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 http://www.archive.org/details/cu31924018780514 
 
LEGAL ETHICS. 
 
 LECTURES 
 
 DELIVERED BEFORE THE STUDENTS 
 
 OF 
 
 LAW DEPARTMENT OF UNION UNIVERSITY 
 
 BY 
 
 Gen. Thomas H. Hubbard 
 
 AND 
 
 Simeon E. Baldwin, LL. D. 
 
 1903 
 
INSTITUTION 
 
 . . .OF. . . 
 
 CHAIR OF LEGAL ETHICS. 
 
 ALBANY LAW SCHOOL. 
 
 On the evening of November 12, 1903, Union University, rep- 
 represented by its Faculty, a large body of the Alumni, and the 
 students of its five departments, honored Gen. Thomas H. Hub- 
 bard, the founder of the Chair of Legal Ethics in the Albany 
 Law School, by attendance at the formal institution of that chair 
 and opening lecture by its founder. 
 
 For the first time in the history of Union University the 
 Faculty and students of the departments were brought together 
 at Odd Fellows Hall in Albany where the exercises were held. 
 The law students occupied the seats directly facing the stage, 
 while on their right were the members of the academic depart- 
 ment, and on their left the medical students and students in the 
 School of Pharmacy. The College Glee Club sang college songs 
 which were joined in by students of all the departments. 
 
 Dr. A. V. V. Raymond, Chancellor of the University, pre- 
 sided. On the platform were the Deans of the dififerent depart- 
 ments, J. Newton Fiero of the Law School, Dr. Vander Veer of 
 the Medical College, Prof. Willis G. Tucker of the College of 
 Pharmacy, and Dean Ripton of the Academic Department, to- 
 gether with the members of the Faculty of the University. Chief 
 Judge Parker and Judge Vann, graduates of the school, with 
 other judg'es of the Court of Appeals, several justices of the Su- 
 preme Court, and members of the bar were in attendance. 
 
 Bishop Burke opened the services with prayer after which 
 Chancellor Raymond spoke as follows : 
 
Never before in the history of this University have all the 
 departments been brought together in visible union, as they are 
 to-night. This alone makes it an occasion of special interest and 
 a happy omen, let us believe, of the closer relations in the future 
 which we all desire, and which are so necessary for the develop- 
 ment of a true university feeling and life. I need not dwell upon 
 the importance of developing this university spirit. This is an 
 age of combinations, commercial, political and religious organi- 
 zations having much in common unite their energies in some form 
 of practical co-operation to their mutual advantage, and, within 
 certain necessary limitations, to the general good. Educational 
 interests proverbially conservative have been among the last to 
 yield to this tendency of the times. This accounts in part for the 
 fact that while these various schools have existed for many years 
 under a form of university control, no serious attempt has been 
 made until recently to give vitality to the organization. In this 
 country there are two distinct phases of the university idea. One 
 puts emphasis upon graduate courses of study, demanding orig- 
 inal research and investigation, leading to the degree of Doctor 
 of Philosophy. The other is expressed in an association of 
 schools, more or less independent in their work, and leading to 
 various degrees. Our right to the University title is found alto- 
 gether in the association of different institutions. We attempt 
 no distinctively graduate work, but include in our University 
 corporation the college at Schenectady and the Law School, Medi- 
 cal School, School of Pharmacy, and Dudley Observatory in this 
 city. Each of these institutions has its own board of trustees, 
 and the board of governors of the University is composed of 
 representatives of these several boards. By the act of incorpo- 
 ration, the President of Union College is Chancellor of the Uni- 
 versity, and his name must be signed to all the diplomas. Thus 
 far the functions of the board of governors have been largely 
 nominal, and as a result the University has been more a name 
 than a reality. We have, however, a complete theoretical Uni- 
 versity organization, and our aim now is to give it practical effi- 
 ciency and value. Many influences have contributed to retard 
 
the realization of the original purpose of the founders of the 
 University, influences which happily are not as effective as 
 formerly. I have already mentioned the conservative spirit of 
 educational institutions. This, however, is rapidly yielding to the 
 spirit of the times, and we now see that each of the institutions 
 represented here to-night will be stronger by co-operating with 
 the others, by merging itself into a larger whole. Another oppos- 
 ing influence has been the difference in locality. If all the depart- 
 ments were in one city, there can be little question that the Univer- 
 sity sentiment would have grown much more rapidly, but with 
 seventeen miles intervening between the college and the profes- 
 sional schools, the difficulty of developing a sense of oneness, of 
 solidarity, has been greatly increased. This antagonistic influence 
 is, however, losing much of its power by virtue of increased means 
 of communication. Schenectady and Albany are each year draw- 
 ing nearer to each other, and it will not be long before we cease 
 to think of the intervening miles as a serious obstacle to prac- 
 tical co-operation. The little difficulty experienced in coming 
 together to-night is a perfect illustration of the changed condi- 
 tions. At 7 o'clock these students on my left were all on College 
 Hill in Schenectady; at 8 o'clock they marched into this hall. 
 Electricity has made Albany a part of Schenectady, or Schenec- 
 tady a part of Albany, as you please. Whichever way you put 
 it, it has made a real University, with departments in both cities 
 possible, and by so doing has practically removed one cause of 
 ancient rivalry, for the location of Union College has long been 
 a subject of dispute. It may be interesting and not inappropriate 
 on this occasion to recite a chapter from the early history of the 
 college. So far as I have been able to discover. Union was the 
 first college founded in response to a popular demand. Each 
 of the older colleges was established either by the gift of some 
 individual or by the deliberate act of some denominational organ- 
 ization; but as early as 1779, during the War of the Revolution, 
 850 citizens of Albany, Tryon and Charlotte counties, compris- 
 ing at that time all of the northern section of the State, peti- 
 tioned the Legislature sitting at Kingston for a college charter. 
 
This petition was referred to a committee which reported favor- 
 ably, recommending that the petitioners be allowed to bring in 
 a bill at the next session. This, however, was not done, for the 
 reason doubtless that the emergencies of war diverted attention 
 from the project. Three years later, however, the petition was 
 renewed, signed by 1,200 citizens of the same counties. No de- 
 cisive action was taken, and it was not until 1795, after repeated 
 attempts, that a charter was granted. When, in the fall of 1794, 
 it seemed probable that the enterprise would succeed, various 
 localities came forward with claims for the site of the new insti- 
 tution, among them Kingston, Hudson, Poughkeepsie, Lansing- 
 burg, Waterford, and even Stillwater, but the two most promi- 
 nent claimants were Schenectady and Albany. Schenectady had 
 been the first in the field, and as early as 1785 had established an 
 academy, with the design of obtaining for it the college charter. 
 The city offered as a foundation for the college 5,000 acres of 
 land. Individuals added 700 acres and £1,000 in money. Albany 
 then came forward with her offer. The Common Council voted 
 to convey a part of the public square for the site of a college, 
 and citizens subscribed $50,000. Thus the rivalry began, but it 
 was not bitter enough to imperil the general cause. It is an 
 interesting fact that the working committee, the committee that 
 finally secured the charter, was accustomed to meet in Albany in 
 the house of James McGourk, and was composed largely of 
 Albanians, with Stephen Van Rensselaer as chairman. Such 
 Albany names as Lansing, Gansevoort and Schuyler were promi- 
 nent in the list of members, and it is certainly suggestive of broad- 
 minded citizenship that the college was located in Schenectady 
 largely through the influence of Gen. Philip Schuyler. 
 
 This generous spirit has at lastTseen rewarded, for of the five 
 departments of the University into which the college has grown, 
 four are located in Albany, and for our first real University cele- 
 bration the students and faculty of the college in Schenectady 
 have been transported to this city. As the University sentiment 
 grows, Albany will at least share the gain with Schenectady, and 
 the city which makes the most generous provision for the work 
 
of the University will doubtless be the center of this larger life. 
 Be that as it may, we wish the faculty and students of each in- 
 stitution to feel that they are part of the larger whole, and that 
 they are all concerned in the progress and prosperity of every 
 other department. In the development of this mutual interest 
 and hearty co-operation we shall realize the purpose deliberately 
 agreed upon, and justify our name, " Union University." 
 
 Dean Fiero's Remarks. 
 
 At the conclusion of the Chancellor's address Dean Fiero spoke 
 as follows : 
 
 I desire to express to you. Chancellor Raymond, and through 
 you, to the Governors of the University, the Trustees, Faculties, 
 and students of the several Departments, the congratulations of 
 the Law Department upon this gathering of the governing bodies 
 and students of Union University — and upon its significance for 
 the future, in that we shall hereafter be more closely united, not 
 alone as Departments having a common aim, but common 
 interests. 
 
 It is m^ost fitting that this gathering should be had upon the 
 occasion of the introductory lecture on the subject of Legal 
 Ethics, since the matter of ethics in the law is closely related to 
 good morals, not alone in the profession but in all the walks of 
 life. The remark of Judge Sharswood, as to the young lawyer, 
 is equally applicable to any young man starting out upon his 
 life work. He said : " There are pitfalls and mantraps at every 
 step, and the mere youth, at the very outset of his career, needs 
 often the prudence and self-denial, as well as the moral courage, 
 which belong commonly to riper years. High moral principle 
 is his only safe guide ; the only torch to light his way amidst dark- 
 ness and obstruction." 
 
 Hence both the propriety and the usefulness of attendance by 
 the whole student body at the opening of this course, not only by 
 reason of the instruction to be derived, but in recognition of the 
 fact that whatever is in the interest of good principles and sound 
 morals, is in the interest of the students of Union University. 
 
The Chair of Legal Ethics was founded at a meeting of the 
 Alumni Association, followed by the action of the Board of 
 Trustees, at Commencement, in 1902, by one of our most success- 
 ful and distinguished graduates, a member of the Class of i860, 
 a graduate of Bowdoin, and a veteran of the Civil War, who has 
 not only endowed the Chair, but has evinced his interest in the 
 subject-matter, by consenting to be present with us to deliver the 
 opening lecture of the course on this occasion. 
 
 We have reason for congratulating ourselves upon the institu- 
 tion of this Chair, more especially by reason of the fact that we 
 have, with a two year course — while most other Law Schools 
 devote three years to the study of the law — had time and oppor- 
 tunity to devote attention mainly to the practical training of the 
 student absolutely necessary to fit him for carrying on his pro- 
 fession. This Chair, which we hope will be followed by the 
 founding of like professorships, will give us facilities for the 
 higher education of the student along the lines of the other and 
 older Universities. That education, which, to distinguish it from 
 the practical, we have sometimes denominated theoretical, but 
 which is, however, as useful and necessary to the student as the 
 study of procedure or of the substantive law. We shall, in fact, 
 be better equipped as to this branch of instruction than most of 
 the Law Schools connected with the great Universities of the 
 country — this subject forming no part of the curriculum in the 
 leading Law Schools in the East, aside from the Chair in our 
 sister Universities at Ithaca and Syracuse. 
 
 The plan adopted by the Board of Trustees, as to the lectures 
 upon Legal Ethics, has been to obtain the views of eminent 
 judges and lawyers in a single lecture, rather than the selection 
 of a stated lecturer on the topic, thus placing before the students 
 the views of the leading jurists of the country. 
 
 As has been already announced. Justice Brewer of the Class of 
 1858, and Judge Vann, of 1867, will deliver lectures during the 
 scholastic year, in addition to this introductory lecture by Gen. 
 Hubbard ; thus opening the course by lectures from three of our 
 most distinguished graduates. A lecture will also be given at 
 
an early date by Judge Simeon E. Baldwin, of the Supreme 
 Court of Connecticut. 
 
 We have in reserve for the course next year two of our 
 graduates, Presiding Justice William W. Goodrich, of the Second 
 Department, of the Class of 1853, and Chief Judge Parker, of 
 1872, together with Judge William E. Werner of the Court of 
 Appeals. 
 
 On making to you the formal announcement of the founding 
 of this professorship, I indulge the hope, sir, coupled with a 
 reasonable expectation, that the founding of this Chair by one 
 of the graduates of the Law Department will serve as an 
 incentive to like action on the part of graduates in other depart- 
 ments, which shall tend to strengthen the hands, and increase the 
 usefulness of Union University. 
 
 Chancellor Raymond then introduced Gen. Thomas H. Hub- 
 bard, the founder of the course and lecturer of the evening. Gen. 
 Hubbard prefaced his lecture with these remarks : 
 
 " It is with some hesitancy that I address the five departments 
 of this great University, still I have in mind that lawyers some- 
 time frequently listen with more or less appreciation to legal lec- 
 turers, and, of course, I know that doctors listen with patience 
 to the addresses made at clinics. Whatever you gentlemen may 
 think of the address, which I will endeavor to deliver this even- 
 ing, you can certainly encourage yourself with the prospects of 
 brilliant addresses in the future. Dean Fiero has given you the 
 names of eminent gentlemen, who are to address you during this 
 year and next. The title of this lecture, if I might select it, would 
 be, 'A need to amend and improve uniform oaths of office admin- 
 istered to attorneys on their admission to the bar.' In the records 
 of human achievements the work of lawyers deserves significant 
 recognition and commendation. They have maintained the right 
 of the weak against the encroachments of the strong, they have as- 
 sisted in the molding of the laws and have administered to the 
 
lO 
 
 courts in the enforcement of those laws, they have attained 
 careers of professional achievement, careers of statesmanship. 
 The purpose of this address or discussion is to present one phase 
 of the subject, to point out defects in the system rather than to 
 display its excellence." 
 
 LEGAL ETHICS. 
 
 A Plea for an Improved and Uniform Oath for 
 Attorneys, upon their Admission to Practice. 
 
 In the record of human achievement the work of lawyers 
 deserves grateful and signal commemoration. 
 
 They have maintained the rights of the weak against the 
 encroachments of the strong. They have molded the laws that 
 protect person and property and prevent the relapse from social 
 order to anarchy. They have ministered to the courts in the 
 enforcement of those laws. They have advanced from the routine 
 of professional employment to broader careers of statesmanship 
 and have guided the affairs of nations. 
 
 If the same records were written full and true, they would 
 tell of many who have failed to meet the high requirements 
 of their avocation. They would tell of craft and cunning, of 
 injustice toward adversaries, of pitiless assault upon character, 
 of the advocacy of the wrong, of the disregard of conscientious 
 convictions. 
 
 It is the province of legal ethics to instruct lawyers in those 
 rules that lead them, by the true course, to the loftiest heights 
 and that withhold them from the false course, that descends into 
 the depths. 
 
 These rules cover the relation of lawyers to their clients, to 
 the court, and to the public. They expound the principles that 
 should guide the conduct of all lawyers. They deal with the 
 
II 
 
 details of deportment that vary with the temperament and train- 
 ing of individuals. 
 
 The subject is broad. Its adequate treatment requires many 
 addresses and forms an important part of the education of every 
 student of the law. 
 
 The purpose of this discourse is to present one phase of the 
 subject ; to point out defects in the system, rather than to display 
 its excellence ; to advert to some rules that seem to have brought 
 discredit to the profession and to suggest some thoughts that may 
 aid in maintaining the higher standards. 
 
 In all times since lawyers have been known, they have been 
 the object of censure and of sarcasm in the speech and the litera- 
 ture of contemporaries. Wits have ridiculed them. Serious 
 writers have decried them. 
 
 Some part of these attacks may be disregarded as ground- 
 less abuse. Some part is a natural incident to the lawyer's 
 occupation. He is a combatant. The contests in which he 
 engages are a substitute for the wager of battle between parties 
 who once fought out their causes in the field with certain disturb- 
 ance of temper. 
 
 But the preponderance of censure over praise seems to show 
 that the censure has foundation in truth. And the utterances of 
 critics not unfavorable compel attention to the strictures. 
 
 Mr. Homer Greene, himself a lawyer, and a graduate of the 
 Albany Law School, expressed the opinion of many lawyers in 
 an article published more than twelve years ago in the North 
 American Review entitled, " Can Lawyers Be Honest ? " Mr. 
 Greene considers the question with judicial impartiality. He 
 gives lawyers credit for absolute faithfulness toward their clients. 
 He says that the lawyer enjoys a respect and faith on the part 
 of his clients for which the merchant, the physician, even the 
 preacher, may well envy him. And while he asserts that there is 
 a popular opinion in America that lawyers, as a class, are dishon- 
 est, he also says that the lawyer is believed to be dishonest only 
 when his dishonesty will advance the cause of his client and 
 retard or defeat that of his opponent in the law. Mr. Greene 
 illustrates his subject by instances where the lawyer is required 
 
12 
 
 by his client to set up the defense of infancy, or the Statute of 
 Limitations, to defeat a meritorious claim ; by instances where he 
 fights to suppress evidence that is prejudicial to his client, re- 
 gardless of its character; by instances where, in the interest of 
 his client, he withholds facts, known to himself, which, if dis- 
 closed, would put the case of his opponent in a better light. He 
 speaks of concealment, evasion, exaggeration, and strained logic, 
 as usual in the conduct of a cause, if they seem to the lawyer to 
 serve the interests of his client. 
 
 The same thought is expressed by Lord Macaulay in an im- 
 petuous sentence. 
 
 " We will not," he says, " at present inquire whether the doc- 
 trine which is held on this subject by English lawyers be or 
 be not agreeable to reason and morality ; 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 these 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 indignant exclamation, by gesture, by 
 play of features, by terrifying one honest witness, by perplexing 
 another, to cause a jury to think that statement false." 
 
 There can be no doubt that a large part of the public believes 
 the censure which is expressed in such utterances deserved. It 
 would benefit tBe public and the profession if the distrust that 
 attends this belief were removed. 
 
 What are its causes, and where is the remedy to be found? 
 
 The popular answer to the first question would be that law- 
 yers are distrusted because they accept the cases of bad men ; 
 because they advocate bad cases, or the wrong side of cases; 
 because they urge, with equal fervor, that side of the case which 
 they are hired and paid to urge and can be as earnest and as 
 eloquent on one side as on the other. 
 
 Such an answer, at first glance, seems to prove a lack of 
 sincerity on the part of the lawyer. To the superficial observer 
 it seems incongruous that a virtuous lawyer should support the 
 
13 
 
 cause of a vicious client; that an honest lawyer should try to 
 make a dishonest case prevail; that a lawyer who has principle 
 and convictions of his own should urge, for pay, either side of 
 any question. Yet the answer does not present the real difficulty, 
 nor does it suggest a remedy. 
 
 Bad and vicious men have rights of person and of property, 
 no less than exemplary men. If their vice leads them to trans- 
 gress the law, they are subject to legal punishment for specific 
 offenses. But there is no edict of confiscation applicable to bad 
 men. Among the vagaries of legislation no law has yet been 
 proposed that forbids bad men to go into court, or to employ law- 
 yers to appear in court for them. As no man is wholly good, it 
 follows that all men are more or less bad, and the exclusion of bad 
 men from the privilege of the courts would either exclude all 
 citizens or would call for an impracticable classification based upon 
 degrees of badness or of goodness. 
 
 There is no reason why a lawyer should not accept a retainer 
 from the worst or most disreputable of men, unless the retainer 
 puts the lawyer under control of the client, or compels him to 
 personate the client, or to execute the orders that the vice of the 
 client invents. If the retainer has this effect, then it makes the 
 lawyer, no matter how virtuous in person, as bad as the client 
 for the purposes of the client's suit. 
 
 To the criticism that lawyers advocate bad cases, or the 
 wrong side of cases, there is a similar reply. There is, in a correct 
 sense, no bad side of a case that has two sides. A case, properly 
 defined, is a dispute, or controversy, where each party honestly 
 believes that he has some right, or fraction of right, that the 
 opposing party refuses to regard. Where such a controversy has 
 passed the Hmits of negotiation, or adjustment, it may properly 
 be submitted for the decision of the court. The court may decide 
 that neither party shall have all he has claimed. It may decide 
 that one of the parties shall have nothing that he has claimed. 
 Yet it does not follow that the defeated party had a bad case, or 
 that he was on the wrong side. The honest, though mistaken, 
 assertion of a right, or any measure of right, denied by the 
 
14 
 
 opponent, is the proper basis of a case. It casts no reflection 
 upon the morals of a lawyer, though it may upon his ability, that 
 he has espoused and urged a case, or the side of a case, that 
 turns out to be bad in the sense that the court at last decides 
 against it. 
 
 If it happens, as no doubt it does, that lawyer and client 
 both see that the dispute, or controversy, involves no measure of 
 legal right or of justice, then no basis for a case in court exists. 
 It is merely a quarrel, that should not be obtruded upon the 
 court, or made an item of expense to the public that maintains the 
 courts. 
 
 Nor can the fact that the lawyer argues that side of the case 
 for which he is retained and paid account for the distrust with 
 which he is regarded. The only limitation in this respect is that 
 he shall not argue both sides of the same case. He may regret 
 that he has not been retained on the side that has the greater 
 measure of right. But it is reason for commendation and not for 
 censure, that he can argue honestly and earnestly in support of 
 the measure of right, however small, that he believes to be his 
 client's. 
 
 These considerations make it easier to state the real causes 
 for such distrust, or discredit, as attaches to the profession and 
 practice of the law. 
 
 Prominent among these causes are two : 
 
 First of these is the fact, recognized by the ethics of the pro- 
 fession, that clients, and not lawyers, decide what cases shall be 
 brought into court and control the substantial methods of their 
 conduct in court. 
 
 The second is that lawyers are permitted to personate their 
 clients ; to say what they think their clients would say and do 
 what they think their clients would do, in order to win their 
 cases. 
 
 In considering the first of these causes it must be admitted 
 that if the lawyer refuses to bring a suit at the direction of the 
 client, he cannot be compelled by legal process to bring it. The 
 process to which the client resorts is to take his business to 
 
15 
 
 another lawyer. And the ethics of the profession permit the 
 second lawyer, as they would have permitted the first, to com- 
 mence the suit against his own belief, or even knowledge, that 
 it has no foundation in law or justice, if the client insists that it 
 shall be brought. 
 
 The adjudications give the client substantial control of the 
 conduct of the litigation throughout its course. They clearly 
 settle that the client has the right to direct and control his law- 
 yer in respect to the clients' rights of property, or substantial 
 rights. They state that the lawyer shall have control in matters 
 of form and procedure and shall remain untrammeled in the due 
 and orderly conduct of the suit. 
 
 But where is the line of division between matters of substan- 
 tial right and matters of form and procedure, or due and orderly 
 conduct? Does the attorney's right to control in the "due and 
 orderly conduct of the suit " empower him to decide whether or 
 not to plead the Statute of Limitations, or of usury, or of infancy, 
 in any given case? If he knows that a defense under these stat- 
 utes will defeat a plaintiff's just claim, protect a rascal, and cheat 
 an honest creditor, has he the right as attorney to decide whether 
 such a defense shall or shall not be put in? If the client directs 
 him to put a witness on the stand, may the lawyer refuse because 
 he thinks, or knows, it will work injustice to do so? If the 
 client directs him to put before the court documents or decisions 
 that he knows will mislead, may he decline to follow the direc- 
 tions ? Must he follow them where he thinks or knows that what 
 the witness will say and what the documents will tend to prove 
 relate to substantial or property rights of the client, and may he 
 refuse to follow the directions only where he thinks, or knows, 
 that they relate to and will afJect matters of form or procedure? 
 Is the obedience or disobedience of the lawyer to be determined 
 by his own refinements of reasoning upon these probable effects ? 
 If the client instructs the lawyer to make certain statements or 
 arguments in his opening or closing address, must the lawyer 
 obey, provided the statements are pertinent and not wholly un- 
 supported by evidence and relate to substantial rights, or may he 
 refuse, if he thinks the statements ought not to be made? 
 
i6 
 
 The client's power to control in all doubtful instances is forti- 
 fied by the circumstance that he is employer and the lawyer 
 employee and by the doctrine, pushed sometimes to extreme 
 application, that the lawyer is trustee of his client's interests, 
 including his hopes, prejudices, and passions and that, to quote 
 tlie language of Lord Brougham, the lawyer " in the discharge 
 of his duty, knows but one person in the world, his client and no 
 other;" that "to save that client * * * he must not regard 
 the alarm, the sufiEering, the torment, the destruction he may 
 bring upon others," but " must go on, reckless of consequences, 
 even if his fate should unhappily be to involve his country in 
 confusion for his client." 
 
 It is true, no doubt, that lawyers in many instances dissuade 
 their clients from bringing suits, or interposing defenses that 
 ought not to be brought or interposed. It is true that efforts so 
 to dissuade form no small part of the lawyer's labor in consultation 
 with his client. But where the effort to dissuade is unavailing, it 
 is the decision of the client and not of the lawyer that finally 
 prevails. 
 
 The disputant in petty quarrels, whose threat at the end of a 
 wrangle is " I will have the law on you," finds his lawyer to do 
 his bidding. 
 
 The manager of great interests who plans suits for strategic 
 effect, with no expectation of ultimate success, finds his. 
 
 And so it turns out that the lawyer is compelled to conduct 
 litigations that his own conscience does not approve and to shelter 
 himself from its reproaches by adopting the hypothetical con- 
 science of the client. 
 
 It is not the purpose here to set lawyer and client in contrast, 
 or to eulogize the one and disparage the other. The lawyer 
 should be at least up to the average level of his clients, in respect 
 of cultivation, intellect, and morals. It is believed that such law- 
 yers as are contemplated in this address do stand upon at least 
 as high a plane. 
 
 But if, in these respects, lawyers and clients are peers, it yet 
 remains true that the controversy, with all its attendant exaspera- 
 
17 
 
 tions, is the client's controversy. Its asperities, its irritations, its 
 impulses, its interests, are not the lawyer's, save as he receives 
 them from the client. If he receives them in bulk, as a common 
 carrier receives all goods that are offered ; if, as the servant of the 
 client, he carries them all through the portals and into the temple 
 of justice; if he surrenders his own convictions to the wishes of 
 his client, then he gives to his cases the elements that retard 
 justice and bring the practice of the law into disrepute. He 
 obtrudes upon the court, the passion, the prejudice, the unreason 
 of the client. These should be left outside the court-house door. 
 The controversy that crosses the threshold should be a contro- 
 versy sifted by the intelligence and shaped by the conscience of 
 the lawyer. It should be the essence of honest difference in 
 the assertion of rights, not the turmoil of personal dispute. 
 
 There was mentioned as another cause of distrust toward 
 lawyers the rule, or usage, that permits the lawyer to personate 
 his client, and, in time of stress, to substitute for his own con- 
 science a hypothetical conscience assumed to belong to his 
 client. 
 
 It may not be correct to say that the ethics of the profession 
 prescribe such conduct, but it is no exaggeration to say that they 
 permit it. 
 
 A leading authority of our own time presents the prevailing 
 professional view of the subject in the following words : " The 
 party has a right to have his case decided upon the law and the 
 evidence and to have every view presented to the minds of the 
 judges which can legitimately bear upon the question. This is 
 the office which the advocate performs. He is not morally re- 
 sponsible for the act of the party in maintaining an unjust cause, 
 nor for error of the court, if they fall into error, in deciding it 
 in his favor. The court, or jury, ought certainly to hear and 
 weigh both sides, and the office of the counsel is to assist them 
 by doing that which the client in person, from want of learning, 
 experience, and address, is unable to do in a proper manner." 
 
 Another high authority, whose ethical standards and conduct 
 none of the profession excelled, expresses the accepted doctrine 
 
 2 
 
in these words : " Within a certain and definite limit it is true 
 that the lawyer must, in the interest of his client, whenever any 
 real case exists, sometimes forego his own opinion and surrender 
 his own judgment and plead against his own conviction and even 
 succeed against his own expectation." 
 
 The same authority quotes Bishop Warburton, as follows: 
 " Though some of those who call themselves casuists have held 
 it unlawful for an advocate to defend what he thinks an ill cause, 
 yet I apprehend it to be the natural right of every member of 
 society, whether accusing or accused, to speak freely and fully 
 for himself. And if, either by legal or natural incapacity, this 
 cannot be done in person, to have a proxy provided or allowed by 
 the State to do for him what he cannot or may not do for himself, 
 I apprehend that all States have done it and that every advocate 
 is such a proxy." 
 
 If the writers of the passages quoted were speaking for a 
 client, they would restrain their speech by the curb of their own 
 enlightened consciences. Others, whose consciences are less en- 
 lightened, need the restraint and help of a less elastic rule. 
 
 Agreeably to the ethics of the profession as now understood, 
 the lawyer may, and under penalty of losing his clients, must, 
 take into court such cases as the client directs. He may, and, at 
 the same risk, must, conduct them in court with all the temper, 
 prejudice, and personal rancor of the client. He must conduct 
 them in substance according to the wishes of the client. He may 
 personate the client ; speak as he thinks the client would speak, or 
 would Hke to have him speak, and, discarding his own convictions 
 and the restraints of his own conscience, shape his conduct by 
 what he assumes to be, yet which may not be, the conscience of 
 his cHent. And, under established decisions, he may say with 
 immunity, of his adversary and of adverse witnesses, false things 
 and even malicious things, if only they are pertinent to the cause 
 in issue. 
 
 What wonder that, under these conditions, causeless and con- 
 scienceless litigations go on? What wonder that the profession 
 has earned a reputation for disingenuousness ? The lawyer, bur- 
 
19 
 
 dened with a cause that is urged by the client's caprice or anger, 
 has found in neither the facts, nor the law, weapons to give him 
 the victory the client expects him to gain. Where shall he look 
 for other weapons? He may open his case, or his defense, by 
 stating with warmth and exaggeration, the things his client wishes 
 to have proved. He may impugn the motives of the adverse party. 
 He may harass the opponent's witnesses. He may lay traps for 
 them and lead them into apparent contradiction. He may lay 
 stress on immaterial matters and obscure the material. He may 
 exclude evidence known only to himself and his client, that favors 
 the other side. He may amuse the jury by bright or caustic 
 personalities in respect to matters not relevant to the cause. He 
 may use the weapon of eloquence in summing up and may give 
 it keener edge, by ingenious misapplication of facts, misconstruc- 
 tion of motive, sophistical criticism of testimony, undeserved de- 
 nunciation of parties. 
 
 Professional standards allow these things. There are not want- 
 ing, among distinguished practitioners, those who maintain that 
 the rough and tumble way of conducting a legal battle is the 
 best way. There are not wanting those who feel in such a 
 struggle the " gaudium certaminis." They hold that the court 
 and jury will best get at the truth by witnessing this intemperate 
 and confusing contest. 
 
 The court and jury do, in most instances, finally reach the 
 truth, or its approximate ; but they reach it at vast cost of time, 
 waste of public money, and expense of temper. 
 
 And, beyond this, there is engendered and nourished that dis- 
 trust of the lawyer's honesty and smcerity that wounds his sensi- 
 bilities and impairs his service. 
 
