrade the law into a mechanical occupation. 
 
 EIGHTH: the existence of an undefined 
 
 FEELING AND SENTIMENT THAT JUDGES IN CER- 
 TAIN LOCALITIES ARE, TO A GREATER OR LESS DE- 
 GREE, SUSCEPTIBLE TO POLITICAL, OR OTHER SOCIAL, 
 FRIENDLY, OR EVEN CORRUPT, INFLUENCES IN THE 
 PERFORMANCE OF THEIR DUTIES. 
 
 Whatever tends, otherwise, to lower the pro- 
 fessional standard, also tends to lay it open to 
 
180 THE AMERICAN LAWYER. 
 
 this imputation. How often we hear these re- 
 marks: "What Judge shall we bring this before?" 
 "Whom shall we select from the Bar to argue 
 this case before Judge X?" "We cannot argue 
 this case before Judge X because he is the inti- 
 mate associate of the plaintiff's or defendant's 
 counsel/' as the case may be? In most instances 
 this is a cruel and unfounded reflection upon the 
 judges. 
 
 But this sentiment undoubtedly exists in many 
 of our larger cities. Not necessarily based upon 
 the physical corruption of the judges (a rare vice), 
 — there is a moral corruption, equally as bad in its 
 results upon the judges, the bar and the com- 
 munity. 
 
 It makes it appear to the litigants that it is 
 necessary to select not an advocate of a higher 
 order of intellectual endowments, or legal learning, 
 but one exercising a supposed moral, or political 
 influence, upon the mind of the judge — one to 
 whom, in cases of intricacy or doubt, or where 
 the question is "close" — when strict, independent, 
 legal judgment is of the highest importance — 
 the judge can throw his discretion, or opinion, in 
 favor of his friends, and without regard to the 
 harmony of the judicial system. 
 
 This is the worst species of corruption — be- 
 cause the judge, free from actual bribery, con- 
 cealing his judicial discretion in a mist of meta- 
 
CAUSES AND REMEDIES. 181 
 
 physical doubt and false reasoning, awards the 
 judgment, contrary to his inner conscience, and 
 to the real equities of the case. 
 
 In litigation involving large and important 
 results, the lawyers who breathe in such an 
 atmosphere, sacrifice their own convictions, stifle 
 their own ability, and resort to means which 
 are more certain of success. 
 
 The natural demoralization, which such con- 
 ditions have upon the bar, can be, readily, appre- 
 ciated — and the clients and courts do not escape 
 the contagion. 
 
 NINTH: THE ENORMOUS EXTENSION OP THE 
 
 PRACTICE OF CONTINGENT COMPENSATION, HAS 
 
 UNDOUBTEDLY AFFECTED THE CONDITION OF THE 
 
 BAR, TO SOME EXTENT. HOW GREAT, IT IS NOT 
 POSSIBLE, EXACTLY, TO SAY. 
 
 I refrain from expressing any final opinion 
 upon this subject. It is one of profound impor- 
 tance, as bearing on the morale of the profession, 
 and on the administration of the law. It is also 
 one of great delicacy. The power and wealth 
 of our corporations are so tremendous, that in 
 many instances, without some arrangement be- 
 tween lawyer and client, of a contingent char- 
 acter, it is sure great hardship and wrong would 
 occur, without a possibility of redress. The power 
 
182 THE AMERICAN LAWYER. 
 
 and concentrated methods, of these bodies, are 
 almost overwhelming. Without contingent ar- 
 rangements, with lawyers, their power would be- 
 come oppressive and tyrannical. But the point 
 is whether the practice of contingent fees has not 
 outgrown all just proportions, and is not the direct 
 cause of much unfounded litigation and blackmail. 
 
 The ethical objection, to contingent fees, con- 
 sists in making the lawyer a party to the 
 suit, and therefore, necessarily, a formulator of 
 litigation, often of a doubtful character. It is, 
 besides, a kind of fraud upon the court, and a 
 perversion and confusion of the mind of the ad- 
 vocate. When the interests of justice, can be 
 subserved, on behalf of a poor, or helpless, client, 
 and when the fee itself in no wise takes advan- 
 tage of his necessities, such practice generally 
 can be reconciled, with the interests of the com- 
 munity, and with professional honor. 
 