 Now, the object of every litigation should be to obtain for the 
 litigant exactly what is of right his, without adding anything to 
 what is his due, and without subtracting anything from it. This 
 object should be reached with the least possible expenditure of 
 labor and time by the courts ; the least practicable harm to repu- 
 tation or feelings of parties and witnesses and with no sacrifice of 
 the lawyer's self-respect. It would be the perfection of litigation 
 
20 
 
 to reach correct and just results without wasting time of the court, 
 increasing the public burden of expense, wronging adversaries, or 
 witnesses, or detracting from the honor of the bar. Lawyers who 
 approach this standard in the conduct of their litigations bring 
 credit to themselves and to the bar. It is a divergence from this 
 standard that brings discredit. 
 
 But how can the standard be maintained if lawyers must con- 
 duct such litigations as their clients ordain; may personate their 
 clients, bad or good ; may discard their own convictions and adopt 
 the assumed convictions of their clients, in the conduct of their 
 causes and may, with impunity, say malicious and false things 
 about their adversaries. 
 
 To disclose the causes that may bring reproach upon the bar, 
 suggests the remedy that should be adopted. 
 
 The lawyer should be emancipated from servitude to his client 
 in respect to the commencement and conduct of suits. 
 
 The lawyer should control in determining what cases may be 
 brought before the court ; what suits may be begun ; what de- 
 fenses may be interposed. His appearance in any cause should 
 be deemed a certificate, upon his honor as counsel, that it involves, 
 in his opinion, the honest assertion of legal and equitable rights 
 withheld by the opposing party. In all matters that involve con- 
 science, whether matters of form or substance, the lawyer's de- 
 cision should be supreme from the beginning to the end of litiga- 
 tion. The custom should be shattered, that permits the lawyer 
 to personate the client ; to argue against his own convictions ; to 
 substitute his client's morals and conscience for his own, in the 
 conduct of his cause. 
 
 It is probable that clients would dislike to have litigation de- 
 termined and conducted in the manner here suggested. No doubt 
 many would claim that such a method would take something 
 from their rights as citizens. No doubt they would consider 
 their own consciences as enlightened as the consciences of their 
 counsel and themselves as competent as their counsel to decide 
 what proceedings and defenses should be considered just. 
 
 But, conceding the conscience of the client is no less enlight- 
 
21 
 
 ened than the conscience of the lawyer, it still remains true that 
 the client is swayed in respect to his own case, by self-interest, 
 by excitement, by temper, or animosity, from which the lawyer 
 should be free. 
 
 Equal rights before the courts belong to all citizens; but it 
 should be no part of the rights of any citizen to make his quarrels 
 or disputes a public charge, nor should it be the right of any 
 citizen to decide what controversies are fit for litigation. These 
 questions should be decided by the lawyer. It is for this that he 
 has, or should have, the training of a specialist. For the just 
 decision of these questions he should be held responsible by the 
 courts. 
 
 The change of methods here urged will not be effected by the 
 lawyer unaided. Many prefer the existing methods. Those who 
 do not are unable to adopt the better method without consigning 
 their clients to those who do. 
 
 The change will not be effected by public opinion. The pub- 
 lic, disinterested, might approve it ; but the public, individualized 
 as clients, would disapprove. The change can hardly be effected 
 by adjudications of the courts upon the relative rights of lawyer 
 and client. Adjudications come too slowly, and few lawyers, or 
 none, will make the issues that call for them. 
 
 The most effectual aid must come from the oath administered 
 to the lawyer on his admission to the bar and the enforcement of 
 that oath by corresponding rules of the court. 
 
 The oath now prescribed varies in the different States. The 
 New York statute requires attorneys to take the constitutional 
 oath. It is the oath prescribed for members of the Legislature 
 and all officers, executive and judicial, except such inferior officers 
 as shall be by law exempted. Its form is as follows : " I do 
 solemnly swear (or affirm) that I will support the Constitution of 
 the United States and the Constitution of the State of New York, 
 and that I will faithfully discharge the duties of the office of 
 attorney and counselor-at-law in the courts of record of this State 
 to the best of my ability." What the duties of the office of attor- 
 ney and counselor-at-law are, and what their faithful performance 
 
22 
 
 requires, must be learned in the schools, from the books, or de- 
 termined for himself by each attorney. The form gives no in- 
 struction on these subjects and imposes on him who takes the 
 oath no obligation more specific than would an oath to be good. 
 
 Substantially the same form of oath is used in a dozen or more 
 of the other States — in California, Colorado, Illinois, Indiana, 
 Iowa, the Indian Territory, Kansas, Louisiana, Michigan, Ne- 
 braska, North Dakota, Wyoming, Utah. Colorado adds the re- 
 quirement that the applicant must swear that he has never been 
 disbarred or convicted of felony. 
 
 The oath imposed, upon admission to practice in the United 
 States Courts, Supreme, Circuit, and District, varies little from 
 that given above. The applicant swears that he will demean him^ 
 self in his office " uprightly and according to law," and will 
 " support the Constitution of the United States." 
 
 Seventeen of the States have adopted this form with little 
 variation. Texas adds the requirement that the attorney will 
 discharge his duty to his client to the best of his ability ; deeming 
 as it would seem that the lawyer must do something more for his 
 client than to demean himself " uprightly and according to law." 
 The other States and Territories that use the same form with 
 little variation of words are Alaska, Arizona, Arkansas, Florida, 
 Georgia, Maryland, Missouri, New Jersey, New Mexico, North 
 Carolina, Ohio, Oregon, Tennessee, Virginia, West Virginia, 
 Wisconsin. 
 
 The Clerk of the Supreme Court of Tennessee writes, " We 
 have no special oath in this State on record. Below is the form 
 I generally use : 
 
 "Do you promise to support the Constitution of the State of 
 Tennessee and the Constitution of the United States, and to 
 truly and honestly demean yourself while engaged in practice of 
 the profession ? " 
 
 To the oath to support the Constitution of the United States 
 and of the State and to " faithfully execute the office of attorney 
 to the best of his ability and according to law," there is added 
 in Kentucky an oath that the candidate for admission has not 
 
23 
 
 fought a duel, nor sent or accepted a challenge, nor acted as 
 second, nor aided or assisted any person thus offending. 
 
 This follows a constitutional requirement. The Nevada and 
 South Carolina oaths contain a similar clause about the duel. 
 
 Alabama, Delaware, Minnesota, Mississippi, and Pennsylvania 
 enlarge the scope of the oath beyond the forms used in the States 
 already mentioned. The oath is that " you will behave yourself 
 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." 
 
 Minnesota requires her attorneys to swear that they will be- 
 have themselves in an upright, courteous, and gentlemanly manner 
 to the best of their learning and ability. Courtesy and gentle- 
 manly bearing were perhaps taken for granted in the other States 
 already mentioned. Perhaps they were considered nonessential. 
 
 The New England States have a form devised for attorneys as 
 distinguished from legislators. It prescribes with some precision 
 the duties that must be " faithfully discharged " by the attorney. 
 
 South Dakota and Oklahoma have adopted, in substance, the 
 New England form. The oath required in the State of Maine 
 will serve as the example of the New England oath. It is as 
 follows : 
 
 " You will do no falsehood, nor consent to the doing of any 
 in Court, and if you know of an intention to commit any, you 
 will give knowledge thereof to the justices of the Court, or some 
 of them, that it may be prevented : you will not wittingly or 
 willingly promote, or sue, any false, groundless, or unlawful suit, 
 nor give aid or consent to the same; you will delay no man for 
 lucre or malice; but will conduct yourself in the office of an 
 attorney within the Courts according to the best of your knowl- 
 edge and discretion and with all good fidelity as well to the 
 Courts as to your client." 
 
 This form does not, like the preceding forms, leave it wholly 
 to the attorney to decide what he must do in order to " demean 
 himself uprightly and according to law" or to "faithfully dis- 
 charge the duties of the office of attorney and counsellor;" or 
 
24 
 
 " faithfully to execute to the best of his ability and according to 
 law " the office of attorney. It instructs him on some of the im- 
 portant duties of the attorney and by compelling him to reject 
 false, groundless, and unlawful suits, gives him some power to 
 control his client. 
 
 But despite its injunctions and prohibitions, it leaves him a 
 wide field for the active exercise of those arts, artifices, simula- 
 tions, and impersonations that have been generally characterized 
 as disingenuous and sometimes described as dishonest. 
 
 The young State of Idaho has a somewhat novel form with a 
 color of chivalry, yet gives the attorney no certain light. He 
 must swear to support the Constitution of the United States and 
 of the State and " that " he " will maintain the respect due to 
 Courts of Justice and to judicial officers ;" " that " he " will be 
 true to the Court and to his client ;" " that " he " will abstain 
 from all offensive personality " and " that " he " will never reject 
 for any consideration personal to " " himself " " the cause of the 
 defenseless or oppressed." 
 
 Of the novel features of this form, the most important per- 
 haps is that which pledges the attorney to abstain from all offen- 
 sive personality. Under the other forms mentioned, and even 
 under the rigorous New England form, he may be as offensively 
 personal and as disagreeable as he will. Indeed, he receives some 
 implied encouragement in that direction by the forms that inhibit 
 dueling. 
 
 One only of all the United States prescribes for its lawyers a 
 form of oath that indicates their control of their clients in respect 
 to litigation, and that points to their freedom from vassalage. 
 This is a State tender in years, but great in name and in aspira- 
 tions — the State of Washington. 
 
 This oath, though compact, is itself an essay on the subject of 
 legal ethics. 
 
 If it shall be enforced by the courts and lived up to by the 
 bar, it will be one of the State's best possessions. 
 
 It runs as follows : " Obligation to be sworn to by Attorney :" 
 
 1st. I do solemnly swear that I will support the Constitution 
 and laws of the State of Washington. 
 
2d. That I will maintain the respect due to Courts of Justice 
 and Judicial Officers. 
 
 3d. That I will counsel and maintain such actions, proceed- 
 ings and defenses only, as appear to me legal and just; except the 
 defense of a person charged with a public offense. 
 
 4th. To employ for the purpose of maintaining the causes con- 
 fided to me such means only as are consistent with truth and 
 never to seek to mislead the judge by any artifice or false state- 
 ment of facts or law. 
 
 5th. That I will maintain inviolate the confidence and, at every 
 peril to myself, preserve the secrets of my client. 
 
 6th. That I will abstain from all offensive personality and ad- 
 vance no fact prejudicial to the honor or reputation of a party 
 or witness unless required by the justice of the cause with which 
 I am charged. 
 
 7th. That I will never reject, from any consideration personal to 
 myself, the cause of the defenseless or oppressed. So help me 
 God." 
 
 The form of this obligation would be improved by inserting 
 after the word " Judge " in the fourth paragraph the words " or 
 jury," so that the paragraph would read : 
 
 " To employ for the purpose of maintaining the causes con- 
 fided to me, such means only as are consistent with truth and 
 never to seek to mislead the Judge or jury, by any artifice or false 
 statement of facts or law." 
 
 But, as it stands, it is a vast improvement upon the forms of 
 the other States. It would be worth a crusade to have it adopted 
 by every State and enforced appropriately by the rules of every 
 court and kept constantly before every attorney. 
 
 Its third paragraph, by the words " I will counsel and main- 
 tain such actions, proceedings and defenses only as appear to me 
 legal and just " makes the Counsel the one who, as between him- 
 self and his client, shall determine what suits and defenses shall 
 come before the court and requires that such as come there shall 
 appear to the Counsel to be not only legal but also just. 
 
 The 4th and 6th paragraphs forbid the artifices, exaggera- 
 
26 
 
 tions, subterfuges, evasions, suppressions, that help to make the 
 practice of the law discreditable. 
 
 The whole oath puts the responsibility of bringing suit, inter- 
 posing defense, and of conducting either, exactly where that re- 
 sponsibility should be put, upon the conscience and honor of the 
 lawyer. 
 
 To the aid that may be given the profession in adopting the 
 better method by the oath of office and by rules of court to en- 
 force its obligations, there should be added consistent instruction 
 to the student in the schools. If all the law schools in the land 
 should agree upon the principle and unite in teaching it, the 
 improvement would be half accomplished. A long step would 
 have been taken toward that perfection of litigation that it has 
 been one purpose of this address to outline. 
 
 A sensible contribiition would have been made to the honor- 
 able distinction of the coming Bar and to the success of coming 
 lawyers. 
 
 All students of the law hope and wish to succeed. Every 
 judge or lawyer who addresses them will say that, while the road 
 of the law is steep and flinty, yet if the student toils courageously 
 on he will find it leads to success. 
 
 But what is the success the speaker and the hearer have in 
 mind? 
 
 One kind of success is shown by the receipt of large fees. If 
 they are the return for large services and are the fair equivalent 
 for that which he who pays them has received in service, they are 
 one measure of success. 
 
 It is a success to gain verdicts from juries, if the verdicts are 
 just, but not if the jury has been misled to the belief that the 
 worse cause is the better cause. 
 
 It is a success to convince courts by argument, if the argu- 
 ment is founded on facts and law correctly presented. 
 
 It is a success to counsel clients so wisely that they can get 
 their rights without needless expenditure of time and effort. 
 
 But it is safe to say of any able lawyer who has passed the 
 passionate period of life, that he does not deem the verdicts he 
 
27 
 
 has won to have been successes, if they have been won by dis- 
 tortion of facts; by undeserved invective, by unjust aspersion of 
 character or motive, or if their winning has taken from the oppos- 
 ing party something that should have been left with him. 
 
 It is safe to say of such a lawyer that he does not vaunt himself 
 upon decisions that have followed his arguments, unless he knows 
 that his arguments have not confused the law or misled the court. 
 
 It is safe to say of such a lawyer that he does not deem his 
 counsel to clients an evidence of success for the reason that it has 
 helped his clients to get what they wished, unless he can also feel 
 that it has not helped them to get what they ought not to have had. 
 
 To have advanced the cause of truth and justice is a success, 
 whether this has been done by winning verdicts, by getting favor- 
 able decisions or by preventing needless litigation. 
 
 The success here outlined is the only kind of success that, in 
 the retrospect, satisfies the ambitious man whose ambition is 
 worthy. It is the kind of success that in the prospect should be 
 alluring to the young. 
 
 On December 2, 1903, Simeon E. Baldwin, LL. D., Justice of 
 the Supreme Court of Connecticut, delivered the second lecture 
 of the course at the Albany Law School which follows : 
 
 ' LEGAL ETHICS. 
 
 Albany Law School, December 2, 1903. 
 
 Legal ethics is sometimes, perhaps generally, thought of as an 
 affair of lawyers. But there is no man who may not have occa- 
 sion to look to it as his guard. It concerns every American citi- 
 zen, for in the stately phrase of Hooker there are none who are 
 beyond the power of courts, or without the need of their pro- 
 tection. The rules of legal ethics are, indeed, for the guidance 
 of the lawyer alone. But what is the position of the lawyer in 
 our American system of government? He is a part of it, not 
 simply as all men are, by virtue of his vote, as an elector, but as 
 one of the few to whom the State entrusts the administration of 
 
28 
 
 its affairs. The legal profession occupies the unique position of a 
 permanent ofificial body. 
 
 No function of government is more far-reaching, more power- 
 ful for good or evil, more close to every man at every hour, than 
 that we term the judicial power. It lies in our courts of justice, 
 and of those courts every attorney and counselor-at-law is, as 
 you know, an officer. The terms of judge and clerk and sheriff 
 will expire, but every lawyer at the bar is an officer for life. He 
 is, at least, an officer for life if he does not abuse his trust. 
 
 Legal ethics expresses the duties of this trust, and the whole 
 of them. Learning and skill are required of every lawyer by the 
 ethics of his profession, as much as are integrity and honor. No 
 man is honest who enters into practice at the bar of any court 
 without that amount of learning and that degree of skill which 
 the practice of the bar necessarily demands. The community 
 which has advanced him to this position of high official trust has 
 the right to require that he shall be fit to undertake its respon- 
 sibilities. It watches him narrowly to see if he is fit, and if it 
 finds him honest here — honestly prepared so far as knowledge 
 and ability are concerned — it watches him more closely still to 
 see if he is honest and honorable in other things. 
 
 To him also it looks for certain instruction in ethics — the 
 practical, every-day ethics of which our customary, unwritten 
 common law is so largely the expression. 
 
 " The proper study of mankind is Man.'' 
 
 It is the particular study of the lawyer, and he considers men 
 with regard to conduct. The world relies on the minister of re- 
 ligion to tell it of God ; on the physician to explain man's phy- 
 sical nature ; on the metaphysician to explain the laws of thought 
 and will; but it is the lawyer to whom all men look to tell them 
 of those duties to each other which society demands and enforces. 
 
 What one teaches he must know. The lawyer must know the 
 ethics of his own profession before he can assume to instruct 
 other people as to their obligations under that part of ethics 
 which the law has taken up and assimilated for their good govern- 
 ment. 
 
29 
 
 But his need of such knowledge goes deeper and begins earlier. 
 It springs up early in his path, when he is seeking to acquire a 
 legal education. 
 
 The first object, no doubt, of a law student is to learn law. But 
 he has learned it in vain, unless he has that character, and those 
 ideals, which, to him, more than to any other man, are necessary 
 to enable him to stand firm in his place against the temptations 
 the world has ready for him. 
 
 When John Quincy Adams was studying law under Theophi- 
 lus Parsons, he asked him whether he had better devote his 
 evenings as well as his days to strictly legal studies. No, said 
 Mr. Parsons. Read some of the writers on ethics. No man 
 should enter the bar unless his moral principles are strongly es- 
 tablished; else the necessity he is under of defending indiscrimi- 
 nately the good and the bad may lead him imperceptibly into 
 universal skepticism.* 
 
 It is not that want of moral principle, that lack of a clear sense 
 of duty, leads straight to skepticism in matters of religion. The 
 universal skepticism of which the great Chief Justice spoke goes 
 farther than that. It does not stop at atheism or agnosticism. 
 It is disbelief in any real distinction between rig'ht and wrong. 
 It is disbelief in justice itself — in that of which the lawyer is 
 the chosen minister. 
 
 Let him not think that the community will not find it out. 
 It is quick to detect a hypocrite ; and practicing law — which is 
 the voice of justice — without belief in the idea of justice, is 
 hypocrisy. To one in that position, it is natural to cheat the 
 adverse party and the adverse counsel, and the next step is to 
 cheat his client. 
 
 The rewards of the bar, the true rewards, the rewards that 
 last, are kept for the honest lawyer; and of honesty a nice sense 
 of professional honor is the surest guaranty. 
 
 There are many men who fail of success at the bar. They drop 
 out and disappear, and if you seek the cause it will not seldom be 
 found in some departure from the rules of legal ethics. 
 
 : ' * Proc. Mass. Hist. Soc, Sec. Series, XVI, 349. 
 
30 
 
 It is a good thing that so many of our American law schools 
 are now giving to their students some special instruction in these 
 rules. The purity of the bar must be maintained, or the springs 
 of justice will be poisoned at their source. 
 
 I shall ask you to consider with me, this evening, in particu- 
 lar, the ethics governing the relations of the bar to the bench. 
 
 The lawyer is an officer of the court, but the judge is his su- 
 perior. As in the army, so in the court-room, the superior officer 
 is entitled to instant and unquestioning obedience. If the judge 
 issues an order beyond his rightful authority, it is, nevertheless, 
 while it stands unreversed, the law of the case which it concerns. 
 Professional ethics forbids anything bordering on discourteous or 
 offensive criticism of it, whether in the court-room or out of it. 
 
 In most countries, such criticism, if found in newspapers, con- 
 stitutes a misdemeanor. Even general charges of partiality, or 
 incompetency, against a judge of one of the higher courts, are 
 a criminal libel by the English common law. Under our Ameri- 
 can system of popular elections there is accorded a greater free- 
 dom of public comment on judicial action, but it is accorded to 
 the public, not to the lawyer. He has no ethical right to use 
 that weapon, whether by anonymous communication, or over his 
 own signature, unless as part of a serious effort to remove an un- 
 worthy judge from office. To resort to it to bring attention to 
 a particular disposition of a particular cause would be a con- 
 tempt of court ; but in any other instance, it is equally a breach 
 of professional duty. 
 
 If his client has been aggrieved by an irregular or unwarrant- 
 able judgment, there is commonly a remedy by appeal; but on 
 appeal the action of the trial court, however justly it may be 
 attacked as erroneous, should be attacked with the respect due to 
 an official superior, and also with that due to one who is not and 
 cannot be present to defend himself. 
 
 Every country stamps upon its people certain national char- 
 acteristics. There is one which marked our fathers more than 
 it marks us ; the quality of reverence. It is a good quality, al- 
 ways and everywhere. It is good when exercised toward age. 
 
31 
 
 As such it has been the staying power of Chinese institutions for 
 three thousand years. It is good when exercised toward the 
 glad innocence of childhood. Maxima reverentia pueris debetur. 
 It is at its best when exercised by a free people toward that in- 
 tangible authority we call the State. Whoever else may fail in it, 
 a lawyer cannot. For him it is a kind of treason not to revere 
 the power of law, and respect the dignity of those who administer 
 it. He may be arguing some petty cause before a justice of the 
 peace. He may be arguing a great one, before the Supreme 
 Court of the United States, a court for States, or before The 
 Hague Tribunal — a court for nations. In either case he owes 
 the same respect to the authority to which the cause has been 
 submitted. 
 
 Rufus Choate, when the leader of the Massachusetts bar, had 
 occasion to represent the owner of land, aflfected by a public im- 
 provement, before a sheriff's jury, upon an inquest of damages. 
 A young lawyer, appearing for another interested in the proceed- 
 ings, treated the sheriff in an unceremonious fashion, even re- 
 maining seated when he addressed him. Mr. Choate, after a 
 while, had occasion to take an exception, and rising as he spoke, 
 began with: " I rise, Mr. Chairman (for I always stand in pub- 
 licly addressing the sheriff of my county when acting in this ca- 
 pacity), to except to the ruling which has just been made." A 
 general buzz of approval followed, which taught one man, at 
 least, one duty which, as a lawyer, he owed to a public ofificer who 
 there stood for the State. 
 
 It is this — that the judge stands for the State — that is the 
 controlling reason for the respect due from lawyers to the bench ; 
 respect due, hard as it may be to pay it, even to the ignorant and 
 incapable judge, for he represents, for the time being, the whole 
 authority of government. 
 
 It is sometimes harder still to pay respect to the captious, and 
 carping, the domineering and interrupting judge. It would do 
 good to those of us in the profession who find ourselves upon 
 the bench to read over every year Lord Bacon's fine essay on 
 Judicature. 
 
32 
 
 "An Overspeaking Judge," he says, you may remember, " is 
 no well tuned Cymbal). It is no grace to a Judge, first to finde 
 that, which hee might have heard, in due time, from the Barre; 
 or to shew Quicknesse of Conceit in Cutting off Evidence or 
 Counsell too short ; Or to prevent Information, by Questions 
 though Pertinent. The Parts of a Judge in Hearing are Foure : 
 To direct the Evidence ; To Moderate Length, Repetition, or Im- 
 pertinency of Speech ; To Recapitulate, Select, and Collate, the 
 Materiall Points of that, which hath beene said; And to Give 
 the Rule or Sentence. Whatsoever is above these, is too much; 
 And proceedeth Either of Glory and willingnesse to Speake; Or 
 of Impatience to Heare; Or of Shortnesse of Memorie; Or of 
 Want of a Staid and Equall Attention." 
 
 Many are the judges who by a succession of questions and 
 interruptions will irritate the counsel to whom they had better 
 be listening in patience, and almost tempt him to throw up his 
 case. And, on the other hand, many are the lawyers whose argu- 
 ments are a waste of time, and who first see the point of their 
 case when it is decided against them. Bacon has both in mind, 
 when he adds : 
 
 "And let not the Counsell at the Barre chop with the Judge, 
 nor winde himself e into the handling of the Cause anew, after 
 the Judge hath Declared his Sentence : But on the other side. 
 Let not the Judge meet the Cause halfe Way ; Nor give Occasion 
 to the Partie to say ; His Counsell or Proofes were not heard." 
 
 I would not be understood as asserting that counsel never have 
 a right to stand up in court and oppose themselves to a judicial 
 ruling in a cause. Their duty to their client under extraordinary 
 circumstances may demand it. It was so in the famous scene 
 between Mr. Justice Buller and Erskine, on the trial of Dean 
 Shipley for a criminal libel. Erskine had argued to the jury that 
 they had the right to return a general verdict of not guilty, un- 
 less they believed the publication to be a libel. This was a doc- 
 trine made good a few years later, and largely because of this 
 incident, by Charles James Fox's Libel Act; but not then law. 
 The court charged the jury that if they found a publication, they 
 
33 
 
 must find the defendant guilty. They came in with a verdict of 
 guilty of publishing only. The judge informed them that the 
 word "only" was an improper addition, and the verdict should be 
 corrected by omitting it. Erskine at once interposed. " Gentle- 
 men," said he, addressing the jury, " I desire to know whether 
 you mean this word only to stand as part of your verdict ? " 
 "Yes," was the reply. "Then," he went on, addressing the 
 court, " I desire your Lordship to record the verdict as given by 
 the jury." The judge replied that the jury were evidently under 
 a misunderstanding. " My Lord," said Erskine, " they under- 
 stand their verdict." " Sir," said the judge, " I will not be in- 
 terrupted. Sit down, sir, and remember your duty, or I shall 
 proceed in another manner." "Your Lordship," rejoined he, 
 " may proceed in what manner you think fit. I know my duty, 
 as well as your Lordship knows yours. I shall not altc my con- 
 duct, as an advocate."* 
 
 Such cases as this belong mainly to another age and another 
 country. But as time goes on, here in America, there may be oc- 
 casions, too, when counsel, in defense of what they are claiming 
 as their client's rights under the Constitution of his State or 
 nation, may find themselves in like situations, and with no less 
 warrant to save a verdict by a contention with the court. The / 
 advocate has his rights, as the judge has his. 
 
 I have spoken thus far of the respect due to the bench as the 
 representative of human justice and of the State. 
 
 There is another reason for paying respect to the court as 
 a matter of legal ethics. 
 
 The bar is a body of lawyers. The bench is a body of lawyers. 
 All are engaged in administering one and the same system of 
 procedure. All are embarked in a common cause and under the 
 same standard. The esprit du corps of the profession can only 
 be maintained by standing by one another. The judge owes 
 courtesy to the bar. The bar owes respect to the bench. 
 
 For the same cause it owes it to itself to show respect for 
 judicial authority outside the court-room, in mixing with the 
 people, and sharing in the general discussions of the day. 
 
 * Campbell's Lives of the Lord Chancellors, 8, 276. 
 
34 
 
 In the opening lecture of this course, some reference was made 
 to the form of the attorney's oath. 
 
 In many of our States, as was stated by Gen. Hubbard, and in 
 most foreign countries, I believe, it includes a pledge of fidelity 
 to court, as well as to client. Legal ethics anticipates this pledge. 
 It is a necessary incident of that loyalty, which every lawyer 
 must owe to the court of which he is a trusted officer. 
 
 He must show it in the processes which he sues out. To per- 
 vert a judicial writ to an improper use; to employ it for purposes 
 of blackmail, or lawless intimidation; is to be unfaithful to the 
 court. A great temptation is often felt to use a writ of attach- 
 ment, perhaps against the body, perhaps ag'ainst property, as a 
 means of forcing a settlement or compromise of an unfounded 
 claim, and one which the attorney who procures the writ knows 
 to be unfounded. To stoop to such a trick is to betray a trust. 
 It is to serve a client by getting not justice for him, but injustice. 
 
 And so in drawing pleadings. They are for the judges to read. 
 They are your statement of what you assert to be the facts ma- 
 terial to your client's case. A lawyer breaks the rules of legal 
 ethics who so states as facts what he knows are not facts. He 
 is, perhaps, seeking to avoid a demurrer. But it is the interest 
 of the court and of the State that his pleadings should be met by 
 a demurrer if his client has no real cause of action or defense. 
 To misstate is to mislead and to deceive. Sham pleadings are 
 too often the disgrace of the bar. 
 
 In that frank biography of Lincoln by his law partner. Hern- 
 don tells us of an incident in the great President's career at the 
 bar that I will venture to repeat, though some of you may remem- 
 ber it. The firm were for the defense in an important suit. Their 
 client was very anxious to secure a continuance, but there was 
 no good ground on which to move for it. Herndon, as the term 
 was about to open, happened to overhear a remark of the plain- 
 tiff's attorney to the effect that he hoped the other side would 
 not get hold of a certain fact, as it would be hard to meet it. No 
 such fact existed and Herndon knew it. He went to his office, 
 however, and drew a plea in which it was set up. The plaintiff 
 
35 
 
 could not demur, for the plea, on its face, was a perfect bar. He 
 did not dare to deny it, for he thougiat, though mistakenly, that 
 it was probably true. Herndon then told Lincoln of what he had 
 done, expecting to receive his congratulations. " But," said Lin- 
 coln, " that is nothing but a sham plea. We ought not to put 
 it in. We must withdraw it." They did, and the right to a con- 
 tinuance was lost. 
 
 Not another lawyer in the county, writes Herndon, as he tells 
 the story, would have done it. And then he adds — No ; but not 
 another lawyer in the county will be remembered a hundred years 
 hence. Lincoln will be. 
 
 Let us imagine a reversal of the story. Herndon receives from 
 his partner the congratulations which he expected for his clever 
 trick. Then the attorney for the plaintiff finds reason to think 
 the plea a false one. He calls upon them to state in court whether 
 they believe they can produce evidence of it. The truth comes 
 out on the next motion day. It stays in men's minds. Lincoln, 
 then, was not the honest, sincere fellow they had always thought 
 him. He is spoken of as a candidate for Senator, for President. 
 The story is repeated. The newspapers get hold of it. The head- 
 line artist puts it at its worst. If he is nominated, the story still 
 pursues him, growing as it goes, and seeming less and less capa- 
 ble of extenuation, as party spirit colors unfriendly criticism. 
 
 If these things had happened, Lincoln would never have been 
 President of the United States. 
 
 I would not be understood as intimating that any thought of 
 his political future entered his mind when he insisted that the 
 sham plea must be withdrawn. He was not one of those for 
 whom exists the maxim that honesty is the best policy. He was 
 from his youth and by the necessity of his nature what the people 
 fondly called him, " honest Abe." No rules of legal ethics are 
 needed for such men. They are their own rules. 
 
 But for most of us it is quite as well to have a chart to sail by. 
 We may know very well the general course we ought to take. 
 Every point we pass may be familiar. And yet, when the storm 
 comes, the sudden call, it steadies the eye and nerves the judg- 
 
36 
 
 ment to have something outside of our own selves, some written 
 word, some accepted rule, some line marked out by other hands, 
 to which to look for better certainty. 
 
 I have spoken of vexatious writs and sham pleas. 
 
 Let us pass to the duty of the lawyer in argument. 
 
 He is trying a cause before a weak judge, with Httle learning 
 and little capacity. The adverse counsel is a man of the same 
 sort, dull, ignorant, inexperienced. There is a point which you 
 could make that seems plausible, and, if granted, would be con- 
 trolling in your favor — one of those points, it may be, on which 
 courts of last resort have differed, and which such a court could 
 decide one way as fairly as another. The court of last resort in 
 your State has, however, decided it against you. You have read 
 this very case in the reports, most regretfully, before the trial. 
 No one else in the court-room has ever heard of it. You are sure 
 of this from the interlocutory rulings of the judge and objections 
 of the lawyers. Can you ignore it, and argue that this point is 
 decisive for your client? 
 
 If you do, you may, you probably will, win the cause. But you 
 will win it at the expense of professional duty. You will win it 
 at the expense of that fidelity to the court, which your attorney's 
 oath has bound you to observe. 
 
 And here, again, the natural law of retribution works against 
 you. The lawyer on the other side, before the time for an ap- 
 peal is past, may light on this authority of which you knew and 
 he was ignorant at the trial. The appellate court will think 
 lightly of the professional ability of one who could advance a 
 proposition so plainly untenable. The bar will think lightly of it, 
 and you will sink to a lower level in their opinion. 
 
 " Law," Aaron Burr once said, " is whatever is confidently as- 
 serted and plausibly maintained." That was the principle upon 
 which he practiced his profession, but brilliant talents and wide 
 learning did not avail to make his professional career anything 
 but a long succession of disappointed hopes. He was at the bar 
 what he was in the Senate, and the bar knew him as the people 
 knew him. 
 
Z7 
 
 The bar is the lawyer's world. There is his professional repu- 
 tation made and settled. And the bar is, in the main, a just judge. 
 It knows itself. It knows its temptations, and it knows who, as 
 they come, surrenders and who withstands. 
 
 One of these temptations, and one of the subtlest and hardest 
 to resist is, in quoting authorities, to make an unfair citation. 
 Half a paragraph from a text-book or a judicial opinion will 
 sometimes read finely in support of the view for which you are 
 contending, when the rest takes the life out of it by some dis- 
 agreeable qualification or limitation. 
 
 Legal ethics forbids reading one, without at least alluding to 
 the other. It is not enough to still conscience to say to yourself 
 that if the other side want the whole brought out, they will have 
 the opportunity to do it. It is your business not to misinform 
 the court; and suppression in such a case is misinformation. 
 
 Nor should a lawyer ever allow himself to misquote evidence 
 or misstate the claims made in argument by the opposing coun- 
 sel. It is not only a lie: it is a mean lie, because uttered by an 
 officer of court to mislead the court of which he is an officer. It 
 is a sort of domestic treason. 
 
 There is such a thing as " having the ear of the court." 
 
 It can be gained without any of the graces of oratory ; but not 
 without having established your reputation, not only for clear 
 thinking, but for honest statement of the facts and law — honest, 
 I mean, as you se^ the facts to be and as you claim the law to be. 
 
 I should be far from saying that no claim of law or fact can 
 properly be made in argument, or no objection taken at a trial, of 
 the soundness and fairness of which the counsel making it is not 
 himself convinced. He is not put there to decide a cause, nor to 
 present both sides of it. His duty begins and ends with the pres- 
 entation of his client's side. 
 
 There is but one limitation. He may do and ought to do what- 
 ever the client could lawfully and honestly do for himself, if argu- 
 ing his own cause. The limitation is not to what his client could 
 honorably do. It may not always be honorable to claim the 
 benefit of the Statute of Limitations. It may not always be honor- 
 
38 
 
 able to take advantage of the defense of infancy. But it is the 
 legal right of a party to set up such a shield, and, if he desires, 
 it is the legal duty of his lawyer to do it for him. 
 
 There is a lower standard of ethics for the client than for the 
 
 lawyer. One is measured by law : the other by honor. But the 
 
 lawyer's standard — that of honor — is not maintained, unless he 
 
 ^ does for his client whatever that client asks within his legal rights. 
 
 I know no better illustration of this distinction, not always 
 recognized by the community, but a real and true distinction, 
 than is furnished by an incident in the life of William Wirt. 
 
 A hundred years ago George Wythe was Chancellor of Vir- 
 ginia. He was one of the signers of the Declaration of Independ- 
 ence. He had been the first professor of law in America, and 
 in one of his early classes at William and Mary College John 
 Marshall had gained his first knowledge of the science to which 
 he was to add so much. In 1806, at the age of eighty, he was 
 taken violently sick, with symptoms of arsenical poisoning, and 
 shortly afterward died. One of his nearest surviving relatives 
 was a grandnephew, his namesake, in whose favor it had been 
 generally understood that he had made his will. Suspicion was 
 aroused. Inquiries were set on foot. The servants in the Chan- 
 cellor's household were questioned. The cook said that on the 
 day when her master fell sick, this grandnephew had come into 
 the kitchen and dropped something white into the coffee-pot. 
 The man servant had drunk of the coffee that ijiorning, and died 
 before his master. The coffee-grounds had been thrown out into 
 the yard. They were examined by chemists and a large quantity 
 of arsenic was found mingled with them. Some chickens ate of 
 them and died. The Chancellor lived long enough to alter his 
 will, and cut off his nephew. This wretch was promptly indicted 
 for murder. His family applied to Wirt to defend him. After 
 some hesitation, and on the advice of one of the Virginia 
 judges, he accepted the retainer, and secured his acquittal.* It 
 was easily to be obtained. The testimony of the negro cook alone 
 could connect the defendant with the crime. The statutes of Vir- 
 
 ■ Kennedy's Life of William Wirt, I, 140. 
 
39 
 
 ginia forbade the reception of the testimony of negroes against 
 white men. Was it consistent with legal ethics for Wirt to in- 
 sist that there was no clear evidence of guilt? It would have 
 been inconsistent with legal ethics not to insist upon it His 
 client could have lawfully made the point, had he been conduct- 
 ing his own cause. Why had Virginia enacted such a law? Be- 
 cause her people believed that slave testimony was untrustworthy 
 when introduced against a white man. The defendant had an 
 absolute and clear right before the law to take the benefit of the 
 statute. He had an absolute and clear right before the law to be 
 acquitted, unless the State could bring forward legal evidence of 
 his guilt. Wirt had nothing to do with that man's conscience. 
 He could only ask what could my client lawfully do for himself, 
 were he in my place? And to that there was but one answer. 
 
 An honorable lawyer may defend the blackest villain. No one 
 denies that he is bound to defend him, if assigned to such a duty 
 by the court. But why does the law provide for such an assign- 
 ment? Because it has been found best to serve the ends of jus- 
 tice that convictions for crime shall be had only on free confes- 
 sion, or full proof made after all the opposition that professional 
 skill and learning can fairly make in the criminal's behalf. He 
 has then a right to defense by counsel, and counsel have a right 
 to serve as such. I will not say that it is their duty to serve for 
 all who ask it; but when they have engaged to defend one ac- 
 cused of crime or charged with any actionable wrong, such op- 
 position as he could lawfully make, were he gifted with their 
 office and ability, they are in honor bound to make for him. It 
 is not the only instance in human experience in which honor leads 
 through dirty roads. 
 
 I speak of honor, for honor is the real touchstone for a law- 
 yer's conduct. 
 
 It may make it improper to seek what it would not be improper 
 to accept unsought. As the Romans put it in their law: 
 " Quaedam enim, temetsi honest e accipiantur, inhoneste tamen 
 petuntur."* The ambulance-chaser does nothing dishonest, but 
 none the less he dishonors his profession. 
 
 * Dig. so. 13. de extraordinariis cognitionihus, i, § 5. 
 
40 
 
 There is also a solid wall of distinction between defending a 
 client in civil causes against a judgment for what he knows and 
 you know that he honestly owes, and bringing an action on a 
 claim which you know not to be honestly due. 
 
 In every action, civil or criminal, the moving party must make 
 out his case. Every defendant has a lawful and honest right to 
 insist upon this measure of protection. Rules of court may limit 
 it by cutting off those delays Which only are properly due when a 
 just defense is claimed. They may limit it, but not deny it. 
 
 No party, on the other hand, has a right to occupy the time of 
 courts with groundless suits, known to be groundless by him who 
 brings them. The lawyer fails in duty who accepts a retainer 
 for such a purpose. I speak only of plain cases — cases without 
 a reasonable show of merit or chance of success. Where there 
 is a reasonable doubt, a fighting chance even, it is not improper 
 for a lawyer to act, provided the client wishes it, after full in- 
 formation from him of the probable result and probable expense. 
 No lawyer of long experience has failed to find, in many a case 
 brought under such circumstances for an insistent client, that 
 the client was right and he was wrong. No judge of long ex- 
 perience has failed to come to a final decision for the plaintiff in 
 many a suit which, when it was first presented to his considera- 
 tion, seemed absolutely baseless and even frivolous. 
 
 A decree of Napoleon, in 1810, ignored all this, and required 
 every one, on admission to the bar of France, to make oath that 
 he would advise no suit and make no defense which he should 
 not on his soul and conscience believe just.* Twelve years later 
 this requirement was swept away, and has never been restored. 
 It set a standard of action too high for beings not gifted with 
 more than human powers. Man is always, as Emerson says, 
 building better than he knows. 
 
 The State of Washington, in a form of oath commended by the 
 founder of this course before you last month, has pushed beyond 
 
 * Something like this had been enjoined in the oath for advocates pre- 
 scribed in 1274 by Philip III. See Merlin, Rep. .A.vocat, p. 295, and Cod. 3. 
 I. de judiciis, 12. 
 
41 
 
 any of her sister States, but stopped far short of the ground 
 taken by Napoleon. Each lawyer coming to her bar must sol- 
 emnly declare that, "Except in defending my clients charged 
 with crime, I will maintain such actions, proceedings, and de- 
 fenses only as appear to me legal and just." Not only such as I 
 think just. The word " legal " is added for a purpose. It recog- 
 nizes the client's right to make such claims as if honestly made 
 the law may sanction, although were it not for such a rule of 
 law, the rules of human justice might forbid it. 
 
 A lawyer may thus, in full conformity with legal ethics, plead 
 to the jurisdiction, if his client wishes it, for some defect having 
 no relation to the merits of the cause, and when to dismiss the 
 cause is to defeat what would be justice, were there no law to 
 support the plea. 
 
 The lawyer who thus carries out his client's will by claiming 
 for him a strict legal advantage, on which a client with a higher 
 sense of honor might disdain to lean, is, I believe, in the line of 
 professional duty, and, therefore, of professional honor. For 
 honor, though not what courts demand of the client, is what they 
 demand of the lawyer. 
 
 Legal ethics is by no means measured by the rule of honesty. 
 I am afraid that in our English tongue we have somewhat de- 
 graded the meaning of that fine old word. To the Romans 
 honestum meant only that which was dictated by a sense of honor. 
 A thing might be lawful, and yet not honorable, not what they 
 understood as honest. As they expressed it in the Pandects, 
 " Non omne, quod licet, honestum est."* The French have kept 
 this meaning better. We have let the word sink to the mere level 
 of morality. Honor flies higher. Our profession we are proud 
 to call and right in calling an honorable profession. Honor is 
 the one word to express the essence of legal ethics. It is the 
 one word, in all things, to measure the standard of a lawyer's 
 duty. He is a combatant, a champion in a legal duel. He must 
 fight it in the spirit of chivalry. 
 
 The Romans did not hesitate to put this fighting quality of the 
 
 * Dig. 50. 17. de diversis regulis juris antiqui, 144. 
 
42 
 
 lawyer — this fighting for other men — as his great and true title 
 to public regard. As they state it in their Code:* "Advocates 
 who resolve the doubtful fates of causes and by the strength of 
 their defense often set up again that which had fallen, and re- 
 store that which was weakened, whether in public or in private 
 concerns, protect mankind not less than if they saved country 
 and home by battle and by wounds. For in our warlike empire 
 we confide not in those alone who contend with swords, shields 
 and breastplates, but in advocates also, for those who manage 
 others' causes fight as, confident in the strength of glorious elo- 
 quence, they defend the hope and life and children of those in 
 peril." 
 
 Knights are not always in armor, and I ought not to conclude 
 this lecture without some reference to what legal ethics may say 
 as to the social relations that may be maintained between the 
 lawyer and the judge out of the court-room. 
 
 In England, with their few and hard-worked judges in the 
 higher courts, and with their customs and traditions as to rights 
 of precedence and the deference to be paid to rank, a stricter rule 
 exists than in America. Here, in many of our petty courts, the 
 business is insufficient to occupy the entire time of the judges, 
 and they may be presiding on the bench to-day and practicing 
 at the bar to-morrow. Here, also, the judges in the higher courts 
 and the lawyers at the bar stand on the same social plane, 
 meet in companies where it would be ridiculous to appear other- 
 wise than as equals, and are often thrown familiarly together in 
 the daily business of common life. With few exceptions the State 
 judiciary is made up of those who hold office not for life or good 
 behavior, but for stated terms, which, in no event, can be pro- 
 longed beyond the time when they reach seventy years of age. 
 With few exceptions the Federal judges voluntarily retire at the 
 same age. 
 
 It is, therefore, a common thing here for judges to entertain 
 lawyers at their houses, and lawyers to entertain judges at theirs, 
 without regard to whether there are or are not causes pending in 
 
 * Code, 2. 7. de advocatis diversorum judiciorum, 14. 
 
43 
 
 the trial of which they may all take part. I need not say that 
 custom unites with legal ethics in forbidding conversation, on 
 such occasions, between judge and counsel as to the merits of 
 such causes. There is but one place for that — in court — until 
 final judgment had been pronounced ; and then if anything be said 
 outside, there should be the utmost care on the one side to ask 
 nothing and on the other to say nothing which could in the re- 
 motest manner have an unfavorable bearing on the dignity of 
 the court or the interests of any party. 
 
 Within the limits that I have tried to indicate, social inter- 
 course between judges and lawyers is a pleasant necessity of 
 American life, and serves only to emphasize the principles on 
 which our institutions depend for their existence. 
 
 The subject of the course in which I have had the honor to 
 take part to-night is one of especial interest and concern to a 
 body of students such as I address. You are part of an ancient 
 University that has already shared something of the life of three 
 successive centuries. There are law schools that stand alone, 
 unsupported by university foundations, unsteadied by univer- 
 sity influences. Such schools miss much. It is no small thing 
 to any institution to be a vital part of a larger institution. It 
 broadens views and elevates ideals. So does it bring respon- 
 sibility. 
 
 To you, as members of Union University, legal ethics appeals 
 with double force, for it will be for you as lawyers, by adher- 
 ence to its rules, to preserve not only your honor, but hers. As 
 was the lady of his lovie to the knight of chivalry, so is their 
 Alma Mater to the sons of a university — to each her reputation 
 dearer almost than his own, her fair name never to be tarnished 
 by act of his. 
 
LEGAL ETHICS 
 
 ADDRESS 
 
 DELIVERED AT COMMENCEMENT 
 
 OF 
 
 Albany Law School 
 
 June First, 1904 
 
 BY 
 
 DAVID J. BREWER 
 
 Justice Supreme Court United States 
 
ALUMNI AND COMMENCEMENT DAY 
 
 AT ALBANY LAW SCHOOL 
 
 June 1st, 1904 
 
 Alumni Meeting. 
 
 The annual meeting of the Alumni Association of the Albany 
 Law School was held at the Hotel Ten Eyck on Commencement 
 Day. 
 
 The business meeting was called to order at one o'clock by 
 Gen. Thomas H. Hubbard, President of the Association. 
 
 The following officers were elected for 1904-1905. 
 
 Honorary President, David J. Brewer, '58. 
 
 President, Wheeler H. Peckham, '52. 
 
 First Vice-President, Lewis E. Carr, '64. 
 
 Second Vice-President, Adelbert Moot, 'jj. 
 
 Third Vice-President, J. Franklin Fort, '72. 
 
 Fourth Vice-President, Andrew S. Draper, '71. 
 
 Fifth Vice-President, Albert H. Sewell, '73. 
 
 At the luncheon which followed the business meeting. Presi- 
 dent Hubbard acting as toastmaster. Justice Brewer spoke of the 
 earlier days of the School, he having been a student during the 
 first decade under the administration of Amos Dean, Judge 
 Amasa J. Parker and Senator Harris. He was followed by 
 Chancellor Raymond who spoke on behalf of the University, 
 announcing the issue of the first number of the University 
 Quarterly, and the proposed celebration of the looth anniversary 
 of the calling of Dr. Nott to the presidency of Union College. 
 Henry W. Van Alen responded on behalf of the graduating class. 
 
 Dean Fiero, on behalf of the trustees, presented to the Associa- 
 tion, the action of the Board with reference to a new law school 
 building, the resolution having been adopted at a recent meeting 
 of that body, as follows : 
 
Resolved, That a committee of three be appointed, of which 
 committee the President shall be a member, to present plans for 
 a school building, to inquire into, and report upon, the method 
 to be adopted in procuring the necessary funds for its erection, 
 and to present the matter to the Alumni and friends of the Law 
 Department of the University for their consideration and advice. 
 
 Judge Vann in an earnest and eloquent address urged early 
 and effective action in favor of the project, and upon his motion 
 the Association resolved itself into a business meeting and adopted 
 the following resolution : 
 
 Resolved, That a committee consisting of five members be 
 appointed by the Association to consider and act upon the subject- 
 matter of the resolution presented by the Board of Trustees rel- 
 ative to the erection of a new school building. 
 
 Under this resolution the active committee of the Alumni con- 
 sists of Gen. Hubbard, Chief Judge Parker, Judge Vann, Wheeler 
 II. Peckham and Amasa J. Parker. 
 
 It was further resolved that Justice David J. Brewer be named 
 as Honorary Chairman of such Alumni Committee. 
 
 The Committee of the Board of Trustees consists of President 
 Amasa J. Parker, Dean Fiero, Seymour Van Santvoord, Charles 
 J. Buchanan and Edward P. White. President Parker being a 
 member of both committees. 
 
 It is expected that the committees will meet in joint session 
 and take such action as may be deemed advisable upon careful 
 consideration of the whole matter. 
 
 Commencement Exercises. 
 
 The commencement exercises were held on the evening of 
 June 1st, at Odd Fellows' Hall. Among those in attendance, in 
 addition to the active members of the Faculty, were Chief Judge 
 Parker, Judges Vann, Bartlett, Martin, Werner and Herrick. 
 President Amasa J. Parker presided. The diplomas were de- 
 livered and degrees conferred by Chancellor Raymond as follows : 
 
 Students receiving the degree of LL.B., John Peaslee Badger, 
 Jr., Henry S. Bahler, Mark Byron Bennitt, Lester W. Bloch, 
 Charles E. Brennan, Frank Campbell Brown, William T. Byrne, 
 William John Cahill, Stephen Elias Chaffee, Robert B. Craft, 
 
5 
 
 Robley D. Cramer, Harrie McKelvey Curtis, W. J. DeLamater, 
 Milton E. DeVoe, Nicholas DeVoe, Niram DeVoe, Nelson L. 
 Drummond, Daniel Aloysius Dugan, Edward Easton, Jr., Maurice 
 B. Flinn, Samuel M. Haight, George J. Hatt, 2d, Robert Babcock 
 Haner, Harry R. Merrill, Quincy McGuire, Lawrence B. McKel- 
 vey, George Bassett Odwell, James Craig Roberts, William C. 
 Roche, David Cornelius Salyerds, Louis Berry Shay, George H. 
 Smith, Peter George Smith, Thomas M. Smith, Frank L. Stiles, 
 Herbert Blakeslee Thomas, Percy J. Thomas, Francis X. Thomp- 
 son, Charles Joseph Tobin, Henry Whitbeck Van Alen, John T. 
 Van Valkenburg, Harold Wilson, Jr., Robert Newton Wilson. 
 
 Students receiving diploma, Edward R. Bootey, Jr., Lester C. 
 Brownell, Jr., John E. Diefendorf, Robert B. Dudley, John M. 
 Hackett, Arthur S. Hoag, Charles L. Hoey, George Webb John- 
 son, Charles E. Palmer, Jr., Frederick Seward Reigle, Timothy 
 Roland, Delbert B. Salmon, James W. Sutton, Benjamin Terk, 
 John W. Van Allen. 
 
 The address to the graduates delivered by Justice Brewer is 
 one of the lectures in the Hubbard Course on Legal Ethics. 
 Justice Brewer spoke as follows : 
 
 You doubtless remember the story of the Irishman who, 
 passing a tombstone on which was the inscription, " a lawyer, 
 an honest man," facetiously asked why they put two bodies in 
 the same grave. At a banquet given in honor of a distinguished 
 lawyer the toast to the guest was, " an honest lawyer, the 
 noblest work of God," to which a countryman promptly added 
 " and about the scarcest." Not many years since I received 
 a letter from a clergyman in which he asked the specific ques- 
 tion whether I believed a man could be a Christian and at the 
 same time practice law. Evidently " woe unto you lawyers " 
 was a part of his creed. The question suggests a common be- 
 lief that there is a wide incompatibility between personal 
 honesty and the practice of the law. It is, therefore, pertinent 
 to inquire whether there is any incompatibility. If in order to 
 become a successful lawyer one must be more or less dishonest 
 it is hardly worth while to waste time in discussing the ques- 
 tion of professional ethics, for a profession depending on dis- 
 honesty calls for little worry about the extent to which the dis- 
 honesty is carried. It is an old adage that there is honor among 
 
thieves, but I never thought there was need of considering the 
 quantity of honor which should prevail among them. 
 
 So far from there being any incompatibility between per- 
 sonal integrity and the practice of the law, success in the prac- 
 tice requires the highest integrity and unfailing honesty. I 
 do not, of course, mean that all lawyers are shining examples of 
 high character. There are bad men in all professions, as there are 
 black sheep in every flock. Doubtless some personally dishonest, 
 by their intellectual skill, brilliancy in the courtroom or knowledge 
 of the law achieve notoriety at least and not infrequently wealth, 
 as wealth is known to the profession. But notwithstanding 
 this concession, I insist that personal integrity is as essential 
 to a lawyer's success as to success in any other business or pro- 
 fession ; that a lack of it is a bar to the highest place, and that 
 a good character is as important a qualification of a lawyer as 
 of a minister. The work he does, the position he fills and the 
 responsibilities he assumes all demand personal integrity. 
 
 Let us analyze these matters a little, and see if this state- 
 ment is not correct. The lawyer is a counselor, and who 
 would ever go for advice to one who, as he thinks, will deceive 
 him? Would you in time of sickness go to a physician unless 
 you believed that he would give you the medicine which in 
 his judgment was that which your illness demanded? 
 
 Again, a lawyer acts for his client in negotiations with others. 
 Here fidelity is absoluteh^ essential. If it be generally believed 
 that he lacks this fidelity who will employ him? Who will seek 
 one to represent him who will not be faithful to the trust 
 imposed ? 
 
 Still again, there is no place where perhaps more reliance 
 has to be placed upon honesty than in a courtroom. Both client 
 and court must rely upon counsel. In all court work judges 
 have to depend largely on the statements of counsel, and every 
 judge knows that he does so in safety. I have been on the 
 bench more than thirty-nine years. Thousands of lawyers in 
 different States have appeared before me, and in only a single 
 instance did I detect a lawyer in knowingly making a misstate- 
 ment. I promptly made that public. His subsequent practice 
 in my court was not pleasant and he soon left the State for 
 
more congenial fields. Further than that, I do not think in 
 over a dozen cases did I strongly suspect counsel of intentional 
 misstatement, and I appeal with confidence to the great body 
 of judges throughout the land if their experience has not been 
 similar. I do not mean to say that I have not found counsel 
 leaving out matters I think they ought to have stated, or group- 
 ing their statements in a way likely to conceal the significance 
 of some facts, or other things of a similar nature. I mean 
 simply that intentional misstatement by counsel is very rare. 
 If it be said that there is, by reason of the way in which trials 
 are conducted and through the watchfulness of opposing coun- 
 sel or the court, danger in making a positive misstatement, and 
 that, therefore, the profession is mainly influenced by tlie maxim 
 that honesty is the best policy, I can only reply that it strength- 
 ens my proposition; it makes more certain that the successful 
 practice of the law is not only not incompatible with integrity 
 but, on the contrary, demands it. If honesty is more profitable 
 to him than to one in other business or profession then surely 
 success as a lawyer does not imply a want of integrity. I am 
 not asserting that the practice of the law is an agency for 
 the reformation of morals. I only claim that integrity does not 
 disqualify from a successful pursuit of our profession but on 
 the contrary tends to bring about that result. A law office may 
 not be a Sunday school. The lawyer may know more of 
 Blackstone than of the Bible, but the more he knows of the 
 latter, and the more thoroughly he is inspired by its teachings, 
 the more certainly will his footsteps touch the highest rounds 
 in the ladder of professional success. 
 
 When we speak of professional ethics, we are apt to think 
 of the lawyer in his office or in the courtroom, as though there 
 was his only work of a strictly professional character, but this 
 is a mistake. The lawyer as a lawyer has a distinctive work 
 in lawmaking. The obligations of professional ethics go with 
 him into the legislative halls. To that work and those obliga- 
 tions I desire this evening to call your attention. 
 
 The conditions of life in this republic have wonderfully 
 changed during the last century. Formerly there were two 
 parties, the individual' and the government. Now there are 
 three, the individual, the corporation and the government. 
 
Between the individual and the government has come the 
 corporation which collects individual means, organizes individ- 
 ual activities and assumes by collective action to accomplish 
 more than the individuals included within it by separate action 
 can hope to achieve. In some aspects it stands half-way be- 
 tween the individual and the government, and at times antago- 
 nizes both the interests of the one and the power of the other. 
 Yet it is here, and here to stay, a powerful factor in promoting 
 both the material and intellectual advancement of the republic. 
 
 Government is the great organization, the incarnation of 
 all the forces of society for the purpose of securing protection, 
 determining rights and creating obligations. True, govern- 
 ment is not the end but a means. The Sabbath was made for 
 man, not man for the Sabbath. The individual does not live 
 for the government but the government exists for the individ- 
 ual; for the object of all human institutions, government in- 
 cluded, is to enable each individual to round out his life to the 
 full horizon of his capacities. But in order to accomplish this, 
 the purpose of its being, government must be not only supreme, 
 but also ever lifting itself up to the highest levels of usefulness. 
 Jts ideal forbids unequal distribution of benefits or classifica- 
 tion of beneficiaries. It implies equality of rights. This does 
 not forbid grants to individuals or classes, for grants, neces- 
 sarily special, may sometimes redound to the well-being of all. 
 Our government frequently granted land to railroad companies, 
 but the purpose of such grants was not donations to the com- 
 panies in order simply to fill the pockets of the stockholders 
 but the promotion of the general well-being by securing those 
 facilities of transportation which it was believed could not 
 otherwise be secured. 
 
 If we now turn to the processes by which laws finally reach 
 their places on the statute-books (and for convenience I shall 
 draw my illustrations from the Congress of the United States) 
 we notice two parties at work, the petitioner and the legislator; 
 or, as it might perhaps equally well be stated, the lobby and the 
 committee. The first thing that impresses one watching the 
 proceedings of Congress is the multitude and magnitude of the 
 mterests pressing for, or opposing, legislation. This is not 
 
strange, for we have become a mighty nation, with marvelous 
 activities and resources, the possibilities of use of which are 
 manifold and reaching in every direction. It is not suprising 
 that there is a constant pressure upon Congress for legislation 
 in furtherance of these activities and to secure the develop- 
 ment of these resources. Washington is the great lobby camp 
 of the world. I do not mean that the greatest corruption of 
 legislators is there, but that there are more interests and agents 
 of those interests seeking recognition and legislation from that, 
 the great legislative body of the nation. 
 
 Now the counsel and advocate of these interests is the 
 lawyer. Rightly and wisely is this so. His experience in the 
 courtroom fits him for presenting the case of his client in a 
 convincing and persuasive way. Advised by his client of the 
 facts, of the general character of legislation desired, he is the 
 one capable of presenting before legislature or committee the 
 needs and wishes of his client and the legislation which will 
 most effectually carry out those wishes and jeopardise other 
 interests the least. So it is that the great corporations, 
 especially those whose activities are of a quasi-public character 
 and, therefore, most liable to be affected by legislation, intrust 
 to their leading counsel less and less of the litigation in the 
 courts and more and more the presentation of their interests 
 before the departments of government and legislative bodies. As 
 the counsel of one 6f the leading railroad companies, a lawyer of 
 large experience in the trial of cases, said to me not long since, 
 " I now never go into the courtroom. My work is either that of 
 counsel or appearing for my company before the departments of 
 government or the committees of Congress and the legislatures of 
 the States through which our road runs." Of course, as counsel 
 for a corporation the lawyer is under the same ethical obliga- 
 tions as the counsel of an individual. As an advocate before 
 departments or legislative bodies or their committees he stands 
 upon the same plane as the lawyer in the courtroom. Truth- 
 fulness, integrity, candor are as essential in the one place as / 
 the other. He may not excuse himself for any delinquency in 
 these respects by the pretense that he is dealing with politicians, 
 using that term in its offensive sense, or that all who gather 
 
10 
 
 around the legislature are simply engaged in one vast grab 
 game, each striving to secure results beneficial to his client 
 irrespective of the mode or manner in which such results are 
 obtained. There will be politicians about Congress as there 
 will be pettifoggers in the courtroom, men to whom moral 
 character is an unknown term, integrity and virtue forgotten 
 habits of life, but the true lawyer who will engage in the work 
 of presenting the claims of his client, be the interest of that 
 client large or small, before any legislative body or its commits 
 tees will carry into that work the highest sense of his obliga- 
 tions to truth and candor. In that work he bears the same 
 relations to lawmaking that the lawyer in the courtroom does 
 to the judgments of the court. The law enacted by a legisla- 
 ture should be as truly the embodiment of justice as the judg- 
 ment pronounced by a court. Indeed, in one aspect it is far 
 more imperative, because the judgment of the court may affect 
 but the two litigants while the law enacted by the legislature 
 may touch the interests and materially change the condition of 
 -multitudes. The true lawyer never regards the judge as the 
 only party to a trial interested in promoting justice. While 
 lo3'ally serving his client he never forgets that justice should 
 be the aim and object of all who are engaged in the courtroom. 
 In like manner, when appearing before a legislative body, or 
 its committees, he should never act on the assumption that the 
 body before which he is appearing is the only one to consider 
 the matter of justice and the welfare of the nation. While 
 faithful to his client and fully presenting his claims and his 
 interests he should ever remember that the law which may be 
 the result of his efforts is a law reaching far and wide through 
 the nation and ought to express in its highest sense the precepts 
 of justice. As in the courtroom he will never descend to un- 
 worthy action, never indulge in intentional misrepresentation, 
 never seek by any process of corruption to influence the tri- 
 bunal, no more will he do any of these things when appearing 
 before a legislative body. He will bear himself like the true 
 knight of old, without fear and without reproach. 
 