 The uncertainty, of the results of an appeal to 
 the law, has increased, with the increase of liti- 
 gation, and this adds another powerful motive 
 to contingent arrangements. 
 
 In those instances, where pure commercial busi- 
 ness results are sought for, without litigation, the 
 question of fees is changed into commissions, or 
 divisions of profits, and the lawyer being trans- 
 ferred to a mere agent, the ordinary difficulties 
 which surround the subject, do not prevail. 
 
CAUSES AND REMEDIES. 183 
 
 TENTH : the non-existence of a division of 
 the bar into two classes: 1st, attorneys or 
 solicitors; and, 2d, counselors or barristers. 
 
 No matter how this question might have been 
 decided many years ago, the vast changes in, 
 and increase of, business, require the profession 
 to be divided into two classes. I have already 
 alluded to this subject. 1 I think I have said 
 that this division would, alone, stop many cause- 
 less suits which are now begun. 
 
 ELEVENTH: the lawyers should wear a 
 
 GOWN OR APPROPRIATE BADGE IN COURT. 
 
 The fact that lawyers do not wear a distinctive 
 gown, or badge, in Court, distinguishing them from 
 suitors and spectators, and making their calling a 
 marked one, is another element, which tends to 
 decrease the respect of the community, for the 
 profession. In the administration of justice, the 
 factitious influences are very great, in awakening 
 and holding the respect of the community. The 
 single judge sitting in his judicial robes creates 
 a certain feeling of awe, and no matter how pusil- 
 lanimous in figure or mind, he effectually controls 
 the vast audience before him. 
 
 " So may the outward shows be least themselves 
 The world is yet deceived with ornament." 
 
 'Much has been written upon this but I have felt it unnecessary to 
 subject, pro and con, in England, open it fully here. See ante, p. 81. 
 
184 THE AMERICAN LAWYER. 
 
 Here I shall end. I hope it is unnecessary to 
 say that I love the profession, and have at heart 
 the best interests of its members. 
 
 Apart from his individual employment, where 
 his mind is naturally affected by the bias of an 
 advocate, the lawyer is a character which the 
 community should be interested in maintaining 
 and not depreciating. His mind and training 
 incline him to free and pure thought and inde- 
 pendent judgment. That judgment is constantly 
 called into exercise in every description of do- 
 mestic and personal concern. Trained in the 
 knowledge of human nature, when he enters the 
 field of jurisprudence and politics, his acts and 
 opinions should be of the greatest value to the 
 people. I would build up a race of pure lawyers, 
 as far removed from commercialism as possible. 
 The country needs such a class more than ever. 
 The distinction between a federation of States 
 and a Nationality, it seems to me, is growing 
 dim, and necessarily the people are less interested 
 in public questions. The Bar, in its pristine 
 vigor, is the saving ingredient in the composition 
 of a democratic system of government, permeat- 
 ing and vitalizing all its branches, and securing 
 liberty, while it sometimes restrains it, in the 
 interest of social and political happiness. 
 
 The freedom of some of my remarks will doubt- 
 less create antagonism in some minds. It will 
 
CAUSES AND REMEDIES. 185 
 
 probably be the strongest where the lawyer him- 
 self is the purest, and has had the least oppor- 
 tunity of actual contact with certain kinds of 
 practice, on a large scale. He will think that he 
 advocates the interest of the profession by deny- 
 ing the existence of its evils. With such I have 
 an entire sympathy. Long and many-sided ex- 
 perience and observation, however, convince me 
 of the truth of what I have written. Otherwise 
 I should not have written. The welfare of our 
 noble calling, is as dear to me, as the life of which 
 it has formed so large a part. I can pity the 
 temptations with which it abounds even while 
 I urge its reform. That reform is needed, in all 
 those respects, and for all those great purposes, 
 to which I have called attention, I must freely 
 maintain, and in the venerable language familiar 
 to us all, "Of this I put myself upon the coun- 
 try."