 But the great work of the lawyer in the matter of lawmak- 
 ing is as a legislator. It is well known that legislatures are 
 
II 
 
 largely composed of lawyers. Indeed, that is often a source of 
 captious complaint. Yet no complaint alters or will alter the 
 fact. It is said that this pre-eminence in public service is 
 largely owing to the assurance and loquacity of the bar. But 
 this is a mistake. Neither assurance nor capacity for talk is 
 monopolized by the lawyers. We must look deeper for the 
 cause. It lies in their recognized fitness for the work. 
 
 It may be conceded that every profession, every class of 
 business, knows what it wants ; but a body of legislation ex- 
 pressed in separate statutes each granting that which the 
 several classes of business and the several professions desire 
 would be intolerable. The conflicts between the various acts, 
 the collisions between them and the Constitution, would dis- 
 close almost a condition of chaos. Indeed, even as it is, there 
 is too much of class legislation an3 separate acts devoted to 
 particular interests without regard to the welfare of the general 
 public. Legislation should be symmetrical as well as constitu- 
 tional. The limits of constitutional power should not be passed. 
 What lias already been placed upon the statute-books and be- 
 come part of the law of the land should be recognized. Legis- 
 lation not only conforming to the Constitution but also harmo- 
 nious with that theretofore in existence or departing from it in 
 such manner as not to disturb vested interests or provoke mis- 
 understandings is the ideal legislation. Now, the lawyer is 
 the one whose studies fit him to understand more clearly than 
 others the scope and limits of constitutional power. He is 
 more familiar with the statutes in force, and with the judicially 
 established significance of their phraseology. He is better 
 qualified than any one else to frame new legislation that will, 
 while carrying out the wishes and purposes of to-day, dovetail 
 into that which has already been enacted ; or if it changes that 
 which is in force will do so in the most satisfactory and least 
 disastrous manner. It is a popular instinct which recognizes 
 this fact, and it is by reason of that and not because of assur- 
 ance or loquacity that the lawyers now as of old constitute the 
 great majority in legislative bodies. 
 
As a lawmaker the lawyer should ever bear in mind that he 
 is counsel for the nation. True, he is placed in his position, 
 made a legislator, by one of the national parties. In an honor- 
 able sense he is a party man, believing that the principles of 
 his party carried into the active life of the government will 
 secure the best results for the people at large. On party ques- 
 tions he may be expected to be loyal to his party and to vote 
 with it. Yet even in those matters he ought not to be the mere 
 servile tool of party. Parties and party organization are a 
 necessity in a free government. They collect and express the 
 convictions of a great body of citizens, but whoever is made 
 by any party a lawmaker comes under a higher obligation to 
 the nation of which he is a chosen counsel. He is no longer a 
 mere hand to record that which others demand but under a 
 duty of unfailing fidelity to the great client whom for the time 
 being he represents. We are coming more and more to realize 
 that the independent lawmaker is, like the independent voter, 
 G, magnificent power for good in the nation. In some direc- 
 tions we are departing from the original thought of the found- 
 ers of this government. Take the Electoral College, for in- 
 stance. The idea was that a body of electors should be selected 
 who would counsel together and choose the best man for 
 President. That has disappeared from our history and now 
 the electors simply record the party's choice. They have no 
 independent action to perform. I am not here to approve or 
 encourage party disloyalty. One is elected as the representa- 
 tive of a party because he is believed to have convictions along 
 the lines of that party's thought, and it is disloyalty for him 
 to repudiate its principles. It is one thing, however, to change 
 party affiliations and support in the legislative body the party 
 which antagonized him in the election. It is another and very 
 different thing when one maintaining his allegiance to a party 
 insists upon the right of independent advice, counsel and ac- 
 tion on the various questions presented. Well has it been said, 
 " he serves his party best who serves his country best," and a 
 legislative body is far nobler and a greater blessing to the com- 
 munity when it becomes a counsel and ceases to be a mere 
 counting-house. 
 
13 
 
 But the vast volume of legislation is not partisan in its char- 
 acter. It touches rather the social, educational and business 
 interests of the nation. And here the lawmaker though free 
 from the demands of party is exposed to other temptations. 
 It is true the obligation rests on every legislator, whether he 
 be a lawyer or not, to regard the interests of the nation as for 
 the time being intrusted to his hands and to act for its inter- 
 ests. But the peculiar knowledge and fitness of the lawyer for 
 lawmaking gives him as a rule superior influence in the legisla- 
 ture and places him under, therefore, higher obligations to guard 
 those interests. Noblesse oblige. The lawmaker is exposed to 
 temptations from three sources, and they press in some respects 
 more strongly upon the lawyer than upon any other. First, 
 from persons. He may be actuated in securing legislation not 
 by any desire to benefit the nation but to subserve the interests 
 of some personal client. Let me illustrate by an actual occur- 
 rence. A client was indicted for an offense. His counsel was 
 a member of the State legislature. The punishment fixed by 
 statute was moderate. Counsel secured a postponement of the 
 trial until after the session of the legislature on the ground of 
 his personal engagements. In the legislature he introduced a 
 bill repealing the existing law and providing a larger penalty 
 for the offense. He made an earnest speech urging that a 
 severer punishment was necessary to put a stop to such offenses 
 prevalent as they were and hurtful to the community. He was 
 successful and the bill became a law. When the trial of his 
 client came on he pleaded that the repeal of the prior statute 
 without a clause continuing it in force for crimes already com- 
 mitted prevented any punishment Whether the greater punish- 
 ment prescribed by the new act was really beneficial to the State 
 as a whole is immaterial. The lawyer was recreant to his ob- 
 ligation to the State, the client whose counsel he was in the 
 making of the new law. He betrayed the client by whom he 
 was then employed in behalf of another for whom he had a 
 different employment. He was acting precisely as if he had 
 advised one individual client to a course of action beneficial to 
 another client, and this without regard to the interests of the 
 
14 
 
 client then consulting him. It is a universal obligation binding 
 upon every member of the profession to be absolutely loyal to 
 the client for whom he is at the time acting. It is as old as 
 Scripture that no man can serve two masters. Any act done 
 by a lawyer as a lawmaker to further the interests of a personal 
 client without reference to the general weal is disloyalty to the 
 State or nation for which he is then acting as counsel. 
 
 Again, locality is a temptation, and its temptations have an 
 air of plausibility and respectability which make them a con- 
 stant danger. One elected to Congress not unnaturally says 
 " I am here to represent the locality which has placed me here. 
 I am to look after its interests, and that is a primary obHgation. 
 The Representatives from other Districts will do the same, and 
 if by a combination between several we can secure that which 
 is beneficial to our Districts we have simply done our duty to 
 those Districts." But the Representative's first duty is to the 
 nation and not to the District. He is counsel for the nation 
 and although under obligations to the District those obliga- 
 tions are subordinate to that which he owes to his real client, 
 the nation. Justice Lamar, when a Senator from Mississippi, 
 was instructed by its legislature to vote in a certain way. He 
 declined to obey the instructions, declaring that his convictions 
 of what was right and best for the nation at large forbade. 
 He realized that he was a chosen counsel of the nation, and in 
 that capacity was bound to act as his judgment of the best in- 
 terests of his client, the nation, demanded. There is a large 
 field in which a Representative may rightfully consider the 
 interests of his District. His constituents have many things 
 demanding his services before the departments and in Congress, 
 attention to which involves no breach of his trust as a law- 
 maker of the nation. Cases arise in which there is a single 
 amount to be expended, a single institution to be established, 
 a single result to be obtained, and the place in which this is 
 done is immaterial. There a Representative may rightfully ex- 
 ercise all proper means to secure to his District the benefit of 
 that which is proposed. No one can truthfully say that he is 
 then acting disloyally to his present client, the nation. But a 
 
IS 
 
 very different condition exists when as legislator he strives to 
 secure for his District something which the interests of the 
 nation do not require, and especially when he and others com' 
 bine to deplete the treasury for the benefit of their Districts, 
 without regard to the general welfare. The latter is common 
 in congressional history. In the parlance of Washington " the 
 river and harbor bill is the great pork barrel." And unless 
 common rumor be sadly wrong not infrequently a pool or 
 syndicate is formed of members to carry the bill through, the 
 condition of each individual's entrance to which is an appropria- 
 tion for some government work in his District. More than 
 once have Presidents indicated their disapproval and wished it 
 within their power to veto certain appropriations included in 
 the bill, but under the necessity of approving all or none have 
 finally let the bill become a law though including unnecessary 
 and improper appropriations. Talk about professional ethics, 
 about loyalty to the higher obligations of the profession, when 
 such combinations are made by the counsel of the nation tO' 
 deplete its treasury. Not all who go into such schemes are 
 lawyers, but the fact that there are lawyers who do enter into 
 them and often engineer the schemes shows a lowering of the 
 standard of professional ethics. It is little if any better than 
 the grab game for self which so often disgraces the councilmen 
 of our municipalities. It is not to be wondered at that in many 
 States constitutional provisions have been enacted by which the 
 executive may veto part and not all of an appropriation bill, 
 thus enabling an honest executive to baffle the syndicate and cut 
 out the dishonest while saving the honest appropriation. 
 
 But after all, to-day's great temptation to the lawyer as a 
 lawmaker comes from the marvelous development of corporate 
 interests. The corporations themselves are colossal in size, al- 
 luring by the magnitude of their achievements, tempting not 
 merely by the money they possess and with which they can reward, 
 but more by the influence they can exert in favor of the individual 
 lawmaker in the furtherance of his personal advancement. No 
 one can be blind to the fact that these mighty corporations are 
 holding out most tempting inducements to the lawmaker to re- 
 gard in lawmaking their interests rather than the welfare of 
 
i6 
 
 the nation. Senators and Representatives have owed their places 
 to corporate influence, and that influence has been exerted 
 under an expectation if not an understanding that by them as 
 lawmakers the corporate interests shall be subserved. I am 
 not here to denj- the value of corporations. I realize the magni- 
 tude of the work that is possible through such combinations, 
 and I do not deny their right to be heard before any legislative 
 body in defense of their rights or in furtherance of their inter- 
 ests. But the danger lies in the fact that they are so powerful 
 and that the pressure of so much power upon the individual 
 lawmaker tempts him to forget the nation and remember the 
 corporation. And the danger is greater because it is insidious. 
 There may be no written agreement. There may be in fact no 
 agreement at all and yet when the lawmaker understands that 
 the power exists which may make for his advancement or other- 
 wise, that it will be exerted according to the pliancy with 
 which he yields to its solicitations, it lifts the corporation into 
 a position of constant danger and menace to republican insti- 
 tutions. I do not mean to insinuate that all legislators are in- 
 fluenced thereby. On the contrary, I know there are many and 
 I trust they are a large majority who stand in the full integrity 
 of their being, acting always in accordance with their judg- 
 ment of the best interests of the nation; but within the limits 
 of our profession, as elsewhere in the world, are many weak 
 characters who, while they might not deliberately do a dishon- 
 est thing or deliberately prove false to an oath or obligation, 
 yet yield to the pressure of corporate interests, deluding them- 
 selves with the idea that those interests are synonymous with 
 the interests of the nation. 
 
 I am not here to croak as a pessimist, but it is the part of 
 wisdom and courage to look a danger in the face and do what 
 can be done to avert it. And one thing which I wish to present 
 to you, young gentlemen of the graduating class, and to press 
 upon your thought, is that professional ethics reach beyond the 
 courtroom and accompany the lawyer into the legislative halls 
 where he acts as the counselor and lawmaker of the nation. 
 If you shall be honored in the days to come, as doubtless many 
 of you will, by places within the great legislative halls of the 
 
17 
 
 nation, bear in mind that loyalty to your client goes with you 
 there, that your client is the republic and not an individual or a 
 district or any corporate interests. 
 
 What a client, and how great the privilege of being its coun- 
 sel. Glance backward and from the vantage-ground of that 
 retrospect look forward and thank God for your opportunity. 
 Three centuries ago no Anglo-Saxon had a home within the 
 limits of this nation. The Indian traveled through unbroken 
 forests and over untilled prairies. Civilized life, constitutional 
 government, farms, cities, schools, churches, courts, the minis- 
 trations of science and the glory of the fine arts were all un- 
 known. To-day how changed. The comforts and riches of 
 civilized life are on every hand. No nation makes a grander 
 showing of the marvelous capacities of national usefulness. 
 None has written into national and international life in more 
 glowing words the lofty thoughts of highest ethics. Towering 
 above the nations and nearer the summit she hungers for the 
 opportunities of the future. Before her is the open door. As 
 her counsel, advise her well that her every movement in the 
 coming days shall be a step forward: Thus shall it come to 
 pass that humanity rejoicing in her benedictions will thank 
 God for her lawyers and counselors. 
 
 Young gentlemen, forty-six years ago I stood where you 
 stand, receiving from this institution its certificate of my quali- 
 fications to practice law. Narrow then were the limits of my 
 professional horizon. Law was a business out of which I might 
 hope for support and through which I might possibly obtain 
 political preferment. It was linked in my mind almost ex- 
 clusively with the thought of self. While I had, as all young 
 men have, visions of usefulness and some glimpses of the 
 grandeur and glory of the profession they were like the cold 
 and distant splendors of auroral lights. As the years have 
 passed the horizon of life has been constantly widening. Each 
 year greater and grander seem to me the work and the life of 
 the true lawyer. More and more I realize his value to the 
 community and the nation. His personal experience may be 
 expressed in the oft quoted sentence, " work hard, live well 
 and die poor ;" his life may seem to him " only this and nothing 
 
more." But he enters as does no other into the varied experi- 
 ences of human hfe. He is the helmsman of the community 
 and the pilot of the State. He is striving to incarnate into the 
 life of the republic the rule of justice, and in so doing he is 
 \v-orking as none other for its enduring glory. Science through 
 its varied efforts may transform the material condition. It 
 may fill the land with visible splendor and accumulated wealth. 
 It may perfect the highways of commerce; redeem the arid 
 lands and make the wilderness bud and blossom as the rose; 
 extract from beneath the surface its concealed wealth, and take 
 from mother earth all that it can give for the support and well- 
 being of our citizens ; but when all that is accomplished if 
 justice has not been wrought into the national life, it will de- 
 scend through luxury and dissipation to ruin. For it is written 
 by the finger of the Almighty on the everlasting tablets of the 
 universe that no nation can endure and prosper into and 
 through whose life does not run the golden thread of equal, 
 exact and universal justice. 
 
 We speak of the beauties of nature and art, the wondrous 
 charm there is in those things which appeal to us through the 
 sense of vision, but more beautiful than anything made of 
 material substances is that fabric of civilization which humanity 
 toiling beneath the dome of time has been working into our 
 social and political life. There is nothing in the universe that 
 is grander or more beautiful than the fabric as unrolled before 
 us at this, the beginning of the twentieth century. All of human 
 thought and feeling; all of human hope and aspiration; all of 
 human self-sacrifice and denial ; all of heroic effort and achieve- 
 ment have passed into its structure and color. Beautiful as 
 it may be, and there is naught, as I say, in all the physical uni- 
 verse to compare with its beauty, it will crumble into dust and 
 be forgotten as the civilization of Babylon, unless into and 
 through every part of it there runs one thread, and that the 
 thread of equal, exact and universal justice. That thread, 
 brethren of the bar, it is especially your work and mine to run. 
 Upon us, as upon no othe-r workers in our civilization, is the 
 duty cast of seeing that this single thread of justice runs 
 
19 
 
 through every part of the fabric, and God grant that it may be 
 your privilege and mine that as to that particular portion we 
 weave into the fabric it shall be so pure that nothing shall 
 tarnish its lustre and so strong that no temptation shall break 
 its fibre. 
 
LEGAL ETHICS 
 
 ADDRESS 
 
 Delivered at Commencement 
 
 . . . OF . . . 
 
 Albany Law School 
 
 MAY 3L 1905 
 
 . . . BY . . . 
 
 IRVING G. VANN 
 
 Associate Judgfe of the Court of Appeals 
 
Alfami^ Ham Bt^aai 
 
 31. 1305. 
 
 Alumni Meeting. 
 
 The annual meeting of the Alumni Association of the Albany 
 Law School was held at the Hotel Ten Eyck on Commence- 
 ment Day. 
 
 In the absence of the President, Hon. Wheeler H. Peckham, 
 who was detained by illness, the business meeting was called 
 to order at one o'clock by Lewis E. Carr, First Vice-President. 
 
 A committee was appointed to report officers for the ensuing 
 year. The Treasurer and Secretary made and filed reports. 
 The committee to select officers reported as follows : 
 
 To the Alumni Association: 
 
 Your Committee on Nominations respectfully reports that in 
 view of the marked ability and judicial integrity of our dis- 
 tinguished alumnus, United States Supreme Court Justice 
 David J. Brewer, of the Class of '58, the office of Honorary 
 President of the Association be again tendered to him, and we 
 recommend that he be elected thereto to succeed himself. 
 
 We further recommend the following officers for the en- 
 suing year : 
 
 President Andrew S. Draper. 
 
 First Vice-President D-Cady Herrick. 
 
 Second Vice-President J. Franklin Fort. 
 
 Third Vice-President John M. Kellogg. 
 
 Fourth Vice-President Milton A. Fowler. 
 
 Fifth Vice-President Thomas B. Cotter. 
 
Executive Committee. 
 
 Samuel S. Hatt, Richard C. S. Drummond, 
 
 William S. Bennett, Frederick E. W. Darrow, 
 
 Leopold Minkin. 
 
 Secretary William R. Whitfield. 
 
 Treasurer Melvin T. Bender. 
 
 Dated May 31st, 1905. 
 
 W. E. WOOLLARD, 
 GEORGE V. S. WILLIAM, 
 R. C. COLEMAN, 
 J. MURRAY DOWNS, 
 A. D. DENNISON, 
 
 Committee. 
 
 The report of the committee was adopted and the Secretary, 
 on motion, cast one ballot for the names so reported. 
 
 The business meeting then adjourned. 
 
 The annual luncheon of the Association was given at the 
 Ten Eyck, Lewis E. Carr presiding. In addition to an address 
 by Mr. Carr, Andrew S." Draper, Joseph A. Lawson and 
 George E. Griffin, president of the graduating class, made 
 brief addresses. 
 
 Commencement exercises were held in the evening, and the 
 following members of the graduating class received the degree 
 of L. L. B. : 
 
 Adams, Harold James Donnan, George W. 
 
 Austin, Lewis Merton Fenster, Joseph George 
 
 Baker, Clarence Pritchard Flinn, Daniel S. 
 
 Bascom, Wyman S. Gallup, Earl Howard 
 
 Bootey, Edward R. Griffin, George Edward 
 
 Benton, Henry Wakeley Hatch, James A. 
 
 Bodman, Charles S., Jr. Healey, William John 
 
 CoUopy, John William, Jr. Higgs, Charles Arthur 
 
 Dawes, Claude Thomas Jamieson, Edward Cash 
 
 De Santis, Anthony S. Jones, Leland C. 
 
Kerr, Harry David Smith, Frank Marks 
 Lawrence, George Frederick Smith, John Taylor 
 
 Lynch, Martin Frank Stetson, Frederic T. 
 
 Morse, George Le Grand Sweeting, Schuyler K. 
 
 Murphy, Sherman Arnold Taylor, Marsh Newton 
 
 Norton, W. Ward Throop, Walter S. 
 
 Pratt, W. Fred Tillott, Thomas R., Jr. 
 
 Schenck, Gilbert V. E. Toohey, Henry 
 
 Shoecraft, J. Donald Van Buren, Alfred D. 
 
 Slade, John A. Vanderlyn, Joseph H. 
 
 Sinclair, Claire Van Home, Orange Lathrop 
 
 Sleicher, George Ingalls Woods, Thomas 
 
 Smith, Albert Edward Zimmer, William B. 
 
 The following having been in attendance one year, preceded 
 by one or two years of study in an office, received diplomas : 
 
 Alverson, Claude B. Flint, Orin Q. 
 
 Conger, Seward A. Harrington, Denis J. 
 
 Cook, Andrew J. O'Connor, A. Lindsay 
 
 Coughlin, John B. Shufeldt, Augustus 
 
 Frazer, Mclntyre Sullivan, Benjamin 
 
 Judge Irving G. Vann delivered the address to the graduating 
 class, the address being one of the lectures in the Hubbard 
 course on Legal Ethics. Judge Vann's address follows : 
 
 Contingent Fees. 
 
 Mr. Chancellor, Ladies and Gentlemen and Gentle- 
 men OF the Graduating Class. — In preparing to address 
 the young men who graduate to-night, I tried to select a prac- 
 tical subject, even if it should prove a dull one. Instead of 
 giving general advice in relation to professional conduct, I 
 have thrown together some thoughts, the best at my command, 
 upon a specific subject, which impresses me as of the utmost 
 importance to the generation of lawyers who have the future 
 of the legal profession in their keeping. It relates to traffic by 
 lawyers in lawsuits, with especial reference to the effect of the 
 modification, which amounts to a substantial repeal in certain 
 cases, of the statutes against champerty. I ask each earnest 
 
young man before me, as he stands upon the threshold of his 
 professional life, to erect a standard of action for himself in 
 relation to taking claims to prosecute upon a contingent fee 
 and to the abuse grossly known as " ambulance chasing," which 
 has sprung from that practice. As of possible aid to your 
 judgment in making up your minds, I submit the following 
 views for your consideration. 
 
 Propriety of professional conduct does not spring from 
 statutes, or from judicial decisions, although it may be aided 
 or injured by either, but from that high sense of honor which 
 has come down to us from the ages, as shown by the lives 
 and precepts of noted lawyers for nearly a thousand years. 
 This has varied as each generation presented new questions 
 to be solved. The standard has fluctuated from time to time, 
 somewhat through sympathy with the general moral standards 
 of the age, although the careful reader of history will note 
 that it has never sunk so low in the law as in many other walks 
 of life. 
 
 Each generation has struggled with its own problems and 
 the duty of ours, as it seems to me, is to resist to the utmost 
 the growing tendency to make money the standard of success 
 in the practice of law. Real success at the bar is not measured 
 by money. While it may include money, it must embrace 
 something more, or it is not success in the true professional 
 sense. Unless the practice of law promotes the administration 
 of justice, the bar should be abolished and the license of every 
 lawyer revoked by the State, for the community should not be 
 put to the expense of maintaining an institution which it does 
 not need. A lawyer should be a minister of justice, in a large 
 way if he can, but if not, then according to the ability which 
 nature has given him and the opportunity which circumstances 
 afford. His object should be to see that so far as in him lies, 
 justice is done. This does not mean that he should abandon 
 his client, or help the other side, if he becomes convinced 
 that it is right and his own side wrong, for he may not sit 
 in judgment on his client's cause and decide it. That is not 
 his function, for every one has the right to have his claim 
 passed upon by the courts and decided according to law. 
 After a lawyer has accepted a retainer, it is his duty to uphold 
 
his client's cause upon its merits and to place that duty far 
 above any hope of gain to himself. 
 
 The law is a learned profession, not a trade, and its primary 
 object is not to make money, but to aid in the administration 
 of justice. While a lawyer should make a living out of his 
 profession, and a good living, the aim of his life should not 
 be the accumulation of wealth. If he wishes to heap together 
 great possessions, he should choose some other calling. If the 
 ambition of one's life is to become rich, it is not for him to 
 practice law, any more than to preach the gospel. The simple 
 practice of the law does not lead to wealth, although it should 
 create a competency. The great lawyers of the past, as 
 Henry Clay once said, worked hard, lived well and died poor. 
 Unless you are willing to work for something besides money, 
 you are not fit to practice law. Wealth is not an evil. A 
 merchant, manufacturer or banker may with propriety strive 
 mightilj' to become rich, for his vocation is a business, not a 
 profession. This, however, is not true of the lawyer. He does 
 not accumulate through the labor of others, or by hiring a 
 multitude of men to work for him, but by his learning and 
 experience he protects the property, liberty and lives of his 
 fellow citizens, and if the hope of accumulation alone leads 
 him to the bar, he degrades a noble profession from the outset 
 and will never meet with great success. As Governor Tilden, 
 himself a great lawyer, once said : " If the bar is to become 
 merely a method of making money, making it in the most con- 
 venient way, but making it at all hazards, then the bar is 
 degraded." 
 
 In all highly civilized countries the position of barrister, 
 advocate or lawyer has been one of importance and dignity, 
 so long as the practice of law was regarded as a profession 
 and not a trade, but it has invariably fallen from high influence 
 into disrepute whenever it has been turned into a money-making 
 pursuit. 
 
 Gibbon, in his great history, speaking of the decline of the 
 profession in Rome, says : " The noble art, which had once 
 been preserved as the sacred inheritance of the patricians, was 
 fallen into the hands of freedmen and plebeians, who, with 
 cunning, rather than skill, exercised a sordid and pernicious 
 
trade. Careless of fame and justice, they are described, for the 
 most part, as ignorant and rapacious guides, who conduct their 
 cUents through a maze of expense, of delay and of disappoint- 
 ments from whence, after a tedious series of years, they were 
 at length dismissed when their patience and fortune were 
 almost exhausted." 
 
 What happened in Rome from practicing law simply to 
 make money may happen to us, for human nature has not 
 changed by the lapse of twenty centuries, and, as the lawyers 
 who wrote and inherited the great system of the civil law fell 
 into decadence from corruption and the love of money, so may 
 our noble profession decline from the same causes. If there 
 is a tendency downward in any part of the profession and 
 that tendency is growing so there is danger that it may become 
 general and result in widespread demoralization, it is the duty 
 of those who love the practice of the law to expose and correct 
 it. If wrong exists in our midst, it must be set right by the bar 
 itself, for reformation, to be effective, must come from within. 
 
 The commercial spirit, which, to an alarming extent, has 
 invaded the bar, is the cause of many abuses, and among the 
 most serious is the setting on of lawsuits for the simple pur- 
 pose of making money. Litigation should never be encouraged. 
 The ideal lawyer is always a peacemaker, and counsel who stir 
 up lawsuits are a curse to the profession as well as to the body 
 politic. 
 
 While this evil is not new to the law, it has of late years 
 grown to dangerous proportions. Champerty and maintenance 
 are not words of recent origin, but are almost as old as the 
 common law itself. Champerty is an abridgment of campum 
 partire, which mean to divide the land. In remote times when 
 nearly all wealth was in land almost all lawsuits were con- 
 nected with land, and lawyers made their living largely through 
 their knowledge of the law relating to real estate. The 
 temptation frequently arose for an attorney to make use of 
 his knowledge, experience and skill by inducing persons to 
 commence or defend actions of ejectment upon his promise to 
 prosecute or defend at his own expense, provided, in case of 
 success, he should have part of the land involved. This agree- 
 ment with a plaintiff in a suit to recover the possession of land 
 
in consideration of a portion thereof was known as champerty. 
 Although confined to land at first, the abuse finally extended to 
 every subject of litigation. The action was brought and prose- 
 cuted by the lawyer at his own expense and the proceeds, 
 whether land, chattels or money, were divided between the 
 lawyer and client upon the basis of an agreement made in 
 advance. Attorneys agreed with their clients to thus collect a 
 particular claim, or claims in general, and to receive a certain 
 proportion of the sum collected as compensation for their ser- 
 vices. This grew to be such an abuse that it was made an 
 indictable oflrense, whether, in the first instance, by some stat- 
 ute now lost to history, or by the inherent growth of the com- 
 mon law, which has always developed a remedy to meet an 
 evil, is not known. Many statutes were passed upon the sub- 
 ject, but all, as it is supposed, in affirmance of the common 
 law and expanding it in some respects as the evil grew. A 
 champertous bargain was void because it was an agreement to 
 do something against public policy, and the making of the 
 bargain was an indictable offense. The old books are full of 
 cases where such bargains were adjudged void and the parties 
 thereto punished as offenders against public justice. Cham- 
 perty extended to the purchase by an attorney of the subject 
 matter of an action, or of pretended rights or titles and to 
 making loans or advancing money on the security of a claim 
 intrusted to him for collection. Until very lately it was the 
 policy of the law to prevent, through direction or indirection, 
 " the traffic of merchandising in quarrels and of huckstering 
 in litigious discords." " The purchase of a lawsuit," as Chan- 
 cellor Kent once said, " by an attorney is champerty in its most 
 odious form, and it ought to be condemned on principles of 
 public policy. It would lead to fraud, oppression and corrup- 
 tion. As a sworn minister of the courts of justice, the attorney 
 ought not to be permitted to avail himself of the knowledge 
 he acquires in his professional character to speculate in law- 
 suits. The precedent would tend to corrupt the profession and 
 produce lasting mischief to the community." 
 
 Maintenance, a lesser evil of the same general tendency as 
 champerty, is the intermeddling of a stranger in a suit in which 
 he has no interest by assisting one party to continue a litigation 
 
10 
 
 against another without lawful authority. This also was made 
 a criminal offense, punishable by fine and imprisonment. It 
 is not a widespread evil in modern times, and I will give it no 
 further notice, for it is to agreements which formerly were 
 champertous, but now, to a great extent, are not, that I wish to 
 call your attention. 
 
 While statutes in most of the States still prohibit attorneys 
 from directly purchasing claims, or advancing money thereon 
 with the view of bringing actions to collect them, the law 
 against champertous agreements has been much relaxed and 
 evil has resulted from the change. The object of the Legisla- 
 ture was judicious, but in attempting to prevent one evil it 
 created another, and, it may be, a greater. So many unscrupu- 
 lous clients defrauded their attorneys by making dis- 
 honest settlements and after getting the proceeds into their 
 own hands, refusing to pay for the services by which they 
 were obtained, that the Legislature authorized attorneys to 
 agree with their clients as to their compensation for services 
 and gave them a lien upon the subject of the action, which 
 attaches to the verdict, decision or judgment and is not affected 
 by any settlement made by the parties. 
 
 The statute in this State, which is known as section 66 of 
 the Code of Civil Procedure, although passed for a good pur- 
 pose, opened Pandora's box and let out the evils which the 
 ancient law against champerty was designed to prevent. It was 
 intended to help a poor man, with an honest claim, who could 
 not afford to pay counsel for commencing or conducting a suit 
 to collect it. It enabled him to employ an attorney by giving 
 him an interest, by way of lien, in the subject of the contro- 
 versy, so that in case of success his compensation would be 
 secure. A lawyer might work for years as the case passed and 
 repassed through the courts without getting any pay, but, if he 
 finally succeeded, his lien protected him and he could receive 
 compensation out of the proceeds of the litigation. The client 
 could not deprive him of it by collusion or fraud, for the lien 
 covered the subject of the action, which, to the extent of the 
 lien, virtually became the property of the lawyer. An action 
 of this kind thus becomes, in part, the action of the attorney 
 who carries it on, for without success he receives nothing, but 
 
II 
 
 with success he is entitled to collect his proportion. He may 
 do a thousand dollars' worth of work with no pay, or he may 
 get two thousand dollars for services worth but half that 
 amount. In all these cases the agreement is that, unless he 
 succeeds, he is to charge nothing for his services, and frequently 
 it is also a part of the arrangement that he is to advance the 
 disbursements and thus to carry on the litigation at his own 
 expense. Under these circumstances the temptation to suc- 
 ceed through unscrupulous practices is distinctly presented. 
 Anything which appeals to the weakness of human nature and 
 tempts it to go astray is an evil. None of us may profess 
 superior virtue until we know how we would act under like 
 circumstances, but a direct encouragement to do wrong, held 
 out by the law itself, must inevitably result in wrong doing 
 to a greater or less extent. The law now enables a lawyer 
 to make his client's cause his own in the pecuniary result and 
 thus tempts him to succeed by right methods if he can, and by 
 wrong methods if he must. It leads him to look upon success, 
 whether right or wrong, as necessary, for otherwise all his 
 work will bring him nothing, and all the money he has paid 
 out is a dead loss. There are many cases in our reports where 
 success, according to the first story told by the client, became 
 impossible by the decision of the courts upon appeal, yet on 
 another trial the client, by telling a different story to fit that 
 decision, finally succeeded through a complacent jury, misled 
 by sympathy for a poor man, or prejudice against a rich cor- 
 poration. Did some one so talk with the client as to present 
 the temptation to stretch his conscience up to the point required 
 by the circumstances? Who suggested the missing link, the 
 necessary lie? Who permitted the client to reverse his story 
 and pave the way by a plausible explanation? Who was 
 morally, if not legally, guilty of subornation of perjury? 
 Who made it possible for the client to change the story and 
 yet preserve the semblance of truth? Who asked the jury to 
 believe the falsehood and exerted his talents to persuade them 
 to accept it as the truth? Where does the responsibility rest, 
 wholly or in part, for perverting justice and turning the court 
 into an agency of wrong? The client had the verdict, the 
 lawyer had his part thereof secured, but where were honesty, 
 
12 
 
 right and justice? What is to become of a profession which 
 tolerates such conduct on the part of any considerable number 
 of its members ? How long can it retain the confidence of the 
 community if it permits this menace to society to go on 
 unchecked? While an attorney is not the keeper of the con- 
 science of his client, he is the keeper of his own conscience 
 and responsible for his own acts in conscious violation of law 
 and justice. He has no more right to encourage his client to 
 deceive than he has to deceive himself. 
 
 It may be that in some of these cases the clients were honest 
 in telling both stories, but in the nature of things such instances 
 are rare. The moral presumption is against such a witness, 
 although the courts feel compelled to submit his credibility 
 to the jury, who, according to our law, are the final judges as 
 to questions of fact. 
 
 More frequently the defect in the evidence is supplied by a 
 new witness, who is called for the first time upon the second 
 trial, granted solely on account of such defect. In a majority of 
 cases, according to the judgment of all impartial observers, the 
 new witness tells a perjured and manufactured story. Occa- 
 sionally he may not, but generally, I fear, he does, and, not- 
 withstanding the course taken by trial courts in cautioning 
 juries to scrutinize with suspicion the account of the late- 
 comer, they are apt to find as if they believed it to be true, 
 although what they really find is an equitable verdict, according 
 to their notions of equity. Ask any reputable and disinterested 
 member of the bar who heard the trial and he will tell you, and 
 his experience enables him to judge with accuracy, that in all 
 probability the witness was not telling the truth. Who pro- 
 cured the witness? Presumptively, the client, but why did he 
 not get him in the first instance? Who told him what was 
 necessary? Who told him that he must fail, unless he found 
 such a witness? Often the client is an infant, or, if an adult, 
 too ignorant to do the work for himself. Who did it for him, 
 or caused it to be done ? Was the interest of the client the only 
 interest to be promoted by the perjury? Who was tempted to 
 do this evil thing, and who knew how it could be done ? Who 
 was the partner of the client and shared in the plunder? 
 
 These are suggestive questions, and in some instances the 
 
13 
 
 imputation they convey may be unjust, but I am speaking of 
 general, not of particular cases. Some things are morally cer- 
 tain, yet frequently they cannot be proved, and bribery and 
 perjury are among them. I admit that a heavy responsibility 
 rests upon the client, but in these cases the lawyer, to the extent 
 of his interest, is his own client, and there lies the root of the 
 evil. The temptation should be held out to neither lawyer nor 
 cHent, for its tendency is to demoralize both. Frequently the 
 work of fabricating evidence is not done by the attorney, as 
 he keeps in his employ a skilful man to look up evidence, who 
 knows what is needed and earns his salary by getting it. Is 
 responsibility for the wrong evaded in this way? Is it not 
 rather increased by bringing another man into the corrupt 
 circle? Here, also, sweeping statements may be unjust, for 
 some of the persons employed as process servers and to look 
 up evidence are honest and upright men, who would scorn 
 to bribe or suborn, but I speak of the tendency and the general 
 result. 
 
 It is the duty of lawyers to avoid even the appearance of 
 these evils and to so conduct themselves that they are free 
 from suspicion. In no other way can they hold up the reputa- 
 tion of the bar and relieve it from the aspersions brought upon 
 it by the conduct of unworthy members. An upright lawyer 
 never says of an evil thing : " Others do it and I must." The 
 moral tone of the profession should be such as to make a lawyer 
 who indulges in these disgraceful practices feel that he is 
 shunned and despised by his fellows as a liar and a scoundrel. 
 All over the State of New York, and, as I am informed, in 
 other States also, the bar is suffering to-day in the mind of the 
 public on account of the general belief that in actions involving 
 personal injuries the practice of bribery and perjury is com- 
 mon. This may be unjust, but it is a fact and one which you 
 young men will have to deal with for the protection of your- 
 selves and of the noble profession to which you are now called. 
 What is the best way to deal with it? How can the demoral- 
 ization of the bar, already widespread, as many believe, be 
 arrested and corrected ? What course is better than to remove 
 the temptation which a statute of the State now holds forth to 
 lawyers of easy conscience? 
 
14 
 
 There are other evils, which, in my judgment, are distinctly 
 traceable to the statute which gives attorneys a direct pecuniary 
 interest in the result of the action. Who has not heard of 
 ambulance chasers? If a definition is necessary, let me quote 
 from the language used by the President of the Medical Society 
 of the State of New York in his late annual address to the 
 members of that representative body of learned men : " There 
 are lawyers," he said, " known to the bar as ambulance chasers, 
 who have runners constantly on the watch for accident cases 
 of which they learn through the daily papers. These unscrup- 
 ulous members of the bar, with the aid of equally unscrupulous 
 members of the medical profession, rob corporations of thou- 
 sands of dollars every year. I tannot say that I see any differ- 
 ence in the culpability, or that the doctor is more blameworthy 
 than his principal, the lawyer who brings the suit, which is 
 often built up out of manufactured evidence. They are a pair 
 of precious rascals. I seek to excuse neither. It is the system, 
 however, which renders their partnership possible." While I 
 feel at liberty to speak plainly of my own profession, I do not 
 thus speak of the medical profession, but simply quote the 
 words of their representative. Within a few months the fol- 
 lowing item was widely published in the public press : " A priest 
 has handed $550 to the manager of a New York city railroad 
 company, saying, as he did so : ' This money was obtained from 
 you in a damage suit by one of my parishioners, who has con- 
 fessed to me that a lawyer coached her and induced her to 
 perjure herself. Her conscience troubled her, she confessed 
 to me and asked me to return the money.' " 
 
 In one of the great cities of the country, not in this State, 
 however, I am glad to say, there is an organized business asso- 
 ciation, with stockholders and capital paid in, the sole business 
 of which is to procure and prosecute negligence cases. The 
 company has its regular counsel, a choice corps of ambulance 
 chasers, procurers of witnesses and the like. It advances the 
 necessary expenses and takes cases for a proportionate part of 
 the recovery. 
 
 I recently heard of an instance where a brother and sister 
 were killed in an accident at a railway crossing, and within 
 less than two hours after the mutilated bodies had been carried 
 
15 
 
 home six different lawyers asked leave to sue the company in 
 consideration of one-half the sum that might be recovered. 
 
 A peculiar case was recently brought to my attention. An 
 accident happened which resulted in death, and a lawyer, who 
 had no acquaintance with the family, sent flowers on the day 
 of the funeral, with his professional card attached. Happily, 
 when he called a few days later, he was turned from the door. 
 
 It is the belief of all trial judges with whom I have con- 
 versed upon the subject, and it is my own belief, founded on 
 many years of observation as a trial judge, that ambulance 
 chasing leads to manufactured evidence, with the bribery and 
 perjury, without which evidence cannot be fabricated. 
 
 Did any one ever hear of ambulance chasers before it was 
 made safe by law for attorneys to take cases on speculation ? 
 Whoever heard, until late years, of law offices organized to 
 solicit business, with a corps of retainers expected to distance 
 the doctor and the coroner, printed conti-act in hand ready for 
 prompt execution by simply filling in names and dates? Can 
 you imagine the great lawyers of the past, the fathers of the 
 profession, who cherished and protected it during their lives 
 and transmitted it to us as one of the most exalted callings, 
 ever doing or countenancing such actions? Can you think of 
 Chief Justice Marshall, Alexander Hamilton, Chancellor Kent, 
 Daniel Webster or any other revered member of the bar even 
 acting as counsel upon the trial of a case prosecuted by an 
 attorney under such circumstances? The mere suggestion of 
 it would have left them speechless with indignation. Do not, 
 I beg of you, think for a moment that these strictures apply 
 to lawyers generally, for the unworthy members are Hmited as 
 yet, but the number is growing, and it is the duty of every one 
 who loves the profession to do what he can to check the evil. 
 
 While the solicitation of business is not forbidden by law, 
 it is forbidden by the precedents and traditions of the pro- 
 fession. The methods of conducting a grocery cannot be 
 adopted by lawyers without descending to the level of grocery 
 keepers. Lawyers in the past have been looked to as the 
 natural leaders of society. They should always be qualified for 
 this high distinction by attainments, conduct and character. 
 They are sworn officers of the courts, and the judges cannot 
 
i6 
 
 administer justice without their aid. They assist the court and 
 jury by doing what the client, for want of learning and experi- 
 ence, cannot do for himself. They are the guardians of right 
 and the enemies of wrong. They have peculiar powers and 
 privileges affecting the public welfare, and their duties are of 
 corresponding importance. It is essential to the dignity and 
 usefulness of the profession that they should have the confi- 
 dence of the courts and should be regarded with respect by the 
 public at large. They cannot have that respect, unless they 
 deserve it by honorable and high-minded conduct. How can 
 they secure it if they walk the streets begging for business, or 
 send their agents into sick rooms and hospitals to solicit the 
 right to sue for an injury before the blood has stopped running 
 from the wounds of the victim? 
 
 For time out of mind it has been the duty of a lawyer, in 
 a proper case and when ordered by the court, to prosecute or 
 defend a civil action for a person, who, through poverty, is 
 unable to pay for legal services. When assigned by the court 
 he is required by statute to conduct the prosecution or defense 
 without compensation, and the person thus suing or defending 
 in forma pauperis need pay no fee to any officer, lawyer, 
 sheriff, clerk or constable. The earliest act upon the subject 
 was passed in 1494, only two years after the discovery of 
 America, and even then it was but a confirmation of the com- 
 mon law previously existing. So, lawyers upon the assignment 
 of the court constantly defend poor persons who are charged 
 with crime, without reward or the hope of reward, except 
 the consciousness of doing their duty as members of the pro- 
 fession. They do it ably, willingly and zealously in the interest 
 of humanity and in honor of the bar. Such unselfish conduct 
 is a badge of honor, and is recognized as such by the best ele- 
 ments of society. Contrast the result of these statutory duties 
 with that of the statutory privilege upon which I am dwelling. 
 The tendency of the one is to strengthen and of the other to 
 weaken the profession, not only in the estimation of good men 
 generally, but in the estimation of lawyers themselves. 
 
 I think these evils, as well as others which I have no time 
 to mention, are largely traceable to the statute which I criti- 
 cise so severely. That statute makes them possible, for the 
 
17 
 
 attorney virtually purchases a portion of the claim and agrees 
 to pay for it in professional services. Contingent fees have 
 always been regarded as dangerous in their tendency, but this 
 practice is more dangerous, as the attorney virtually becomes 
 a part owner of the cause of action he is prosecuting. The 
 lien given by the statute is in practical effect the ownership of 
 a part of the cause of action and is so thoroughly protected that 
 no settlement can defeat it. While personal actions, such as 
 those founded on negligence, are not assignable generally, they 
 are thus made assignable, in part, to the very persons, who, 
 of all others, should be prohibited from acquiring an interest 
 therein. The plan to divide the recovery usually agreed upon 
 in negligence actions, which are largely conducted under these 
 speculative arrangements, ranges from one-fourth to one-half 
 of the amount collected, in addition to the taxable costs. This 
 frequently results in extravagant compensation. Verdicts for 
 $5,000 in such actions are common, while judgments for twice 
 that amount are not unusual. Very much larger sums are occa- 
 sionally recovered and from one-fourth to one-half of the 
 recovery, in addition to the costs, frequently gives compensa- 
 tion far beyond the value of the services rendered, even when 
 the risk of loss by failure to secure a verdict is taken into 
 consideration, as in justice it should be. 
 
 The element of speculation enters largely into business of 
 this kind, and history shows that speculators, for time out of 
 mind, have not been over scrupulous in their methods. Is it 
 not sound legislative policy to protect the legal profession and 
 the community in general by removing the temptation now con- 
 stantly held out by the law itself? Is it not better that there 
 should be some cases of hardship and injustice, occasional 
 instances when lawyers are defrauded by their clients, than to 
 undermine and drag down a great and useful profession? It 
 must be admitted that there were evils which this legislation 
 removed, as it was a serious wrong for a dishonest cUent to 
 take all the fruits of the lawyer's hard work and pay him 
 nothing for his services. This was not unusual when there 
 was no statute to protect the attorney by giving him a lien upon 
 the cause of action. Great as this evil was, however, it did 
 not tend to lower the tone of the profession or to demoralize 
 
i8 
 
 members of the bar. If evils are to be balanced, as sometimes 
 they must be, the adjustment should be so made as to protect 
 both the lawyer and the layman, with as little injury to either 
 as is possible ; but, above all other considerations, regard should 
 be had to the standing and dignity of the great profession of 
 the law. At every hazard of mere pecuniary loss to the lawyer, 
 his honor must be preserved, and his professional reputation 
 kept' free from stain. He cannot be useful to society, unless 
 society has confidence in his integrity. No one can suffer 
 more from the imputation of dishonesty than the practicing 
 lawyer. 
 
 Contrast the efifect of this legislation with that resulting 
 from the reverse policy pursued by Congress with reference 
 to the pension claims of veterans in the Civil War. The 
 Revised Statutes of the United States provide that no attorney 
 shall demand or receive any other compensation for his services 
 in prosecuting a claim for pension, or for bounty land, than 
 such as the Commissioner of Pensions shall direct to be paid 
 to him, not exceeding the sum of twenty-five dollars. The 
 pensioner having been thus carefully protected, equal care is 
 taken to protect the attorney, for it is provided that the dis- 
 bursing officer of the government shall deduct the fee going to 
 the attorney from the amount of the pension in his hands before 
 paying it over. Any violation of these provisions by attorneys 
 is punishable by a fine of not more than $5,000, or by imprison- 
 ment, or by both, in the discretion of the court. Any pledge, 
 mortgage or transfer of a pension, or of a claim for a pension, 
 or of any interest in a pension is declared void, and the making 
 of the contract therefor is made a misdemeanor. Pensioners 
 thus get their claims substantially in full, because they cannot 
 sell, pledge or transfer them. Pension attorneys and agents 
 receive compensation, which, it must be admitted, is small, but 
 they are willing to accept it, and there is no reluctance on the 
 part of competent attorneys and agents to prosecute claims for 
 the compensation allowed by the laws of Congress. Imagine 
 for one moment, what would have become of the poor pen- 
 sioners, the brave old soldiers, their widows and children, if the 
 federal law threw the subject of compensation for prosecuting 
 their claims open to agreement and protected the agreement 
 
19 
 
 by lien, as our State laws open the subject of compensation for 
 legal services in all cases that can be brought in the State 
 courts. Is there any doubt that many of the pensions which 
 now relieve the veterans of our wars and their families would 
 be owned by pension attorneys, agents and speculators ? 
 
 The question that I present to you, gentlemen of the graduat- 
 ing class, as the guardians of the honor of our profession in the 
 future, is : " What is best for the people generally? " And as 
 incidental thereto and really a part of it : " What course is best 
 to secure a high-minded and honorable bar ? " 
 
 It may be that the statute should be modified rather than 
 repealed. All will doubtless agree that every lawyer should 
 have a lien upon the papers in the case and upon the subject 
 of the action to the amount of his taxable costs, without any 
 agreement upon the subject, except such as is implied from 
 the retainer, or contract of employment. As the amount of the 
 taxable costs is fixed by law, the attorney is entitled to that 
 amount in any event and no abuse can well arise from such a 
 provision. But the taxable costs are seldom adequate to com- 
 pensate for the labor involved in protracted litigation, and 
 some further provision is desirable, provided it can be made 
 with safety. 
 
 The next step suggested is that the contract for increased 
 compensation, in addition to the taxable costs, should be in 
 writing and filed with the county clerk before it becomes a lien 
 upon the cause of action. Publicity would appeal to the law- 
 yer's pride and would affect his standing and thus would 
 be some protection against unreasonable or extortionate 
 agreements. 
 
 The last suggestion is that no part of the proceeds of the 
 litigation, whether arising from judgment collected or settle- 
 ment made, aside from the taxable costs, should be paid either 
 to the attorney or client until the amount of compensation for 
 services has been approved by the court, upon summary appH- 
 cation. The amount should be paid into court to await such 
 approval, which should not rest wholly on the agreement of 
 the attorney and client, whether made in advance or at the time 
 of the application, but should also depend upon the amount of 
 work done and the risk of getting any pay whatever, owing 
 
20 
 
 to the uncertainty attending all litigation. In other words, the 
 court should be empowered and required to fix an amount not 
 exceeding a certain sum or proportion that would be just 
 and equitable to both parties under all the circumstances. 
 
 I make these suggestions with diffidence, for I appreciate 
 the difficulties and dangers which surround the subject. I feel 
 that my strictures are stronger than the remedies I am able to 
 suggest, unless it is the radical remedy to repeal the statute 
 altogether. The client needs protection, for the cause of action 
 is his. The attorney needs protection, so that he may receive 
 fair and just remuneration for his services, skill and learning, 
 as well as the risk that he necessarily runs. The profession 
 needs protection, so that its members may not be tempted to 
 sacrifice dignity and honor for the sake of gain. If a statute 
 could be so drawn as to accomplish these three needs, it would 
 be a blessing to the community and to the bar, whose real inter- 
 ests are identical. While no statute can make a man honest, 
 it may remove some of the temptations to dishonesty. 
 
 Gentlemen of the Graduating Class : Even if prepared with 
 all the care and wisdom possible, no statute can take the place 
 of a high standard of action on the part of the members of the 
 bar themselves. That has been the protection of the profession 
 during the honorable years of the past, and it must be its main 
 protection in the years to come. Integrity and courage have 
 been the watchwords of the great lawyers of all generations. 
 Independence of thought and action, under the law and accord- 
 ing to law, for time out of mind, has been the child of the bar, 
 fathered by its noble members and guarded at every hazard of 
 personal loss. Resistance to despotism has not been confined to 
 the usurpations of the executive, but has extended to the 
 tyranny of courts and judges; to the overwhelming power of 
 public opinion, hastily formed under the influence of great 
 excitement and a thoughtless press; to the arbitrary conduct 
 of trusts, of labor unions and to oppression in any form and 
 from every source. The men who have cherished, protected 
 and defended liberty; who have resisted public injustice and 
 by calm argument and courageous action have arrested tumult 
 and given time for sober thought, have been lawyers to a great 
 extent. The profession, with its grand history, will deal with 
 
21 
 
 the emergencies of the present as it has in the past, and, as I 
 confidently believe, will stamp out the evils to which I have 
 made allusion. It is in the hope that you, young men, who 
 now enter upon the practice of the law, may be led to reflect 
 upon the evils, to avoid the dangers and to aid in applying a 
 remedy for the abuses mentioned that I have ventured to make 
 these suggestions. 
 
 I wish you, gentlemen, one and all, an abundance of success, 
 in its highest sense, in the noble profession to which we are all 
 glad to bid you welcome. 
 
LEGAL ETHICS 
 
 The Duty of the Hour 
 
 LECTURE 
 
 DEHVERED BEFORE THE STUDENTS OF LAW 
 DEPARTMENT OF UNION UNIVERSITY 
 
 By 
 
 William W* Goodrich 
 
 FORMER PRESIDING JUSTICE 
 
 of the 
 
 APPELLATE DIVISION, SUPREME COURT, 
 
 SECOND DEPARTMENT 
 
 J905 
 
THE DUTY OF THE HOUR. 
 
 Lecture Delivered in Hubbard Course 
 ON Legal Ethics. 
 
 The munificence of one of our Alumni has enabled the Faculty 
 of the Albany Law School to invite men who have been in touch 
 with the affairs of the profession and of the world, to address to 
 the senior class some words of kindly counsel upon the ethics 
 of the profession ; counsel, gathered not only from the experience 
 of the lecturer in the practice of his profession, but also in the 
 larger survey of the things that have been done and the things 
 that remain to do. 
 
 I have had grave doubts whether I could add anything along 
 the lines suggested in the addresses of the Founder of this course 
 of lectures and of the other eminent lawyers who have spoken, 
 and, therefore, I have concluded to consider another duty devolv- 
 ing upon you as members of the coming bar. I shall not dwell 
 upon the need of industry and application, nor of your single- 
 minded duty to protect the interests of your client. Such words 
 of counsel you have heard, and will hear from others. It is my 
 purpose to impress upon you the great deeds heretofore done by 
 your brothers in the cause of American freedom and to urge upon 
 you to follow in their footsteps, so far as opportunity and your 
 own natures give you the chance. Perhaps this may be done 
 best by suggesting the wide influence which your profession will 
 confer upon you, on living questions of public life and develop- 
 ment, in the hope that your ambition may be roused to do the 
 duty imposed upon every American lawyer. As Professor 
 Burgess has said, " Jurisprudence has its base in ethics and must 
 develop with the upholding of the common consciousness of right 
 and wrong." 
 
 No student can read the history of England and the United 
 States without being struck by the differing parts which lawyers 
 have played in the development of the two countries. It is a 
 
fact that the growth of England toward freedom, and the develop- 
 ment of her institutions have been little aided by the members 
 of our profession; it is also true that both in the establishment 
 of our own form of government and in its amazing growth, the 
 legal profession has been preponderant, not only numerically, but 
 also in the quality of intelligence. With this thought in mind, 
 I ask you to direct your attention to the history of the United 
 States during two important periods and to the influence of 
 lawyers therein; and also to the present-day problems and the 
 ethical burdens laid upon you by reason thereof. 
 
 I do not stop to discuss the reason why England has an 
 unwritten Constitution, nor why the United States has seen fit to 
 put hers into writing. I call your attention to the fact, and 
 suggest as one reason for the preponderance of American law- 
 yers in the growth of American freedom, that the lawyers are 
 more definite and accurate thinkers than the laity, and, having 
 before them a written Constitution, they have proceeded to 
 enlarge and interpret it, keeping ever in mind the need for the 
 broad foundations of democracy and the widening of its 
 functions. 
 
 No careful student of history can fail to be impressed by the 
 influence which the legal profession has exerted upon civilization 
 and progress in all nations and in all ages, and especially in our 
 ■own country during the past century. 
 
 Nor is this fact a cause of wonder. The State is founded 
 upon law. The lawyer, from study and experience knows, or 
 ought to know, what laws are best adapted to changing condi- 
 tions, for, as conditions change, the laws necessarily change with 
 them. In our democratic land he naturally gravitates to public 
 affairs. Like the minister, he is an oracle of village life, and in 
 cities he is accustomed to deal with civic questions. He has 
 always been what the liberal training of his profession makes 
 him, a champion of freedom and a leader of human thought 
 and progress. The world has made vast advance in all matters 
 of legislation and law, justice and liberty during the last century, 
 and the lawyer has always been in the forefront of the struggle. 
 
 There were fifty-five signers of the Declaration of Independence, 
 thirty-two of these were lawyers who thus put life, liberty and 
 property at the risk of success. It was a new and startling state- 
 
ment of the right of the people to self-government and came 
 upon the world like a thunderbolt from clear skies. 
 
 Since the birth of the Republic every national Congress has 
 been very largely composed of lawyers. I need only refer to 
 a recent Congress, consisting of four hundred and forty-seven 
 members, of whom three hundred and twelve were lawyers. 
 
 It is thus apparent that historically the lawyers have played a 
 predominant part in two great periods of American history. The 
 first period is that of the formation of the Constitution. 
 
 The bickerings and the jealousies of the States after the close 
 of the Revolutionary war had demonstrated that the Union of 
 the States, loosely federated by the Articles of 1777, could not 
 be maintained without a more definite, accurate and binding 
 pronouncement of the relations of the States toward each other 
 and toward the nation which they purported to establish. The 
 fruits of a successful revolution had been garnered; the domina- 
 tion of England was at an end; the heroism and sacrifices of the 
 sparsely-settled colonies, the little fringe of settlements along the 
 Atlantic coast, had left a liberty-loving people free to work out 
 in their new country, untrammelled by precedent and foreign 
 interference, a great experiment in democracy. There were no 
 charts for the mariners on that wide sea, yet, undaunted, as was 
 Columbus when he set forth on his western course for the pas- 
 sage of the Indies, the Americans of 1787 fearlessly set sail on 
 democracy's broad waters, determined that the voyage should 
 make a chart for their own guidance and for the use of other 
 adventurers upon that unknown sea. 
 
 The preponderating element in the Constitutional Convention 
 of 1787 were the lawyers. Of the fifty-five members, thirty-five 
 were lawyers, of whom nineteen then were or afterwards became 
 judges ; and, I may add in passing, that of the twenty-four 
 Presidents of the United States, subsequently serving, nineteen 
 were lawyers. An examination of the debates of the convention 
 shows that the lawyers not only took the lead in the discussions 
 of the convention, but that their influence was always on the 
 side of freedom and order. Their story is the story of men 
 who determined that the liberty they had won should be defended 
 and perpetuated. The charter which they drew contained in 
 abundant measure provision for the protection of the rights of 
 
one State as against another; but it also contained provisions 
 needed for the growth and development of a great nation. As 
 we survey their work after the lapse of one hundred and eighteen 
 years and bear in mind the history of the national growth, we 
 are amazed that any body of men could have been so wise, so 
 far-sighted, so wide-visioned as this group which foresaw and 
 planned a great nation. 
 
 Mr. Gladstone once said: "As the British Constitution is the 
 " the most subtle organism which has proceeded from progressive 
 "history, so the American Constitution is the most wonderful 
 " work ever struck off at a given time by the brain and purpose 
 "of man." 
 
 John Fiske calls it "The Iliad, the Parthenon or the fifth 
 "symphony of Beethoven, * * * two complete and well- 
 " rounded systems of law, the State Law and the Federal Law, 
 " each with its legislative, its executive and its judiciary, moving 
 " one within the other, noiselessly and without friction. It was 
 "one of the longest reaches of constructive statesmanship ever 
 " known in the world." 
 
 The only criticism of their work which the men of to-day may 
 make is that they were too rigid and inflexible, in that they made 
 their written compact too difficult of amendment. 
 
 An important ethical question which touches the members of 
 our profession perhaps more closely than any other citizens, is 
 the attitude which you should assume toward the matter of the 
 amendment of the Constitution. You will remember that it 
 requires the consent of three-fourths of all the States in order 
 to amend our organic law. Historically all of the amendments 
 that have been passed were either normally a part of the Con- 
 stitution, that is, the first to the twelfth; or were adopted as the 
 result and under the pressure of the Civil War, that is, the 
 thirteenth, fourteenth and fifteenth. Very many amendments 
 have been proposed, but they have failed of adoption, and it is 
 safe to say that the Constitution is practically unamendable by 
 the method provided by its framers. This is the result of the 
 cumbersome method adopted by the Constitutional Convention 
 of 1787. 
 
 On the other hand it is safe to say that no set of men is wise 
 enough to legislate for all posterity. A nation's growth demands 
 
changes in its organic law to meet new conditions. England's 
 Constitution is unwritten. It may be enlarged or modified by the 
 acts of Parliament, that is, by the will of the people expressed 
 through their representatives. Radical modification is improba- 
 ble in view of the intensely conservative character of the people. 
 Hence, the changes in the organic law of Great Britain are made 
 solely in response to national demands ; but at least they are made. 
 
 In the United States, however, a method has been found of 
 amending, so to speak, the Constitution through the decisions of 
 the Supreme Court. I yield to no one in my respect for the 
 Supreme Court. In the last analysis, it is the keystone of our 
 national edifice. It is to the government what the balance wheel 
 is in machinery. It was neither an imitation of, nor an evolu- 
 tion from, any tribunal previously existing. It was an absolute 
 invention of the convention. For the first time in national history 
 a court was created whose function it was to pass upon all other 
 branches of the government, the Constitutions of the States and 
 even the Federal Constitution itself. This court has been called 
 " the crowning marvel of the wonders wrought by the states- 
 " manship of America, embodying the loftiest ideas of moral and 
 " legal power. * * * No institution of human contrivance pre- 
 " sents so many features calculated to inspire awe and veneration. 
 " It is a tribunal of which the ancient world could present no 
 " model, and the modern world boast no parallel, whose decrees, 
 " woven like threads of gold into the priceless and imperishable 
 " fabric of our constitutional jurisprudence, would bind in the 
 " bonds of love, liberty and law, the members of a great republic." 
 Yet twice, at least, in the history of the court the rule of stare 
 decisis has been violated by that court, first, in the Legal Tender 
 Cases, and, second, in the Income Tax Cases. 
 
 Your training, gentlemen, has been to respect the rule of 
 stare decisis and to apply the old law rather than create new law 
 by decisions. This, then, is the question of the ethical responsi- 
 bility upon you: Shall you throw your influence hereafter in 
 favor of the inviolability of the Constitution and its amendment 
 only by the method prescribed in the instrument itself ; or, believ- 
 ing that it is practically unamendable, is it your duty to ask the 
 Supreme Court, should occasion arise for you so to do, to cast 
 aside the precedents of the earlier days in order to interpret the 
 
8 
 
 Constitution in such a way that the nation's growth may be 
 advanced and not retarded, that new problems, unforeseen by the 
 f ramers, shall be solved in a new way ? It is a dangerous princi- 
 ple to admit that we may disregard the Constitution; and all 
 your training has tended to create respect and obedience for 
 already-established law. Yet, on the other hand, it may some 
 time become necessary not only for the growth of the nation, but, 
 indeed, for its preservation, that the written law of the land be 
 disregarded. I leave this question with you with the suggestion 
 only that the violation of the Constitution tends toward anarchy, 
 while a literal compliance with it may stifle national growth. 
 
 Great as was the period of the formation of the Constitution 
 the period that followed, the period of interpretation, is to my 
 mind quite as great, if, indeed, not greater. It is a period marked 
 by the eminence of one man, John Marshall, Chief Justice of 
 the United States from 1801 to 1835. I venture to say that the 
 history of no other court shows a preponderance of power like 
 that of John Marshall. He was the fourth Chief Justice and 
 the most eminent and influential of all. He had not been a mem- 
 ber either of the convention that led to the Articles of Confedera- 
 tion of 1777, nor of the Constitutional Convention of 1787, but 
 he had been in public life as a member of the Virginia House of 
 Delegates and a member of the Council of State as well as one 
 of the envoys sent to negotiate a treaty with France. He had 
 made some mark as a lawyer at the Virginia Bar. His qualifica- 
 tions for the position of Chief Justice were not widely known, 
 although Washington had offered him the Attorney-Generalship 
 in his Cabinet, and Adams had urged upon him to accept the 
 appointment of Chief Justice of the Supreme Court. This, at 
 first, he declined, becoming, however, Secretary of State in the 
 Adams Cabinet. But in 1801 he accepted the Chief Justiceship 
 and for thirty-four years he was at the head of that court. 
 
 It will be an interesting study for you in the leisure of your 
 summer to examine the early volumes of Cranch, Wheaton and 
 Peters, which contain the decisions of Marshall, and to observe 
 how the Great Chief Justice dominated his court. In ninety per 
 cent of the cases in which he was engaged, that is, the cases in 
 which he was not prohibited from acting by reason of his interest 
 or having taken part in the decision below, the opinion of the 
 
court is the opinion of Marshall. In all of the constitutional 
 questions he was without precedents to guide him. No such 
 instrument had been before the courts of England; the common 
 law, rich and fruitful in suggestion as it was, could aid him only 
 indirectly in helping to develop a nation's growth; but Marshall 
 had, as perhaps no man in America before or since, the instinct 
 and the passion of nationality, and he evolved as from his inner 
 consciousness the breadth and scope of constitutional authority 
 and its limitation. He declared that the Supreme Court had the 
 right and power to pronounce an act of Congress null and void, 
 if, in its opinion, such an act violated the Constitution. He 
 averred that the principles of the common law were founded upon 
 justice and common sense and that they were flexible and adapt- 
 able to the settlement of new disputes between man and man, 
 although they threw little light upon relations between State 
 and State. But far beyond this, he averred that in the United 
 States the first great experiment in democracy, with inherent 
 and ineradicable purposes of freedom, could best be developed on 
 large national lines and by the growth of a powerful central 
 authority. He knew that the articles of the confederacy meant 
 disunion and halting growth, and that the Constitution of 1787 
 had in it the means and the terms of a great national development. 
 Having these things in mind John Marshall, the greatest of the 
 Federalists, consistently and persistently strove to develop a 
 nation and to check the forces of disunion. So that I say that 
 the period of John Marshall, in the development of the Constitu- 
 tion and of a great nation under it, was as great a period as the 
 period of the formation of the Constitution. 
 
 Professor Bryce says of Marshall' : " The Constitution seemed 
 not so much to rise under his hands to its full stature, as to be 
 gradually unveiled by him till it stood revealed in the harmonious 
 perfection of the form which its framers had designed. That 
 admirable flexibility and capacity for growth which characterize 
 it beyond all other rigid or supreme constitutions, is largely due 
 to him." 
 
 President Garfield said : " Marshall found the Constitution 
 paper, and. he made it power ; he found it a skeleton and clothed 
 it with flesh and blood." 
 
 Daniel Webster, another lawyer of this period, stands almost 
 as great as Marshall. He ranks highest among the men who 
 
lO 
 
 argued for the integrity of the Union and against nullification 
 and the right of a State to secede; he was the greatest of the 
 constitutional lawyers of his period and was prominently the 
 apostle of nationality. His argument was not for the creation 
 of a new nation, but it was the exposition, as an existent fact, 
 of a nation created by and based upon the Constitution, and in 
 that position he never faltered. 
 
 It is indeed the duty of the lawyer to regard first and always 
 the interest of his client; that duty is well stated in the familiar 
 words of Lord Brougham in his speech in defense of Queen 
 Caroline : 
 
 " An advocate, by the sacred duty which he owes to his client, 
 ' knows in the discharge 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 highest and 
 ' most unquestioned of his duties ; and he must not regard the 
 ' alarm, the suffering, the torment, the destruction which he may 
 ' bring upon the other. Nay, separating even the duties of a 
 ' patriot from those of an advocate, and casting them, if need be, 
 ' to the wind, he must go on, reckless of the consequences, if 
 ' his fate it should unhappily be to involve his country in con- 
 ' fusion for his client's protection." 
 
 But Marshall and Webster, and the lawyers in the constitu- 
 tional convention, were fortunate in having, so to speak, the 
 whole people for their client. It is in large measure because of 
 their unswerving devotion to the interest of that client that we 
 have to-day a united and progressive country. 
 
 Present Problems. 
 The work of the constitutional group created for the United 
 States a firmly defined and well planned democracy ; the questions 
 of political freedom in this country were settled once for all as 
 the result of the labors of the constitutional convention of 1787. 
 The labors of John Marshall and Daniel Webster, the judicial 
 and the legislative advocates of freedom, created the sentiment 
 of nationality and union which unified the North in the Civil 
 War, and rfesulted in a triumph of arms which settled forever 
 the question of nationality. 
 
II 
 
 Every age has its problems, and Divine Providence raises up 
 men to solve them. These two great problems of the past, that 
 the people are sut)reme, and. that this is a nation, having been 
 settled, it behooves you, as brothers of the great lawyers of the 
 past and successors to their traditions, to approach in their spirit 
 the problems that will confront you. 
 
 I think you will agree with me that no further problem of 
 the union of the States composing the nation is likely to be 
 presented. The relations of the States between themselves and 
 of the States toward the Union have been solved by events, and 
 the United States to-day is a unified nation; strong to receive 
 and assimilate the heterogeneous masses which immigration is 
 thrusting into our country. 
 
 But the questions of freedom are not yet all settled. Political 
 freedom has been assured, and it is safe to say that there will 
 be no departure from the terms of the settlement; this country 
 is governed by the people thereof, and, no matter how great a 
 temporary success any men or group of men attain in shaping 
 the policies of the country, nevertheless, the ultimate power 
 being lodged with the people, the people will assert their power 
 and impress their convictions upon the policies of the country. 
 
 I desire to call your attention to two sets of problems which 
 confront us : Those of the United States in foreign relations, and 
 those of the United States in domestic matters; and to say that 
 the ethics of our profession imposes upon you the duty of aiding 
 to solve these problems in the same spirit which Franklin, 
 Hamilton, Jefferson and Madison brought to the constitutional 
 convention, and Marshall and Webster brought to the period of 
 nationalization. , 
 
 In the last fifteen years the position of the United States in 
 international matters has completely changed. Prior to 1890 
 the United States in foreign matters was a negligible quantity. 
 We had no colonies; we did not interfere in European matters, 
 and our sphere of foreign activity was confined to the negative 
 position stated by the Monroe Doctrine, that there should be 
 no European aggrandizement in this hemisphere. But Mr. 
 Cleveland's message in regard to Venezuela, and the results of 
 the Spanish War, have brought a change. We have taken a 
 positive position in the world's affairs, and we have acquired 
 
12 
 
 colonies. It is your duty to exert, as far as in you lies, your 
 influence in international questions toward a sane and simple 
 attitude. We are not concerned with the problems of Russia 
 and England in India; with France and Germany in Morocco, 
 or with the struggle of the great powers for territorial aggrandize- 
 ment in South Africa; but we are concerned, for the sake of 
 our trade, for instance, that no nation shall seize China for its 
 own spoliation. It would seem proper, therefore, that you 
 should support the efforts of the State Department under this 
 administration looking to an even chance for all nations in the 
 undeveloped countries of the world, a policy which has for its 
 justification, not the sole advantage of the United States, but an 
 equal opportunity for all. 
 
 As the result of the Spanish War we have the Philippines 
 and Porto Rico; Hawaii prior to the war had asked for union 
 with us; Cuba is bound to us by ties of gratitude and interest. 
 Does it not seem right to you that in our colonies — Porto Rico 
 and the Philippines — as hitherto in our territories, the aim of 
 our policy should be to create self-governing, educated com- 
 munities, rather than dependencies? Historically the United 
 States has stood for freedom. It was the first great experiment 
 in democracy, the rule of the people. I urge upon you the 
 principle of freedom for these peoples, the same freedom that 
 we ourselves have secured. I do not discuss the time when, the 
 freedom should be granted. I desire to enter into no political 
 controversy, but I ask you to carry into your thought and dis- 
 cussion of the colonial problems the same thought that Jefferson 
 and his associates carried into the War of the Revolution, 
 namely, that it is an inalienable right of a people to govern 
 themselves after their own desires. It is better to blunder in a 
 democracy than to prosper under an autocracy, for even the 
 blunders of democracy make for progress, while the prosperity 
 of an autocracy menaces the future. 
 
 In matters that affect domestic relations the problems are 
 much more complicated. The Fathers of the Republic thought 
 they had solved all questions of freedom when they established 
 political freedom. So far as their day and generation were 
 concerned they were right, but they could not foresee the 
 tremendous industrial change of the last fifty years. The 
 
13 
 
 problems which the industrial change has created are quite as 
 serious as the problems of political freedom, but the same spirit 
 which solved the latter is adequate to solve the former. I ask 
 you to bring to the solution of these questions the same sanity 
 and earnestness, the same desire for freedom, as the apostles of 
 democracy brought to the earlier problems. 
 
 America has developed so fast in material prosperity, and the 
 captains of industry have rendered the country and the world so 
 great a service in that development, that we are sometimes 
 prone to believe in the right of the men who have done this work 
 to retain all the fruits of their toil. I think you will not disagree 
 with this assertion of right, provided, first, that there has been 
 no violation of law in obtaining the fruits, and, second, that the 
 public has not suffered by the work of these men. But I ask you 
 to carry into your thought and discussion of public questions 
 one principle by which all questions must be solved; that prin- 
 ciple is contained in the old legal maxim salus populi suprema 
 lex; and I further ask you to give to the word salus, safety, a 
 somewhat wider meaning than its etymology connotes. I ask 
 you to define salus as meaning prosperity, and progress, and 
 order, as well as safety. 
 
 In the questions of the trusts, of municipal ownership, of the 
 tariff, of the increase in wealth, your touchstone should be the 
 interest of the people. 
 
 To take a concrete example: Throughout the United States 
 transportation companies, the steam, surface, subway and 
 elevated railroads have come under the control of a small group 
 of men. The census of 1890 disclosed the fact that the trans- 
 portation companies owned one-seventh of the assessed prop- 
 erty of the country. Their employees have formed unions and 
 associations for the purpose of protecting themselves, and such 
 unions are the only weapons in the hands of the employed. But 
 the functions which the employers and the employed perform 
 are public functions; the transportation business, passenger and 
 freight, is not a private business; it concerns most of all the 
 persons whom, and for whom, it transports. It is the right 
 of the public to demand of the companies which are operating 
 under franchise from the State and cities that the service shall 
 be safe, commodious, rapid and uninterrupted. Lockouts and 
 
14 
 
 strikes, because of relations between employer and employed^ 
 are of no concern whatever of the public. The public has the 
 right to demand, as I have said, safe and uninterrupted service. 
 Your sympathies may be with the employers, because of the 
 belief that the men are lawless and overreaching in their demands, 
 or they may be with the employed, because of the belief that 
 the operators of the road are oppressing the men and beating 
 down wages in order to make dividends on watered stock. I 
 have here no concern, either with the employers or employed 
 as such; but with the public whose rights are inconvenienced by 
 these private quarrels, whose lives are imperiled and sometimes 
 lost, whose convenience is utterly disregarded, I have the utmost 
 sympathy; and I ask you, therefore, to bring to the discussion 
 of all these problems of public utilities an attitude absolutely 
 antithetic to the famous attitude of William H. Vanderbilt that 
 " The public be damned ; '' I ask you to assert " The public be 
 " saved." If it be necessary that the interest of the traveling 
 public be protected by a compulsory arbitration law which shall 
 forbid the employer from locking out or the employed from 
 striking, is it not your duty to advocate such a law? The 
 private quarrels of men, under the form of democracy which 
 we have developed, are not settled by the pistol or the bowie- 
 knife, but in the courts of law, because the safety of the public 
 requires it. Private vengeance, says democracy, shall not be had. 
 Let us also say, industrial vengeance shall not be wreaked either 
 by an employer in discharging his men and shutting down the 
 operation of its road, or by the employed in striking and thus, 
 again shutting down the operation of the road. Is it not possible 
 to do what New Zealand has done, compel both sides to arbitrate^ 
 meanwhile continuing to perform their public functions without 
 interruption and without menace to life, and limb, and property? 
 And so on the question of trusts and the great aggregation 
 of capital which place control in few hands. I do not urge upon 
 you any a priori considerations as to the right of the few to con- 
 trol the industries and activity of the many from any standpoint 
 of the employer or his employees ; but I ask you to, approach 
 the solution of this question from the standpoint of the interests 
 of those not directly affected in the industry whose control is 
 thus centralized. Are the trusts, by their doing away with com- 
 
15 
 
 petition or their economies in operation, or their avoidance of 
 waste, performing a public service, or is the public better served 
 by free competition and uncontrolled division of the industry? 
 Are the trusts another step in the evolution of industry from the 
 journeyman to the shop, from the shop to the partnership, from 
 the partnership to the corporation, and from the corporation to 
 the corporation of corporations? I do not seek to control your 
 judgment on any of these questions, except by asking you to 
 translate again the motto saliis populi suprema lex into the terms 
 of modem industrial life; to keep in mind always that the interest 
 of the people must be the ultimate standard of judgment. That 
 was the standard of the great men in our profession, whose deeds 
 I have already recounted. 
 
 Lincoln once said : " He who moulds public opinion goes 
 " deeper than he who makes statutes or pronounces decisions. 
 " He makes the execution of statutes and decisions possible." 
 
 I have no doubt that many of you will become ardent Repub- 
 licans or ardent Democrats; will stand for non-interference by 
 the government with private enterprises or for State control; 
 will range yourselves on the side of the laboring men or with the 
 corporations; will come to believe that there is no tyranny like 
 that of wealth, or, no .tyranny like that of organized labor. I 
 care not what your sympathies from heredity or experience may 
 be, but I ask you most earnestly to bring to the solution of all the 
 questions which your profession will thrust upon you two con- 
 victions : First, that democracy, as a method of government, has 
 come to stay, and, second, that the needs of public safety are the 
 highest law. With these two convictions in mind, however 
 widely you may differ, you cannot go astray in the solution of 
 the problems that will be presented to you in your professional 
 life. 
 
LEGAL ETHICS 
 
 LECTURE 
 
 DELIVERED BEFORE THE STUDENTS OF THE 
 ALBANY LAW SCHOOL 
 
 IN THE HUBBARD COURSE ON 
 
 LEGAL ETHICS 
 
 By 
 
 Judson S* Landon, LL* D. 
 
 LATE JUDGE OF THE COURT OF APPEALS 
 
 of tho 
 
 STATE or NEW YORK 
 
LEGAL ETHICS. 
 
 A Lecture Before the Students of the Law Depart- 
 ment of Union University in the Course Founded 
 by General Thomas H. Hubbard. 
 
 The benevolent and upright founder of this course of 
 lectures felt that broad as is the range of legal principles, and 
 ample and attractive as is its field for the exercise of the 
 highest intellectual and moral attainments, yet the true office 
 of those who are licensed by the government to practice in 
 the law as a profession is to aid the people of the State and 
 the State itself in the observance of the law and in the 
 administration of justice. That to fall short of that end may 
 indeed be incident to human limitations; but to fall short 
 through the abuse by its practitioners of the ethical princi- 
 ples which such a license for such a purpose plainly implies, 
 would seem to justify an educational effort to secure a more 
 general recognition of those principles and to support them 
 by a firmer moral demand for their observance. 
 
 Professional ethics, except as they are enumerated in the 
 oaths required of those admitted to practice, and the cases in 
 which the courts have disciplined members, for such mal- 
 practice as has been injurious to their clients or in contempt 
 of the authority of the courts, seem to rest in that consensus 
 of opinion which prevails among its most honorable mem- 
 bers. This opinion, theoretically, at least is expected to be 
 recognized, and the sense of honor which should always 
 attend upon learning, character and privilege, as both orna- 
 ment and shield, should always suffice — not so much for its 
 enforcement as for its unfailing self-operation 
 
I do not know that any Legislature or bar association 
 has attempted to formulate in concrete detail a comprehen- 
 sive professional code. A general code might thus be stated: 
 " In the practice of his profession the lawyer shall advise and 
 act in all matters undertaken by him, lawfully, honestly and 
 faithfully, to the best of his ability." This will do very well 
 for plain cases in which the distinction between right and 
 wrong is not obscure. But the lawyer is often employed 
 because this distinction is obscured or is sought to be, and 
 his expert services are sought to aid either in dispelling the 
 obscurity, or to assist in taking advantage of it. No special 
 pilot is needed in the plain sailing of the open sea; but is 
 taken on board when the port to be gained must be 
 approached through a tortuous channel beclouded with fog 
 and beset with reefs and shifting shoals. It is perhaps better 
 that rules of the profession should not be reduced to exact 
 details, lest, as the opponents to the codification of the com- 
 mon law contend, the spirit be cramped in the letter and be 
 overlooked or disregarded in the study of the text. A text 
 invites verbal construction, often to the sacrifice of the spirit. 
 A right spirit is the life of professional honor, and, to him 
 who does not feel .it, rules are but words. 
 
 It is probably true that no other body of men has a 
 keener practical sense of the requirements of honor and duty 
 than a great majority of the great order of lawyers. They 
 devote their lives to the consideration and application of the 
 duties and obligations which men owe to each other in the 
 relations in which they are actually placed. With them 
 these are not mere academic questions to be considered in the 
 abstract, but concrete questions arising out of actual condi- 
 tions upon which life, liberty, property, peace, prosperity 
 and happiness actually depend. It is rare that two cases are 
 exactly alike, and thus counsel must carefully consider how 
 far varying facts affect or vary his duty or obligation. 
 
 If the question is to be submitted to the court, counsel 
 must be prepared to make such suggestions as he thinks are 
 pertinent to the solution of the question. If he is giving 
 
his client advice, the responsibility rests upon him to advise 
 his client truly as he believes his legal rights to be. 
 
 Even the most sublime of general precepts, like this from 
 St. Paul, for instance: 
 
 " Whatsoever things are true, whatsoever things are hon- 
 est; whatsoever things are ptire; whatsoever things are of 
 good report; if there be any virtue and if there be any praise, 
 think on these things " may simply confuse and bewilder, 
 unless counsel fits them to the case in hand. My experience on 
 the trial bench gradually led me to omit attempting to explain 
 the law to juries, but rather to tell them that if they found 
 the facts to be this way, the law required this verdict; if that 
 way, that verdict. In like manner, I think counsel must 
 himself resolve all abstract or general propositions into the 
 concrete result, and give to his client the practical results, 
 without much hoping to make a lawyer of him in an hour 
 or two. 
 
 The clear cases, such as, thou shalt not lie, steal, or bear 
 false witness, or the many things specifically named and for- 
 bidden in the Holy Scriptures, and among all civilized 
 peoples, speak for themselves; they are self-forbidden. But 
 there are many actions or omissions whose quality, character 
 and efifect depend upon their relation to the particular facts 
 of the concrete case. They often lie so near the border line 
 that seen through the light of interest, or selfishness, or 
 perceived by a defective or deadened sense of honor, they 
 seem to be upon the right side of the border, when a truer 
 light shows them on the other side. 
 
 It is such cases that the true lawyer is peculiarly fitted to 
 solve as they arise. The general principles of right action 
 which stand approved by the members of the bar whose 
 professional lives are without fear or reproach, and are felt 
 rather than acquired by the upright, furnish the unwritten 
 law of professional ethics. 
 
 We accept, as of course, every rule of right action which 
 the positive law of the land declares. And we must heed 
 every prohibition of the violation of such law. This is an 
 
important part, but it is only a part of a professional code. 
 You must distinguish between what your clients may right- 
 fully demand of you when you accept a retainer, and what 
 they may not; and of course what they may not rightfully 
 demand, you may not rightfully do. It is always true that 
 your client is entitled to his legal rights as the law declares 
 them, and when you accept his retainer you agree to use to 
 the best of your ability all honorable available means to 
 advance or protect his rights. If, for any reason satisfactory 
 to yourself, you think it is dishonorable for him to insist upon 
 his legal rights, you should decline his retainer — not accept 
 it, not palter with it. For example, his only defense may be 
 the Statute of Limitations; you cannot without his consent 
 waive this defense. You can refuse to accept his retainer, 
 if the circumstances compel you to think such a defense 
 unfair or dishonorable. 
 
 The rights which the positive law gives your client are 
 founded upon that moral law which the government under- 
 takes to enforce; the sort of practice by which you shall 
 faithfully seek to secure to him the benefit of those rights is 
 in part outlined by the government, but in great part rests 
 upon your choice of means, some right and some wrong, and 
 in this choice the unwritten moral law is involved. 
 
 The rights and obligations of your client under positive law 
 in no wise rest in your discretion; your practice, except as 
 the positive law has prescribed it, rests in your discretion and 
 involves your choice of means and the manner in which you 
 shall use your means. 
 
 Of course, so far as the law tells you what to do, you will 
 do it. So far as it is within your discretion what to do and 
 how to do it, you will recognize every rule of right and of 
 right action, which the enlightened conscience should sug- 
 gest and heed, and which a true sense of honor feels to be 
 binding — not as a mandate from without, but as an impera- 
 tive sentiment within. This moral law which should preside 
 over your practice can only appeal to the moral sense of each 
 individual. If the individual has none, the appeal will be in 
 
vain. The most that can be done with him is to make him 
 feel the force of the enlightened moral sense of those whose 
 equals he is ambitious to be considered. 
 
 Every action which has a moral quality includes motive, 
 act and end. I shall not pause to enlarge upon the general 
 topic of ethics, but content myself with saying that the motive, 
 the act, and the end should be right. 
 
 Do you say that the rule of practice thus broadly indicated 
 is too ideal and exalted for practical use in this wicked world? 
 I answer that it is in part because this is a wicked world, or 
 rather because wickedness does greatly abound in it, that 
 lawyers are necessary. Why are they licensed by the gov- 
 ernment? Not to promote wickedness, or to secure it 
 immunity. Precisely the opposite. Their office is to advise 
 and assist their clients in all things necessary and proper to 
 enable them to have, maintain and enjoy those rights and 
 privileges, to secure which the government under which we 
 live was instituted among men. What would be thought of 
 a government which should establish an order of learned 
 experts to help any who should employ them for the purpose 
 to deprive or defraud their fellow men of even their least 
 share or lot in this equality, or of its fruits, namely, the prop- 
 erty or property rights thereby justly obtained, and for such 
 purpose to use any means not positively forbidden, or to per- 
 vert any permissible means? What would be thought of an 
 order of men who would devote themselves, or to be known 
 as experts in directing safe methods of successful fraud, or 
 in keeping the fruits of fraud already committed? The native 
 sentiment of right would not suffer the order to live. 
 
 Questions like these suggest their own answers. But such 
 answers also answer many concrete questions. 
 
 Is it permissible to advise a client how to dispose of his 
 property so as to cheat his creditors? 
 
 Is it permissible to advise a trustee or board of trustees 
 how to manage or manipulate a trust so as to cheat the 
 beneficiaries out of some part of it, or of its earnings? 
 
 To advise your clients to organize a corporation and exploit 
 it so as to obtain real money for worthless shares? 
 
To advise a client what steps to take to cover the fraud 
 whereby he has acquired the property of another, or to 
 destroy the evidence of it? 
 
 The answer to these questions and all others like thena 
 must be, No. It is plain that if you may so advise and act 
 in one case, you may in all, and thus the profession in your 
 hands might become the direct promoter of the objects and 
 purposes it is instituted to avert or suppress. But suppose 
 your client says, " Tell me the law, I am not inquiring about 
 morals." I concede you may tell him the law. You cannot 
 be the keeper of his conscience against his will, but you may 
 not connive with him so to abuse the law as to achieve dis- 
 honest or dishonorable results. But you say this practically 
 negatives the rule already stated. That depends upon the 
 moral quality of the individual. I am not speaking to that 
 moral defective who cannot understand; nor to him who seeks 
 in the letter of the rule some shifty way to crush its spirit. 
 
 But you say that if there is any rule that is absolutely 
 fundamental, it is that counsel must be entirely faithful to 
 his client; that the law prohibits counsel from disclosing a 
 communication made by his client to him as a client, or his 
 advice thereon; that counsel is liable to his client for damages 
 resulting from his negligence, or incompetency; and that he 
 may be debarred by the court if by fraud or deceit he misleads 
 him to his injury. All that is true, but it falls far short of 
 authorizing or sanctioning any dishonest or unfair practice. 
 
 Let us try to distinguish between what you may do by way 
 of attack, and what you may do by way of defense. In no 
 case may you bolster up a bad case by luring your adversary 
 upon the shoals and reefs; but suppose you believe your case 
 a good one, and your adversary seeks to mislead and wreck 
 you so that he can escape with safety, then you may treat 
 him accordingly, and by such expedient means as the emer- 
 gency affords and self-defense invites, you may, if you can, 
 find your way out of the danger. If he shipwrecks there, 
 retributive justice — and I think that is generally accepted — 
 
seems to have been done. The case would seem to be within 
 the spirit which has compelled equity to invent the rule of 
 estoppel. But when you have circumvented his evil practices, 
 you may not by falsehood or deceit build a false foundation 
 for your own case. 
 
 I can conceive of cases in which by way of defending the 
 right, the end will justify means which would never be per- 
 missible in defending or maintaining the wrong. In the 
 case of defense you sometimes may pay the wrongdoer in his 
 own coin — another term for retributive justice — but in 
 asserting and establishing your own case you may never palm 
 off false coin for true. Thus, I venture to advance the propo- 
 sition for your further consideration, that you are never 
 justified in deceiving your adversary in order to gain an 
 unfair advantage over him, but only to prevent him from 
 gaining an unfair one over you. I am willing to concede 
 something to righteous indignation, to that provocation 
 which invites retort in kind; to that generalship which out- 
 generals the trickster; but it is dangerous doctrine because 
 so liable to excess; but I am here in the interest of your self- 
 respect, and though you may not resist evil to the point of 
 becoming an offender in turn, you do well if in laying your 
 adversary by the heels you simply give an object lesson 
 discouraging to vice. 
 
 Still we should remember that the rules and practices of 
 legal warfare are not like the rules of military war — to sub- 
 due the enemy whether he is right or wrong; but are devised 
 to aid in finding out whether he is wrong; because if so found, 
 he is thereby subdued. 
 
 The general rule is, that it is never right to do wrong; and 
 he is truly faithful to his client who so advises him; but in 
 determining what is wrong, motive, means and end may 
 sometimes be considered together, never forgetting, however, 
 that the motive may be good and the end good, and the 
 means so bad as to be wholly inadmissible, for example, to 
 steal from your debtor the money he owes you, or to defraud 
 anyone in order to found a charity. 
 
10 
 
 But you say counsel must obey the instruction of his client. 
 Yes, in everything except as to the manner in which counsel 
 shall practice his art, and except instructions to do things 
 dishonorable. Counsel may not make himself an accomplice 
 in the further dishonorable practices proposed by his client 
 in order to protect him from the consequences of the dishon- 
 orable acts he has already committed. 
 
 It is sometimes said that counsel may say and do for his 
 client everything that his client could say and do for himself 
 if he were sufficiently expert. Now, an unscrupulous client 
 might lie to the court with a brazen face both as to the facts 
 and the law, and resort to every means of deceit which 
 trickery or chicane could devise. Of course, no honorable 
 counsel can do these things, and hence it is not true that 
 counsel in representing his client divests himself of himself 
 and is merely the hand and voice of his client. What con- 
 sideration would the court give to counsel or to the case of 
 his client if he should open his case with words like these: 
 
 " May it please the court — In presenting the case of 
 my client I wish it to be understood that I am not 
 responsible for anything I may say or do; that I merely 
 undertake to present his case just as I believe he would 
 present it himself, if he had sufficient professional 
 expertness." 
 
 Such language would be regarded as an admission that 
 counsel was ashamed both of his case and his client. ^ 
 
 But it is plain that counsel may do and say for his client 
 all that his client might honorably say and do for himself, 
 and he ought to say and do it as efficiently as he can. If, as 
 sometimes happens, the law has not been, so far as the 
 peculiar facts of his case depend upon it, clearly declared, 
 then counsel may contend for such declaration of it as shall 
 protect his client; for in doubtful cases it may be that the 
 court will declare it in his favor; but he must not mislead the 
 court to believe that to be the law which he knows is not so. 
 
II 
 
 And if it is a close question whether this or that line of 
 authorities, or this or that principle of law governs the case, 
 he may contend for whichever is most in his favor. Equally 
 so when the evidence in the case is such that honest men, 
 unaided by argument and suggestion, might hesitate or differ 
 in opinion as to the proper inference to be drawn from it, 
 he may to the best of his ability contend for his own side. 
 In all these cases counsel for the other party will do the 
 same, and, as it is sometimes expressed, out of the sparks of 
 the conflict the truth will be revealed. Such contests hon- 
 orably and skillfully conducted are aids to the administration 
 of justice. 
 
 So, too, it is generally agreed that counsel may honorably 
 defend any person charged with crime, however odious that 
 crime may be, or however clear in advance of the trial his 
 guilt may be supposed to be. Such a person has a legal right 
 to counsel, and, in the judgment of our humane law, he is 
 presumed to be innocent until his guilt is proved beyond all 
 reasonable doubt. No man under our government can be 
 convicted of crime except by due process of law, and the 
 worst of criminals has a clear right to such protection. The 
 rule is for the benefit of the innocent as well as the guilty, 
 and if the guilty can be deprived of that protection, the 
 innocent may be. You are the champion of the rights of all 
 when in the person of the least deserving you insist in every 
 honorable way that his measure of right shall not be scanted. 
 But in this, as in every other professional action and relation, 
 you are in no respect immune from any moral obligation to 
 be honest and truthful. 
 
 Believe me, gentlemen, counsel do not and cannot divest 
 themselves of the influence which learning, ability, integrity, 
 character and standing give them. If this influence becomes 
 great, it does so because always held true to its exalted source. 
 And it is the pride of the profession, its ornament, and glory, 
 and the vital principle of its perpetual life — if perpetual it 
 
12 
 
 shall be — that the higher these qualities are, and the higher 
 the standard by which they are tested, the greater, more useful, 
 and honorable the profession will be, both in its body and 
 in its individual members. This of itself ought to stimulate 
 every generous mind to rise so near as may be to the highest 
 standard. Who is it that will ask you to violate the best 
 standard? Not the honest man certainly, who simply seeks 
 to exercise his just rights and to have them determined and 
 respected. Then it must be the dishonest man who will ask 
 you to be the partaker in his dishonest practices, or to defend 
 them by dishonest means. It will be your privilege to decline 
 and to give him timely notice. No doubt he will employ less 
 scrupulous counsel. Fortunate for you if you are so consti- 
 tuted that the consciousness of the unflecked whiteness of 
 your soul is a greater source of comfort than a liberal fee 
 could have been. 
 
 I may refer to the oft-quoted remarks of Lord Brougham 
 as counsel upon the trial of Queen Caroline. He said: 
 
 " That an advocate by the sacred duty which he owes 
 his client, knows in the discharge 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 cost to all others, and, among 
 others, to himself, is the 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." 
 
 The Court of Appeals of this State (Great Western Turn- 
 pike Co. V. Loomis, 32 N. Y., 133) quoted these remarks of 
 Lord Brougham, and added: 
 
 " Such a proposition shocks the moral sense." 
 Thus we have high judicial authority as we also have the 
 weight of carefully considered professional opinion in con- 
 demnation of this pernicious heresy. No doubt it has 
 occasioned much evil. 
 
13 
 
 The safety of the people and of the State depends in a 
 great degree upon the righteous administration of justice. 
 The first duty of the State is to make itself a guarantor of 
 substantial justice to all its people. Failing that, it has no 
 right to exist. The bar ministers at the altars of justice, and 
 its service should be worthy of the office. But the judges 
 who preside at the altar are recruited from the bar, and as 
 is the bar so are the judges. Suppose the judge, through the 
 lax or complaisant methods prevalent at the bar, has lapsed 
 into a dull moral sense, or has never risen out of it. If 
 counsel should seek to excuse or justify the wrong done by 
 his client, by urging the irrelevant suggestion, that his client 
 had done no worse than many others have done, and are 
 doing — would not such a judge be inclined to accept it as 
 a sufficient excuse? If so, justice would enter upon the 
 down grade. 
 
 Suppose your case depends not merely upon a knowledge 
 of the principles of equity as laid down in the books, but also 
 upon a realizing sense of their proper force, and the judge — 
 recruited from your bar but nominated by the political boss 
 — is defective in the latter quality. You not only lose your 
 case but assist in forming a precedent in which equity begins 
 to drift from its moorings. 
 
 This is the more to be considered because in our courts 
 of first instance cases are necessarily somewhat hastily 
 decided, and in our intermediate appellate courts the right 
 of appeal to the Court of Appeals lessens their sense of final 
 responsibility. But the jurisdiction of the Court of Appeals 
 does not except in capital cases extend to the review of ques- 
 tions of fact; in equity cases the discretion of the trial judge 
 is often decisive, and his decision is such a mixture of law, 
 fact, and his discretionary sense of what it is well enough to 
 do, that no exception can avail to secure a review in the Court 
 of Appeals. But the report of the case remains to exhibit the 
 feeble power of equity under such a state of evidence. 
 
 I suggest these matters as incidental, but important 
 sequences to lax professional ethics. If I am right they sap 
 
14 
 
 the foundations. The dishonorable cannot well be kept out 
 of the profession. Shysters by nature, and shysters developed 
 under temptation, are with us always. The hand of greed 
 stifles the remains of their conscience. But such men should 
 be under the ban of the best opinion. 
 
 The bar should take care of its own reputation. It is fra- 
 ternal and generous. It is inclined to leave every member 
 to be the keeper of his own conscience. It is too tolerant of 
 crookedness veneered with smartness. It has often been 
 reproached with the generous fault of covering a brother's 
 professional sins with its mantle of fraternal charity. When 
 the bar was small it might well be that the fact that an 
 erring brother should need and receive such a mantle was 
 rebuke enough ; but that day has gone by. Of course, I do not 
 advise that the individual members should take upon them- 
 selves the invidious task of spying out the faults of their fel- 
 lows; the practical remedy should be found through local bar 
 associations. 
 
 The great increase in the membership of the bar, I think, 
 imposes upon all its members a greater regard for its reputa- 
 tion. Why tolerate longer the old jokes at the expense of 
 their integrity, such as imply approval of separating a client 
 from his property? 
 
 In the palatial home of the Bar Association of the City of 
 New York hangs a picture illustrating the old gibe about the 
 lawyer keeping the oyster and giving each claimant a shell, 
 I would consign the picture to the ash barrel. If it ever was 
 typical of the truth it was so because it is true that the truth 
 has its exceptions 
 
 It is bad form to slander ourselves even under the freedom 
 of pleasantry. 
 
 The sense of honor differs with different individuals. If 
 in every case of doubt or even of a difference of opinion 
 among honorable men the rule should be that where the 
 temptation to greed points one way, and the sentiment of 
 honor, though less than unanimous among good men, points 
 
IS 
 
 the other, the doubt should be resolved against greed, our 
 profession might attain to an exalted height, like a city set 
 upon a hill. We may not hope to realize such an eminence 
 in virtue, but may we not hope so to strive for it that we 
 shall be ashamed of ourselves every time we fall below it, 
 and rise again — seventy times seven if need be — with firmer 
 resolution to be true to our ideals. 
 
 You are entering upon your career, young gentlemen, 
 when greed is the most potent factor of activity, and its 
 unequal fruits the most dangerous element of discontent. 
 
 You see articles in the public press as to the causes of 
 corporate dishonesty. As if such an evil were as incontest- 
 ible as the ebb and flow of the tides, and its causes as proper 
 a subject of scientific investigation. You see specific 
 charges of dishonest gains upon a vast scale and through 
 varied forms of deceit. 
 
 This is a country of universal sufifrage, and an ominous 
 note of warning is sounding, not obscurely. It is that the vast 
 wealth of the manipulators of money is becoming so obnox- 
 ious to the discontented as to be evidence of its dishonest 
 acquisition, and also to invite reprisals. The charge of 
 fraud, corruption and graft is easily made, hard to be proved, 
 and often harder to be defended, but it may in evil times with- 
 out much proof serve as the pretext for the strong hand — 
 for violence and spoliation. 
 
 It is to be hoped that through publicity and discussion the 
 public agitation will result in more clearly condemning the 
 trickery, chicane and oppression which are too often resorted 
 to to acquire wealth. Already there are hopeful signs that 
 wealth thus acquired withdraws from the possessor the 
 respect of men whose good opinion is valued. " Better," says 
 Solomon, " is a little with righteousness, than great revenues 
 without right. A good name is rather to be chosen than 
 great riches." Suppose it to be true that poverty or envy 
 forces the masses of the people to recur to these consolatory 
 proverbs, still their truth cannot be disputed, and the revival 
 
i6 
 
 of their influence may avert the storm, or calm it after its 
 first rage is spent. 
 
 History tells us that a decaying State and a corrupt bar 
 nurture each other in evil. In this age an enlightened bar 
 through its wholesome influence with the courts and clients 
 can do more, perhaps, than any other order of men to stay 
 
 strife and strengthen the bulwarks of justice and peace. 
 
 Time was when the decay of morals on the part of those 
 who enjoyed power, privilege and wealth forboded the down- 
 fall or disruption of the State. But there was then no such 
 general diffusion of intelligence as now, no universal suffrage 
 as now. A disinterested public opinion is usually right, and 
 it never was more potent than now. Convulsions, agitations, 
 outbreaks and disturbances, founded upon alleged abuses, 
 may, among intelligent self-governing English-speaking 
 peoples, be the spur to remedial agencies, promotive of better 
 civilization. They may for a short time unchain the passions 
 of the mob, but the strong arm of the State wall prevail, and 
 the sober intelligence of the people, when they recover from 
 the shock, will reform the abuses. If the storm breaks, it will 
 pass. It may leave some wrecks, but it will bring its com- 
 pensation in its lessons of wisdom and thus the dawn of a 
 brighter day. 
 
 It is lamentable that such remedies should be necessary. 
 I think the profession could avert them if it would. 
 
 I sometimes think that our methods of administering jus- 
 tice — I mean the procedure — the mint, anise and cumin — 
 not the weightier matters of the law — are unworthy an intel- 
 ligent and justice-loving people. The lawyers are largely 
 responsible for it. We inherited something like these methods 
 from England, and have manipulated our inheritance — 
 sometimes for sinister purposes — into a sort of maze, so 
 beset with perplexing details that the honest suitor seeking 
 the straight road to speedy justice finds himself mired in its 
 by-paths. 
 
 This particular evil the lawyers should seek to remedy. If 
 their ethical sense could be roused from its passive to an 
 
17 
 
 active condition and focused upon reform, reform would 
 follow. 
 
 Another evil, I think, is in our system of evidence. It has 
 come down to us from an age when less injustice was to be 
 feared from ignorant juries than from judges dependent upon 
 the pleasure of the crown. It is based upon the correct 
 principle that inexpert jurors should not be misled by irrele- 
 vant facts. But the courts have wandered step by step far 
 afield in distinguishing with subtle refinement between com- 
 petent and incompetent evidence of relevant facts. If juries 
 were abolished, the reason for these refined distinctions would 
 cease. The result now is that the dexterous counsel, unable 
 to prevail upon the merits, often succeeds in reversing a 
 righteous judgment, upon such alleged errors in evidence, 
 and too often delays the execution of such a judgment in his 
 vain efforts to reverse it. I am not arraigning juries, but 
 the system by which justice is delayed and thus often denied 
 and often perverted. Better abolish it than consider so late 
 and so long whether a technical error may not be detected 
 in the ruling which did or did not permit the jury to hear 
 something which might or might not be safe to address to the 
 ear of ignorance. Better no new trial than one too late. 
 
 I instance these cases as examples illustrative of the tend- 
 ency of our system to beclog itself with obstacles and pitfalls. 
 I see no peaceful corrective of such evils except as inspired 
 by the profession. No other body of men is so competent. 
 Justice is the end, and upon your active ethical sense of the 
 proper means to that end must rest the hope for its speedy, 
 wise and peaceful attainment. 
 
 If I have omitted to hold up to your admiration and emu- 
 lation the noble and useful careers of some of the many illus- 
 trious members of the bar who in the forum, in the councils 
 of State, and in the seats of justice, have exalted our con- 
 ceptions of the worthiness of human nature, and of the 
 splendor of intellectual and moral achievements, it is not 
 because I fail in appreciation, or reverence, or gratitude. Such 
 
i8 
 
 lawyers are among the glories of the human race, and have 
 been the saving leaven of our profession through all the ages. 
 In no other age has the bar been more learned or able than 
 it is to-day. It is still advancing in learning and ability. The 
 number of those with whom the sense of honor will preserve 
 their honor from all stain is not diminishing. The tempta- 
 tions, however, that beset the bar were never greater, and 
 the need to preserve the standard of professional ethics as 
 near as may be to its ideal purity was never greater. If I 
 recall some possible lapses, it is to encourage you to shun 
 every unworthy practice, and to aid as best you can in the 
 righteous observance and administration of justice. 
 
THe Obligations of 
 tKe La^wyer 
 
 LECTURE 
 
 DELIVERED BEFORE THE STUDENTS OF THE 
 ALBANY LAW SCHOOL 
 
 IN THE HUBBARD COURSE ON 
 
 LEGAL ETHICS 
 
 By 
 
 Henry W, Jessup, A. M*^ LL* M, 
 
LEGAL ETHICS. 
 
 A Lecture Before the Students of the Law Depart- 
 ment of Union University in the Course Founded 
 by General Thomas H. Hubbard, 
 
 The Obligations of the Lawyer, by Henry W. Jessup, 
 A. M., LL. M. 
 
 To the Students of Albany Law School: 
 
 A lawyer is an officer of the courts bound by an oath, em- 
 phasizing his relations, to the community, in that he swears 
 to support the Federal and State Constitutions; to the courts 
 of record of the State in which he becomes an important agent ; 
 and to his clients, in that he assumes the duties of attorney 
 and of counsellor at once. 
 
 To consider these logically we may reverse their order, for 
 the lawyer's relations to the community, as well as to his 
 fellow lawyers, grow out of his relations to his client and to 
 the court. Some one might frivolously assert that in con- 
 sidering a lawyer's relation to his client one must follow the 
 rule laid down in the recipe for hare soup, i. e., "first catch 
 your hare." Whereas, as a fact, the duty and obligation are as 
 far antecedent to that delightful moment as is the workman- 
 like completion of the foundation to the elaborate and costly 
 superstructure that owes to that foundation its stability and 
 strength. The foundation is lost to sight, but never loses its 
 essential value. You are now laying foundations, broad and 
 deep. If they be adequate, and honestly laid, you need not 
 worry about results. You must know the law ; you must know 
 where it is to be found; and you must be convinced that, 
 barring some lamentable statutory expressions of the public 
 will, the law is common sense. 
 
 3 
 
The profession of the law is, we are told, at times, in danger 
 of being commercialized, of being looked upon as a mere busi- 
 ness. Such men as James C. Carter and Adlai Stevenson have, 
 in commenting on the lessening influence of the lawyer in 
 public life, attributed it to the increasing disposition of able 
 men to place themselves exclusively at the disposal of great 
 industrial enterprises. But, even if this be true, it is only the 
 more imperative that emphasis be, from time to time, laid upon 
 the dignity of the office, without rehearsing the great public 
 services rendered in our own country as well as in the mother 
 country by men learned in the law, entirely outside of the lines 
 of professional duty. 
 
 As Lord Bacon has told us^ " Every man owes a debt to his 
 profession ; " the lawyer is peculiarly under the force of the 
 adage noblesse oblige; and so we, having entered into what 
 Dr. Warren calls " a solemn contract with society at large " 
 [Dr. Emory Washburn's lecture on the Study and Practice of 
 the Law, and the address of the late Samuel Warren before 
 the Incorporated Law Society of the United Kingdom in 1887 
 are well worth reading], and engaged under solemn oath to 
 protect right and redress wrongs, may, not untimely, turn 
 aside, once in a while, from the abstract study of the law, to 
 consider what our relations are to that society as a whole and 
 to members of it in particular. I shall, therefore, consider, 
 first, the relation of the attorney to his client. 
 
 I. The Lawyer's Relations to the Client. 
 
 We have, perhaps wisely, abolished the distinction between 
 solicitors, or attorneys, and barristers, in our practice and in 
 assuming the title "attorney and counsellor-at-law '' we fall 
 heir to all the dignities and honors implied in either title on 
 the other side of the Atlantic. We are members of a learned 
 profession and our education therein is never done. By admis- 
 sion to the bar, we do not cease to be students, but as 
 Dr. Washburn says, we become our own teachers. The word 
 " attorney " is an honorable old English word, and the same 
 plea might be made in behalf of its use here as was made by 
 
 4 
 
Dr. Warren in his defense of the term as contrasted with 
 " sohcitors," which in his day there was a tendency to prefer 
 by those who had the right to both titles. Nevertheless, the 
 term has not been free from reproach because of the ignorant or 
 knavish actions of many lawyers who have used this high 
 office in order to overreach others, or who, from their zealous- 
 ness to enforce the letter of the law, have cast discredit upon 
 the law itself and the profession to which they belong. 
 
 It is a familiar thing, in our day, about the time of law- 
 school commencements, to hear of the number of additional 
 lawyers " set loose to prey upon the community," and similar 
 reflections upon the integrity of the profession date back to the 
 very earliest times. So we find in the Year Book of Edward 
 III., that certain attorneys, being about to go on circuit, 
 "taking water upon the Severn/' their boat was cast away in 
 a storm on the Cumberland coast, and there they were seized 
 as foreign spies, and, before they could secure their liberty, 
 default has been entered in a case in which one of them had 
 appeared. Upon his application to open his default and his 
 setting forth the facts above detailed, the following note is 
 given as having been made by Scarshulls, J. : " It was foolish 
 for the attorney to go on the water and trust to God's taking 
 care of him ; wherefore," the note continues, " he said 
 deliberately that that did not excuse him." With such a 
 judicial reflection on the tenuousness of a lawyer's claim to 
 Divine protection, it is not strange that the lay and the poetic 
 mind should have indulged ad nauseam, in sneers and sarcasms 
 directed at the profession generally. 
 
 In Earle's Microcosmography he finds the attorney "all 
 for money." Overbury describes the pettifogger as promoting 
 quarrels, " and in a long vacation his sport is to go afishing 
 with the penal statutes. He is a vestryman in his parish and 
 easily sets his neighbors at variance with the vicar, when his 
 wicked counsel on both sides is like weapons put into men's 
 hand by a fencer, by which they get blows, he money. Per 
 contra, it was, I read^ but an anonymous writer who gave this 
 
 5 
 
tribute, ' an honest lawyer is the best life guard of our fortune, 
 the best collateral security for an estate, a trusty pilot to steer 
 one through the dangerous, and oftentimes inevitable, ocean of 
 contention; a true priest of justice.' " 
 
 In 1887, in a paper before the Incorporated Law Society of 
 London, Mr. Warren suggested that a history of solicitors 
 should be prepared, and that it would be interesting to include 
 therein, a collection of satires, poems and caricatures relating 
 to attorneys and their ways. 
 
 We jest perhaps unwisely on such topics. But, practically, 
 we do not now endeavor to limit the number of attorneys, 
 viewing them as a dangerous class. But our better policy is to 
 regulate the number of attorneys by increasing the tests of 
 capacity imposed by way of entrance examinations, and we 
 leave to the law of supply and demand the regulation of 
 membership at our Bar, so that we have in Greater New York, 
 almost as many lawyers in practice as were enrolled in the 
 whole United Kingdom in 1848. As far back as 1455, says 
 Mr. Christian in his " History of Solicitors," the Commons 
 petitioned for a statute regulating the number of common 
 attorneys in courts of record in the counties of Norfolk and 
 Suffolk, and in the city of Norwich. The king granted the 
 petition " if it be thought to the judges reasonable." 
 
 It is suggested by Professor Maitland, in his " Social 
 England,'' that the right to appear by attorney sprang at first 
 from the king ; that the king, of course, must appear by others 
 in his courts, and that this right could be conferred upon his 
 subjects, at first as an exceptional favor and afterwards as a 
 general rule, and the learned writer suggests that to the ancient 
 law it did not seem fair that one should put an expert in his 
 place to represent him, remarking, " My adversary has, as it 
 were, a vested interest in my ignorance or stupidity." 
 
 However, our profession needs no vindication to-day. And 
 it is no recent statement, and true now as it was when made, 
 that the manners of the bar " have in every age been such as 
 were the first improved, and the last corrupted." 
 
 6 
 
Considering the attorney as a member of a noble and his- 
 torical profession, bound by many honorable traditions ; sworn 
 as an officer of the court to fidelity in the discharge of his 
 duties, and assuming him to have entered upon the contract 
 relations involved in his retainer to advise a client, or to prose- 
 cute his rights, or to defend them against some invasion by 
 another, we are to consider what these relations may involve. 
 
 The relation of attorney and client is not only a fiduciary 
 relation, but should be one of friendship. The attorney makes 
 many a sacrifice for his client of which the latter never dreams. 
 The remarkably small number of cases in the enormous number 
 of reports which involve disputes between lawyers and clients 
 testifies to the general character of the profession and the 
 remarkable extent, as compared with other occupations in life, 
 to which the attorney faithfully discharges his side of this 
 contract obligation. He devotes all his abilities to his client's 
 case. He throws his influence, personally and professionally, 
 in the scale when negotiations are pending; he endorses his 
 client's character by his own reputation; he stands in his place 
 before the court and pleads his cause ; he asserts a right, which 
 he has agreed to defend, in the face of a sometimes impatient 
 and angry bench. He spends his days and nights in planning 
 for and safeguarding the interest committed to him ; his recrea- 
 tion time is given up without a murmur to please some can- 
 tankerous or exacting client who never thinks of making up 
 to him in any way for clearly extra service. He is patient and 
 courteous to the cranky client who waits upon him at his 
 office day after day and month after month, telling him the 
 same story over and over again for fear his rights may not be 
 adequately remembered or protected. 
 
 Perhaps he assumes the care of feminine interests and im- 
 perils his reputation for professional probity by transactions 
 with women clients who know only credits and abhor debits; 
 and are always anxious to draw, but never to settle; whose 
 memories, perennially refreshed by talking it over with their 
 
 7 
 
friends, are poured into his unwilling ears until reason almost 
 totters on its throne. Never invest for a woman client — 
 send her to a reputable broker. 
 
 On the other hand, how delightful are the usual occupations 
 of the profession and how few of us would, if put to the touch, 
 exchange them for any other ! How interesting the analysis of 
 facts and the application to them of principles of law ; which of 
 us has not had his case (to him of first impressions), and 
 after patient study developed a theory under which he knows 
 that relief can be ultimately secured; what more fascinating 
 occupation than to reduce wrangling contentions or negotia- 
 tions of busy minds to a concise, distinct and intelligible con- 
 tract or other instrument. How exciting is the quick effort 
 under pressure to determine a question accurately and satis- 
 factorily when a time limit is set by necessity or by the im- 
 patience of a client. How engrossingly delightful is the chess 
 game of actual trial or the fencing match of counsel's argu- 
 ments ; how pleasant is the sense of power to grasp details and 
 reduce them to an orderly consistent sequence which comes 
 with experience, and which in time gives to consultation an 
 element of real pleasure. The beauty of these professional 
 delights is that they can be felt in a lesser degree, but still to 
 some extent by every lawyer from the time of his first experi- 
 ence. They come to him in varying forms and in increasing 
 degree as the years go on. 
 
 But the condition precedent to the enjoyment of all these 
 pleasures by the lawyer is the possession of a client. He, 
 therefore, who does anything to disturb the friendly and inti- 
 mate relations existing between himself and his client, whether 
 it be caused by impatience of temperament or dishonesty of 
 character, is false to the duties laid upon him. The client, 
 brethren of the bar, is not only the source of your professional 
 income, but is the very foundation of your professional 
 happiness 
 
 The lawyer should look upon the relation of attorney and 
 client as something expected to have the gift of continuance, 
 to be cultivated as friendships should be, at least for two lives 
 
 8 
 
in being, and not as a mere cow, to be milked as by a tramp, in 
 passing. The writer had an experience some years ago, which 
 he forwarded to the "Albany Law Journal," which he may be 
 pardoned for quoting : 
 
 One who had at one time occupied a chair in one of 
 our law schools met some years later one of his former 
 pupils. He inquired of him how he was getting along, 
 to which the young man rejoined : 
 
 " I ain't complainin', I'm catchin' suckers." 
 
 He then proceeded to dilate upon a fee of $1,500 which 
 he had recently realized through the organization of a 
 small corporation. The ex-professor commented on the 
 disproportion of the fee to the services rendered, and 
 offered the fatherly advice that he could hardly expect 
 to retain the business of a corporation so substantially 
 milked at the outset. 
 
 The answer was prompt : 
 
 " I don't expect to get any more business from them, 
 professor; I does mostly a transient business." 
 
 As long as you practice law you will find the preliminary 
 retainer and the contingent fee the Scylla and Charybdis 
 between which it is hard to steer your professional bark. I 
 have no hesitation in asserting that the contingent fee is 
 chiefly reprehensible, not to the public, but to the profession. 
 Disregarding the " ambulance-chaser," and the man who is all 
 but guilty of champerty in soliciting litigation and promoting it 
 and persuades the client to litigate by telling the client that it 
 will cost him nothing unless he is successful, it is manifest 
 that the ordinary decent practitioner can only view the con- 
 tingent fee with dislike. A contingent fee is a promised com- 
 pensation for services to be rendered payable out of a recovery 
 and only in case of recovery, therefore the attorney has to 
 devote himself to the work committed to hiin without retainer 
 or " refresher " during the trial, appeal, possible new trial and 
 further appeals. It may be a matter of two, three or four 
 years before he can have the handling of his compensation, 
 
 9 
 
and should the case fail, because of his client's inability to 
 bring forward adequate testimony or because his story may 
 break down on cross-examination, he has had his labor for his 
 pains. 
 
 Still eliminating the dishonest practitioner, who solicits this 
 kind of business, it is a suspicious circumstance, from the 
 lawyer's point of view, when the client asks that he take a 
 case upon a contingent fee. There is always a possibility that 
 there is some doubt on the client's part as to the justice of his 
 case. Where it has its origin in the stinginess of his client, 
 it is almost equally disadvantageous to make such an agree- 
 ment. But where it has its origin in the poverty of the client, 
 the whole view of the situation is changed, and it may then be 
 the duty of the attorney to take the case and to contract with 
 the client for taking a fee contingent upon success, with all the 
 possibilities of never being paid for the services to be rendered, 
 from a sense of conscientious discharge of professional duty 
 to the community. 
 
 Lawyers of the highest standing make agreements of this 
 character. In a very famous negligence case (Laidlaw v. 
 Sage, 158 N. Y., 73, etc.), the plaintiff was represented by a 
 firm headed by a former presiding justice of the Supreme 
 Court, and the most distinguished trial lawyer of the day was 
 retained as counsel. It arose out of a peculiar explosion in a 
 down-town building in which the plaintiff claimed he had, 
 while in ignorance of the threatened danger, been dragged in 
 front of the person threatened, with the result that he was 
 removed from a place of comparative safety to a place of 
 danger and was severely injured, and that Ws body being used 
 as a shield, saved the life of the one by whom he had been 
 seized. This case was tried before a jury four times resulting 
 in a dismissal of the case on the first trial, a reversal on appeal 
 by the Appellate Division, a second trial with a substantial 
 verdict, a second appeal and a new trial ordered for erroneous 
 charge to the jury, a third trial with a disagreement, a fourth 
 
 10 
 
trial resulting in a still larger verdict and an affirmance by the 
 Appellate Division, and finally a new trial ordered by the 
 Court of Appeals. 
 
 The plaintiff was poor and without means, wrecked in 
 health, and those attorneys, whose professional ethics were of 
 the highest character, made an agreement in writing for fifty 
 per cent, of the recovery, and in the end got nothing. 
 
 A year or so ago I sent to the New York Law Journal a 
 copy of an agreement made by Daniel Webster to argue the 
 Girard will case in the Supreme Court of the United States 
 on a contingent fee. 
 
 Many accident cases where poor people are mown down by 
 rapid transit facilities in our crowded cities are without relief 
 in the absence of the contingent fee. 
 
 It is for the good sense of the profession, safe-guarded by 
 wise judicial interpretation of such agreements in the light of 
 all the facts in each case, to determine what percentage shall 
 be specified as compensation in any particular case, and it 
 makes a clear demand upon the honor of the lawyer, to whom 
 the testimony is presented, and by whom a very fair estimate 
 of the chances of success can be made, to fix the amount for 
 which he is willing to undertake a litigation, and when he has 
 stated the rate of compensation he will require and the client 
 executes an agreement for that per cent., the agreement ought 
 to be strictly enforced in the absence of fraud and over- 
 reaching. It is wholly unreasonalale to say that a fifty per 
 cent, agreement is unconscionable on its face, as has been done 
 in several recent cases in State and Federal courts. It cannot 
 be said, moreover, that the amount of the percentage neces- 
 sarily depends upon the amount in controversy. In an accident 
 case, the plaintiff may want to sue for $25,000 when the 
 attorney knows that it will be difficult to get a verdict for 
 $2,500. The amount in controversy in such cases is based on 
 the amount of the verdict when collected, and if the agreement 
 is made solely with reference to the amount demanded, it will 
 prove meagre indeed when computed upon the basis of the 
 
 ir 
 
amount recovered. Nor is it fair, in the absence of peculiar 
 conditions, to apply the test of a quantum meruit to a written 
 agreement for a fixed percentage ; unless there be fraud in the 
 inception of the agreement, the client should be held to pay 
 that which he has agreed to pay with his eyes open. 
 
 The writer does not wish to be understood to be an advocate 
 for the contingent fee. Personally he cannot too strongly 
 deprecate the practice. It is not productive of anything but 
 trouble and dispute. The laborer is worthy of his hire and a 
 moderate retainer and reasonable refreshers from time to time 
 cement the relation of the attorney and client, preventing 
 misunderstanding and often facilitating settlement of a case 
 when the client realizes the costliness of litigation. 
 
 But as an officer of the court the attorney is now, by statute, 
 protected in respect to his compensation, and it is profitable to 
 get a clear idea of the statutes thereby created. 
 
 In Fisher-Hansen v. Brooklyn Heights R. R. Co. (173 N. Y., 
 492), Vann, J., observes, reviewing the subject: 
 
 " The law has made great progress in protecting mem- 
 bers of the bar since Blackstone wrote that ' a counsel 
 can maintain no action for his fees, which are given not 
 as locatio vel conductio, but as quiddam honorarium ; not 
 as a salary or hire, but as a mere gratuity, which a 
 counselor cannot demand without doing wrong to his 
 reputation.' (Chase's Blackstone [3d ed.], 630.) It 
 seems strange to the lawyer of this generation to read the 
 report of a case decided as recently as 1841, in which those 
 eminent lawyers, Samuel Stevens and Peter Cagger, as 
 co-partners, had sued their client to recover the sum of 
 $300 for arguing two cases in the Court of Errors. 
 (Stevens v. Adams, 23 Wend., 57; affirmed sub nam. 
 Adams v. Stevens, 26 Wend., 451.) It was gravely 
 argued for the defendant ' that, at common law, a counselor 
 cannot maintain an action for his fees ; ' that ' such is 
 undeniably the law of England, and in this State it has not 
 been held otherwise, the question never having been 
 directly brought up for adjudication.' 
 
 12 
 
" It was held, however, without dissenting vote either 
 in the Supreme Court or the Court of Errors, that the 
 action would lie, although there was no reported precedent 
 in this State to justify it. Chancellor Walworth, writing 
 for the Court of Errors, declared that he had no doubt 
 ' that, by the law of this State, as it has always existed 
 from the time of its first settlement, the lawyer, as well as 
 the physician, was entitled to recover a compensation for 
 his services ; and that such services were never considered 
 here as gratuitous and honorary merely.' Judge Cowen, 
 for the Supreme Court, said that, as he understood, ' there 
 has been a case, perhaps several cases, in this court wherein 
 counsel have been allowed to recover of the clients argu- 
 ment fees on a quantum meruit.' " 
 
 Thus, within the memory of lawyers now living, the right of 
 counsel to recover compensation from their clients, outside of 
 the fee bill, was challenged at the bar, and elaborately discussed 
 by the bench, three opinions having been written in the court 
 of last resort to show that the right existed. There has been a 
 marked advance since then, mainly through the legislature, 
 which has been generous to members of the legal profession, 
 not only in costs and allowances, but also in providing a lien 
 upon the subject of the action to secure their compensation. 
 
 When the Code of Procedure was enacted in 1848, the fee 
 bill was abolished, all restrictions upon '"the right of a party 
 to agree with an attorney, solicitor or counsel, for his compen- 
 sation " were repealed, and the measure of such compensation 
 was thereafter " left to the agreement, express or implied, of 
 the parties." (Laws 1848, chap. 379, sec. 258.) 
 
 In 1876, when the first part of the Code of Civil Procedure 
 was passed, the only regulation upon the subject was the 
 following : 
 
 " The compensation of an attorney or counsellor for 
 his services, is governed by agreement, express or implied, 
 which is not restrained by law." (Laws 1876, chap. 448, 
 sec. 66.) 
 
 13 
 
While this statute was in force a case arose wherein the 
 plaintiff sued a railroad company for damages owing to per- 
 sonal injuries caused by its negligence. He made a written 
 agreement with his attorney to give him one-half of the 
 recovery for prosecuting the action and paying the expenses. 
 After the commencement of the action the defendant, with 
 notice of the facts, settled with the plaintiff by paying him 
 $i,ooo, and it was held by the Court of Appeals that, as the 
 cause of action was not in its nature assignable, the party 
 could not by any agreement before verdict or judgment give 
 his attorney an interest therein, and that the settlement was a 
 bar to the action, notwithsanding the agreement that the 
 attorney was to receive a share of the recovery. (Coughlin v. 
 N. Y. C. & H. R. R. R. Co., 71 N. Y., 443.) 
 
 After this decision, and doubtless owing to it, said section 
 was amended by adding at the end thereof the following: 
 
 "From the commencement of an action or the service 
 of an answer containing a counterclaim, the attorney who 
 appears for a party has a lien upon his client's cause of 
 action or counterclaim, which attaches to a verdict, report, 
 decision or judgment in his client's favor, and the pro- 
 ceeds thereof in whosoever hands they may come; and 
 cannot be affected by any settlement between the parties 
 before or after judgment." (Laws 1879, chap. 542, page 
 617, sec. 66.) 
 
 In 1899, the section was further amended by making it apply 
 to a special proceeding, extending the lien to a claim as well 
 as a cause of action and a counterclaim, and providing a 
 remedy to determine and enforce the lien upon the petition of 
 either attorney or client, so that the section in its present form 
 is as follows: 
 
 " The compensation of an attorney or counsellor for his 
 services is governed by agreement, express or implied, 
 which is not restrained by law. From the commencement 
 of an action or special proceeding, or the services of an 
 answer containing a counterclaim, the attorney who 
 
 14 
 
appears for a party has a lien upon his cHent's cause of 
 action, claim or counterclaim, which attaches to a verdict, 
 report, decision, judgment or final order in his client's 
 favor, and the proceeds thereof in whosoever hands they 
 may come; and the lien cannot be affected by any settle- 
 ment between the parties before or after judgment or final 
 order. The court, upon the petition of the client or 
 attorney, may determine and enforce the lien." (Laws 
 1899, chap. 61, page 80, sec. i ; Code Civ. Pro., sec. 66.) 
 
 Thus, we have a statute gradually progressing in one direc- 
 tion, which has required more than half a century for its 
 development. It consists of only three sentences, but each has 
 been the subject of one or more independent enactments 
 intended to protect attorneys and enable them to collect pay 
 for their services. The first establishes freedom of contract 
 between attorney and client with reference to the compensa- 
 tion of the former. The second and most important gives the 
 attorney a lien upon his client's claim and cause of action, and 
 when the cause of action is merged in a verdict, report, decision 
 or judgment, the lien attaches to that also as well as to the 
 proceeds thereof, so that it cannot be affected by a settlement 
 made between the parties at any stage of the action. The third 
 provides a new remedy : In a course of these lectures before 
 the Dwight Alumni Association of New York, I was able to 
 discuss in detail illustrative cases under these various heads; 
 but we cannot do more in this short hour than to summarize the 
 matter concisely, by typical instances : 
 
 Case A. Insolvent Client. — Settlement behind attorney's 
 back, e. g., as by satisfaction of judgment secured. Lawyer 
 protected by lien under section 66. Lien is notice to adversary. 
 Court will entertain application to vacate satisfaction, and will 
 issue execution in aid and to extent of the lien. (As in Peri v. 
 New York Central, 152 N. Y., 521.) 
 
 Case B. Attorney Receives Proceeds of Litigation. — Dis- 
 pute with client as to amount of fees. Client has a summary 
 
 15 
 
remedy under section 66. On his petition that the attorney pay 
 over, the court will ascertain and determine the amount 
 respondent is entitled to retain. 
 
 It must be remembered that the courts insist on the client's 
 unimpaired right to agree to settle his cause of action, and 
 that it insists equally on the attorney's sustaining the burden 
 of showing his good faith and honesty in his agreement or 
 dealings with his client ; but not because it entertains any ante- 
 cedent presumption of its officers' dishonesty of act or purpose, 
 but simply because it is zealous of his reputation, and confident 
 of the honest practitioner's ability to sustain such a burden. 
 
 In passing, we must note that the ethics of the profession 
 forbid the soliciting of business or the promotion of litigation. 
 Some practitioners of standing sail pretty close to the wind, 
 while avoiding the charge of ambulance chasing. Recurring to 
 our figure of " hare soup," the attorney is actually prohibited 
 from first catching his hare. And as you sit in your humble 
 office listening to those disappointing footsteps in the hall that 
 always seem to stop just short of your door, or after an 
 exhilarating moment, to pass on to the door beyond your own, 
 you are left to think in your discouragement that your profes- 
 sion is to be likened to that of a spider, who having spread his 
 web must wait for his prey to be entangled therein. 
 
 This is a character problem, and the answer to it is obvious. 
 The ethical difficulty is presented in the temptation to induce 
 business by promises of compensation. We comment briefly, 
 therefore, as to champerty and maintenance. Maintenance is 
 the larger term and implies officious intermeddling in the 
 litigious affairs of another assisting in the prosecution or 
 defense. The assistance may be with money or otherwise. 
 The offense originally was against the common-law rule that 
 rights of action were not transferable and was directed against 
 the custom of transferring these rights to influential persons 
 to obtain their support and favor, and as the rule as to the 
 assignability of causes of action has been greatly relaxed, so 
 has the doctrine been much mitigated. 
 
 i6 
 
Champerty is a species of maintenance. The name is derived 
 from campUM partire, which means to divide the subject 
 matter of the suit involved, and originally involved an agree- 
 ment by the party officiously intermeddling to carry on the 
 litigation at his own expense. This rule to carry it on at one's 
 own expense is not insisted upon as an essential condition in 
 all the states. There can be maintenance without champerty, 
 but there can not be champerty without maintenance. 
 
 The New York statute against champerty and maintenance 
 is penal. Section 7 of the Penal Code makes it a misdemeanor 
 to violate either of the two preceding sections. It is, therefore, 
 essential to note further that the offense rests in intention, and it 
 is, therefore, submitted that the burden of proving the officious 
 or intermeddling intent rests upon the one alleging it. 
 
 The lengths to which the courts have gone in mitigating the 
 rule, in view of the disappearance of the original reason for 
 the rule, can be found in decisions that any interest whatever 
 in the subject matter is sufficient to exempt one giving aid in 
 the litigation from the charge of illegal maintenance. So that 
 contingent, reversionary, equitable or common interests entitle 
 one to assist in a litigation ; those related by kindred or affinity 
 or marriage ; those who have some privity of estate, as landlord 
 and tenant, or mortgagee or vendor under warrant may 
 encourage the litigant without violating the statute. 
 
 It may be noted, of course, that the element of maintenance is 
 entirely eliminated when an attorney takes for his fee an 
 interest in a cause of action reduced to judgment, and even 
 where contracts have been held champertous, except in flagrant 
 cases, the courts have constantly upheld the attorney's right at 
 least to a quantum meruit for the services rendered. As to 
 champerty, in the Fitzsimons case (174 N. Y., 15), an attorney, 
 acting in utter good faith, was adjudged to be guilty of cham- 
 perty, which is a misdemeanor; and had the Court of Appeals 
 held that the order was not appealable, his reputation and busi- 
 ness might have been ruined. I suppose there are few of us 
 who have not taken cases without any definite understanding as 
 to disbursements, and have actually made disbursements in the 
 
 17 
 
case, and sometimes upon rendering a quarterly statement 
 thereof to our clients have not been reimbursed. This, of 
 course, is not champerty — but go a step further ; there are 
 some offices which with well-known clients may say, that they 
 will render him a statement later of the expenses of the litiga- 
 tion, which they will defray from their office account as they 
 arise. This, certainly, is not champerty, although the result 
 may be that the attorney is actually carrying the expenses of 
 the litigation. The statute in the premises is contained in 
 section 74 of the Penal Code, which is as follows : 
 
 "An attorney or counsellor shall not, by himself, or by 
 or in the name of another person, either before or after 
 action brought, promise or give, or procure to be promised 
 or given, a valuable consideration to any person, as an 
 inducement to placing, or in consideration of having 
 placed, in his hands, or in the hands of another person, a 
 demand of any kind, for the purpose of bringing an action 
 thereon. But this action does not apply to an agreement 
 between attorneys and counsellors, or either, to divide 
 between themselves the compensation to be received." 
 
 The intent of this statute is clear. There must be a solicita- 
 tion by the attorney of the business and an agreement to give 
 something or cause something to be given in consideration of 
 getting it, and this statute must be reasonably construed. 
 
 In Fowler v. Callan (102 N. Y., 395, 398), the attorney, 
 retained to recover a devisee's interest in an estate, took a deed, 
 by way of compensation, of one-half the property to which the 
 client believed himself to be entitled. It did not appear in 
 that case whether he was in jxjssession or not. The attorney, 
 on his part, covenanted " to conduct the defense to a close, 
 paying all costs and expenses of the litigation, and indemni- 
 fying the devisee against all such liability." Yet the Court of 
 Appeals, then consisting of Ruger, Ch. J., Andrews, Rapallo, 
 Miller, Earl, Danforth and Finch, JJ., concurred in holding 
 the agreement " one solely for compensation, contingent, to be 
 sure, and contemplating success." 
 
 18 
 
In the Fitzsimons case {supra), the Appellate Division has 
 held that a part of the consideration for the fifty per cent, 
 agreement covering his fees, was a promise by the attorney to 
 pay out of his own compensation whatever was due or should 
 become due to the former attorney for legal services, and dis- 
 charging the client from all Hability to such former attorney. 
 The court then goes on to say, " although there is no express 
 language in the agreement by which the attorney is to pay the 
 costs and disbursements that might be incurred in the litigation, 
 it is significant that the agreement did not expressly impose that 
 obligation on the client." If the agreement was silent on this 
 point, it is submitted that it left the obligation for costs and 
 disbursements just where the law lays it, on the client. The 
 court cited Badger v. Celler (41 App. Div., 603), where it had 
 observed that an agreement by the attorney to pay disburse- 
 ments would have been void if made; that the client would in 
 any event be responsible for such disbursements to the attorney. 
 However, the Court of Appeals cited and followed the case of 
 Fowler v. Callan (above), in which case the attorney had 
 agreed to indemnify the client against all expenses of the 
 litigation. Badger v. Celler is interesting for the side light it 
 throws on contingent fees, because there the fee was con- 
 tingent upon success, and the agreement provided that if the 
 attorney failed to collect, he was to receive nothing, and he 
 died before recovery in the suit, and his estate sued on a 
 quantum meruit. Held, that in the absence of proof of such a 
 recovery, the attorney's estate was not entitled to any com- 
 pensation for the services rendered. "A word to the wise is 
 sufficient." That is, the contingent agreement may amount to 
 an assignment of an interest, as in Bennett v. Donovan (83 
 App. Div., 95), or it may entitle the attorney to nothing except 
 out of the actual proceeds, or it may be so loosely drawn as to 
 be set aside altogether. 
 
 Sections 73 and 74 of the Penal Code relating to Champerty, 
 viz., the purchasing of claims for the purpose of suing thereon 
 or to promising a consideration for the purpose of having a 
 matter placed in one's hands, were carefully passed upon in 
 
 19 
 
Fowler v. Callan (supra) . The court held that sections 73 and 
 74 forbid : "First, the purchase of the obligations named by an 
 attorney, for the purpose and with the intent of bringing a 
 suit thereon; and, second, any loan or advance or agreement 
 to loan or advance as an inducement to the placing, or in con- 
 sideration of having placed in the hands of such attorney, any 
 demand for collection." The statute, says Judge Finch, " con- 
 templates a case in which the action might never have been 
 brought but for the inducement of a loan or advance offered 
 by the attorney, or in which the latter by officious interference 
 procures the suit to be brought and obtains a retainer in it." 
 
 In the matter of disbarment the history of the power of the 
 courts over attorneys is very interestingly set out in the argu- 
 ment of Theodore W. Dwight before the Court of Appeals, 
 reported in Matter of Cooper (22 N. Y., 67), which is well 
 worth reading. The right of the Supreme Court, through its 
 Appellate Division, to control members of the bar after admis- 
 sion, is now a matter of statute, and is contained in section 67 
 of the Code of Civil Procedure, which reads as follows : 
 
 "An attorney and counsellor, who is guilty of any deceit, 
 malpractice, crime or misdemeanor, or who is guilty of any 
 fraud or deceit in proceedings by which he was admitted 
 to practice as an attorney and counsellor of the courts of 
 record of this State, may be suspended from practice, or 
 removed from office by the Appellate Division of the 
 Supreme Court. Any person, being an attorney and 
 counsellor-at-law, who shall be convicted of a felony, shall, 
 upon such conviction, cease to be an attorney and coun- 
 sellor-at-law, or to be competent to practice law as such. 
 Whenever any attorney and counsellor-at-law shall be 
 convicted of a felony, there may be presented to the 
 Appellate Division of the Supreme Court a certified copy 
 of the judgment of such conviction, and thereupon the 
 name of the person so convicted shall, by order of the 
 court, be stricken from the roll of attorneys. Upon a 
 reversal of such conviction, or pardon by the president of 
 
 20 
 
the United States or governor of this State, the Appellate 
 Division shall have power to vacate or modify such order 
 or debarment." 
 
 This section is the present amended and elaborated form of 
 I Revised Statutes, 109, section 24. The practice is to present 
 affidavits or other papers containing the charge to be investi- 
 gated to the court, which will, if the charges are sufficient, 
 proceed of its own motion. (Matter of Brewster, 12 Hun, 109.) 
 For it is the duty of the court to cause such charges to be pre- 
 ferred if it is satisfied from the papers presented or from what 
 takes place in its presence, that the ends of justice so require. 
 If the court is so satisfied it will make an order to show cause, 
 either of its own motion or on the papers presented to it, which 
 must be served upon the attorney personally. The papers 
 alluded to are not evidence. They merely serve the purpose of 
 pleadings. On the trial the ordinary rules of evidence must be 
 observed. It was held in Matter of an Attorney (i Hun, 321), 
 that as the proceeding is penal, the charges must be sustained 
 free of serious doubt. In Matter of Randal (158 N. Y., 216), 
 the attorney under charges refused to testify, and the court, 
 affirming 34 App. Div., 631, held that the proceeding was not 
 criminal, and, therefore, the statutory rule that there was no 
 presumption from his refusal did not apply, and that as to 
 matter as to which he must have had personal knowledge and 
 failed to contradict, there was a legal presumption that they 
 were true. It will be noted that the court has power either 
 to suspend for a period of months or years or to disbar entirely. 
 
 The right given by section 67 to reinstate an attorney who 
 has been pardoned, does not compel the court to reinstate him, 
 for it is manifest that while ordinary reputation and pro forma 
 letters from persons in good standing are sufficient evidence of 
 good moral character for the purpose of primary admission, 
 the fact that an officer of the court, presumed to know the law, 
 has committed the crime and been guilty of serious breach of 
 trust, compels the court to be more careful in once more en- 
 dorsing him to invite the confidence of the public. 
 
 21 
 
It is manifest that the lawyer's relations to the community 
 grow out of his relations to his client and to the court. They 
 involve also his relations to his fellow lawyers. The obligations 
 he is under to society at large by reason of his oath, put him 
 within the category of those to "whom much has been given 
 and of whom, therefore, much will be required." It seems 
 elementary that the lawyer should stand always for obedience 
 to law, respect to the Constitution, and vindication of the rights 
 of man. Yet recently a case was reported of a lawyer who was 
 stricken from the rolls because he had taken part in a lynching. 
 What a pitiable spectacle ! 
 
 The lawyers differs from other citizens only in the degree 
 of conscientious observance of the law which is expected from 
 him. Every one is presumed to know the law. Fortunately 
 for the profession, this is not true in fact of every man; un- 
 fortunately for the profession, it is also not true of every lawyer. 
 But he should, at least, have a wholesome respect for the law, 
 for in spite of the refinements, distinctions, modifications and 
 disagreements recorded in our reports, there are great golden 
 threads of principle running through the texture of statute- 
 made and judge-made law easily discernible by the trained eye. 
 These mark the costliness and value of the fabric which has 
 taken so long to weave. Now if there come to your knowledge 
 cases of willful refusal to discern, to recognize or to properly 
 value these principles on the part of some fellow member of the 
 bar, what are we to do? 
 
 Every lawyer is interested in every other lawyer's relations 
 to the community. If, to his knowledge, his competitor is 
 dishonest, shall he good naturedly and contemptuously let the 
 matter pass; or shall he, jealous of the honor of his profession, 
 assume the burden of purging the bar of its unworthy member ? 
 And if he determine to do the latter, shall he apply to a bar 
 association or immediately to the Appellate Division ? And is 
 it worth while to incur the odium and expense of what is sure 
 to be considered by many a persecution? Few of us have the 
 courage to face certain misunderstanding. 
 
 22 
 
It seems that the matter of disbarment ought to be the 
 peculiar province of the local bar association through its com- 
 mittee on grievances and special counsel. It ought not to be 
 astute to impute dishonesty or to charge improper practice on 
 the complaint of any attorney still smarting under a sense of 
 outrage. But it can sift the matter more at leisure, and it 
 ought to take up every case, regardless of the magnitude of the 
 offense, or the offender's membership in its body. Prevention 
 and cure have the same ratio here as elsewhere. Activity for 
 one year in purging work would accomplish wonders. 
 
 In one sense this is the highest service our bar associations 
 can render. Put in the knife — the surgical operation is the 
 safeguard of the life of the profession. And do not worry too 
 much about the use of the anaesthetic " private hearings." 
 Publicity is the most deterrent element. Be sure you are right, 
 of course — but then go ahead. 
 
 The addresses before our city. State and national bar associa- 
 tions, always printed, adequately cover the field in regard 
 to the great service the bar renders collectively to the com- 
 munity in influencing and shaping legislation. 
 
 Individually many lawyers, busy, driven or plodding at their 
 professional work, find or make time to contribute for the 
 general information of the community, the result of their 
 investigations or meditations on some particular point of public 
 interest. Such papers or addresses are always of value, for if 
 they propose a solution or remedy for some abuse or defect, and 
 it be the correct one, they have done a great service ; if it be an 
 incorrect one, its publication is sure to arouse comment, pro- 
 voke answer and discussion, and thus elicit the right solution 
 or remedy. 
 
 Much need not be said of the lawyer's duty as a citizen. 
 It is his duty as a man first of all. Perhaps it is more attractive 
 to him because he is a lawyer. Certainly if he is well informed 
 and trained he can be of invaluable service. But let him not 
 enter politics as a lawyer, but as a man, that is, let him not 
 accept the first political retainer — and take a side because it 
 
 23 
 
pays — let him form and then hold convictions and keep in 
 the back ground hopes of any reward — only thus can he 
 maintain his self-respect and expect permanent political 
 influence. 
 
 If we but had a real diplomatic service, as does Great 
 Britain, so that men, trained in constitutional law and history,^ 
 entering at the bottom, could work up through consulate to 
 attache, and thence to a ministry or embassy, it would be a 
 career where service would count and training would tell, a 
 fascinating field for the lawyer to enter. But with things as 
 they are, the strone men fear to drop practice for several years, 
 lest they be bundled out neck and crop by a change of party 
 preponderance, and then come back to begin anew with clients 
 scattered. Only wealthy or very ambitious men can well 
 afford so to turn aside from the profession — except at its 
 close, when a permanent injunction has been secured against 
 the " wolf at the door." 
 
 Lawyers have relations with one another apart from the 
 exceptional disbarment case. I refer to the relation of 
 opponents in a case and of consulting counsel to the attorney 
 of record. Whatever our identification of barrister and 
 solicitor may be in law, custom and developing conditions are 
 erecting the old difference again. Some men are peculiarly 
 qualified to try a case before a jury, others to present an argu- 
 ment on appeal. Others are wise in the consulting office, 
 others are cunning draftsmen of unbreakable instruments. A 
 few are ready to try every form of professional work, and a 
 very few are equal to such diverse demands. 
 
 The wise attorney knows when to retain counsel. It is a 
 penny-wise lawyer who fears it will' affect his income to do 
 so. Do all you can yourself, of course, and do it yourself, and 
 not by a clerk, but never discourage a client who suggests 
 apologetically that an opinion be taken. If your opinion, 
 already given, or your proceedings, already had, are approved 
 by the great man who nonchalantly pockets in an hour as much 
 as you have had to date, your client's confidence is cemented. 
 If he sets right some oversight or error you have made, you 
 
 24 
 
can only be thankful; the knowledge you thus gain is well 
 worth the price in pride lost. Counsel of to-day are uniformly 
 of such high character that no attorney need fear larceny of 
 his client. Some cases of desertion by the client do occur, but 
 the cause antedates the counsel fee in nearly every case. 
 
 Counsel owe a clear duty to attorneys who consult them per- 
 sonally, or as representing clients. And first of all they owe 
 the duty of personal attention to the matter advised about. 
 You and I can brief the law or hire a ten-dollar-a-week clerk 
 to do so. We do not care to pay counsel's fees for a brief 
 prepared by his ten-dollar-a-week clerk, and signed by him 
 after a rapid perusal. We want his estimate of the situation, 
 his advice as to the course to pursue. So here the attorney 
 can often economize time and fees by the care and complete- 
 ness with which he submits a matter to counsel. But if you 
 are unequal to briefing a case properly yourself don't subject 
 ■counsel to the labor of blue penciling or amputating your work. 
 Pay him to write as well as argue the brief. But don't hesitate 
 to urge your views upon him. You have sat up nights with 
 your case. You see the importance of some inconspicuous 
 fact. Don't be too modest in presenting the strongest argu- 
 ments you can make, because you are diffident in face of his 
 reputation. He may "pooh pooh" it at first; but if it be 
 meritorious, he cannot forget it, and may make more of it in 
 the end, because the idea has been forced upon him. He is 
 able, that is why you retain him. But he is fallible, that is why 
 you must not depend wholly on him. It is still your case and 
 your client. Nor will good counsel seek to eclipse you, or 
 refuse your work recognition. His standing is assured — he 
 can afiford to be, and generally is, generous. 
 
 Be sure your counsel is paid. Protect him, as the 
 broker protects his bank. Never ask counsel to share his fees. 
 It is an impropriety for him to accede to your request, and 
 it is indecorous and unprofessional in you to suggest it. 
 
 What shall my relations to my adversary be? Shall pro- 
 fessional antagonism in a law suit end fraternal relations ? The 
 
 25 
 
converse of the proposition is, shall the fact that the lawyer 
 on the other side is my personal friend, require my granting 
 every favor he may ask. 
 
 Sometimes the bitter feeling engendered by litigation be- 
 tween clients proves contagious and professional friendships are 
 broken on the anvil of forensic strife. Two lawyers, once 
 friends, but thus embittered against each other, may be con- 
 spicuously courteous to each other in court, and so far as 
 practice goes their clients get their money's worth. But friend- 
 ships are too rare to so sacrifice. Common sense is a cure-all, 
 and memory a preventive. You can be true to your client, and 
 fence with your friend. The advantages of knowing your 
 adversary as a man to be trusted is that there is more certainty 
 of getting together in a settlement when the first excitement of 
 the suit is over. You can trust one another in your respective 
 statements of facts. Your friendships will enable you to bear 
 being set right on the facts, if mistaken, without loss of self- 
 respect. You can be of invaluable service to your client if 
 you can show your antagonist that he is on the wrong tack. 
 
 Settling a case out of court is the triumph of the attorney. 
 It lessens his income at times, but it doubles his usefulness. 
 Once he is known as a great man to settle disputes his pecuniary 
 future is secure. But as Noah Davis once said, " If you have 
 to fight — fight," which being interpreted means, put on 
 the whole armor of the Code, motion, provisional remedy 
 and all ; compel a definite statement of the issues — perpetuate 
 fleeting testimony; secure the corpus by attachments if you 
 have to — or can; keep in touch with witnesses. Keep the 
 other side on the jump; don't practice for costs, but collect 
 them when awarded. They have an aperient effect on the 
 mind and pocket of the enemy. Be prompt and punctual. All 
 this is consistent with giving every professional courtesy 
 required, that does not imperil recovery. Go easy on stipula- 
 tions. Let your negotiations be without prejudice, if in 
 writing. If you issue execution — jog the deputy. If you 
 
 26 
 
examine in supplementary proceedings remember it is a fine art 
 and better left alone than bungled. A debtor once graduated 
 from this pons asinorum is practically execution proof. 
 
 Another point may be commented on: There is a class of 
 lawyers sometimes complained of, known as " pumpers." We 
 all have our circle of friends with whom we delight to wrangle 
 over questions coming up in daily practice, and we often get 
 valuable hints and help from each other's treasury of experi- 
 ence. That, however, is the " give and take " of friendship and 
 in no way to be criticized. It leads often to mutual retainers, 
 and aside from the question of friendship it pays in various 
 ways. But the " pumper " is not so. He is even as the hypo- 
 crites are. He ringeth you up on the 'phone. He says, — to be 
 concrete, " I see on page — of your book that you say so and 
 so must be cited on a proceeding to sell decedent's real prop- 
 erty for the payment of his debts. Now I have a case," which 
 he proceeds to detail. " What would you advise me to do ? " 
 I have found the best answer and the most final to be, " I 
 advise you to retain counsel at once." He rings off 
 promptly. It is worse than tapping wires. It is petty lar- 
 ceny of the brain. And yet many do it under guise of a 
 friendly letter containing an apparently innocent note of a 
 case, exciting our interest and opposition, and frequently one 
 falls into the trap, takes issue on the point, citing triumphantly 
 a case one knows to be conclusive, and later on realizes that 
 virtue has gone out of him, and his bank account none the 
 richer. " Sweet are the uses of adversity." 
 
 Gentlemen, we cannot afford to take any but high ground. 
 The law is like a rose-diamond with many gleaming facets 
 reflecting vari-colored lights according to the angle from which 
 we view it, and the degree of light which is shining upon it; 
 and one's attitude to the law depends not only, therefore, upon 
 the angle of vision from which he views it, but also on the 
 condition of his vision. 
 
 One man assents to the proposition that the law is a jealous 
 mistress, that she must be served with exclusive and untiring 
 devotion, and he is never weary of studying her every whim; 
 
 27 
 
another's connection with the law is that merely of a " manage 
 de convenance." He expects his rich wife to support him and 
 pays her just so much attention as on dividend days will ensure 
 his receipt of funds to cover his expenses. Another's relation 
 to the profession reminds one of the mixed and only occasion- 
 ally intimate affection which is commonly said to exist between 
 a man and his mother-in-law. He enters knowingly into the 
 relation, but does not care how soon it may terminate, so far 
 as his personal relation is concerned. It reminds us of the 
 man whose better half said to him in great excitement one day, 
 " Mamma has decided to be cremated," to which he rejoined, 
 "All right, tell her to get her bonnet and we will go right down 
 to the furnace." 
 
 Some enter the profession as a stepping stone. They evince 
 no real affection for it and never trouble themselves to get into 
 touch with the higher conceptions of duty and obligations 
 which the thoroughbred lawyer is never without. They have 
 studied law to complete an education ; or because they think that 
 the knowledge of it will help them to secure some more lucra- 
 tive commercial position. Those of us who have embraced the 
 law for better or worse, for richer or poorer, cannot afford not 
 to take high grounds. We must keep our standards high, we 
 must adhere to them at personal loss ; we must be willing at 
 times to incur ill-will and misunderstanding in support of them. 
 For no lawyer liveth unto himself. If he fail in his duty to 
 the bar, verily he hath his reward. 
 
 In closing I would summarize as follows : In his relation to 
 his client, the lawyer owes fidelity, personal attention to the 
 work, honest counsel to the client, rigid scrupulousness in 
 financial matters, and withal untiring industry. He must 
 never slight the poor man's case or neglect the petty business 
 of his office. Per contra, the laborer is worthy of his hire. 
 He is entitled to his mouthfuls of the straw he treadeth out, 
 and self-respect demands that the ox be not muzzled. He 
 should be his client's friend, act as a brake on his impetu- 
 
 28 
 
osity or recklessness, ready with warning or rebuke, not a 
 mere slave or servant to do any task imposed. The responsi- 
 bility is his. 
 
 Out of his duty to his client grows his duty to the court. 
 He owes respect to the office and the duty of facilitating its 
 labors in order not to complicate his client's interests. His 
 higher powers must be drawn upon when in the forum. 
 Patience must supplement learning. Alertness must utilize the 
 results of industry. Order and conciseness, thoroughness and 
 mastery of detail, clothed in respectful courtesy will enable him 
 to protect his cause and propitiate the arbiter thereof. 
 
 As related to the community, he must take high grounds of 
 professional ethics; never prostitute his talents; he must be 
 loyal to every duty, as a private citizen and as a member of his 
 profession. Ready to rebuke every unprofessional deed, he 
 must not be Pharisaical. " Judge not that ye be not judged." 
 In partnership he must be honorable; to counsel or consultant, 
 straight-forward and honest, concealing no fact nor consciously 
 permitting suggestion of false statement to mislead. On ques- 
 tions of great public moment involving constitutional law or 
 vested rights he must stand for law and order. Calm in the 
 face of public clamor, he must never lend himself to aught that 
 lessens respect for our courts and our Constitution. 
 
 The great lawyer, like good wine, needs no bush. He will 
 not advertise. He will shun the petty devices for publicity so 
 many effect. He will avoid interviews as to important cases. 
 He will not sound a trumpet before him as the hypocrites do. 
 A pleased customer is the best advertisement, and he whose 
 clients are his friends, whose reputation is unblemished, who 
 knows the law, or where to find it, is like a city set on a hill, — 
 he cannot be hid. 
 
 29 
 
LEGAL ETHICS. 
 
 ADDRESS 
 
 D]ei/IVBRED BEFORE THE STUDENTS 
 
 OF 
 
 UNION UNIVBRSITY 
 
 AT 
 
 Albany, N. Y., November la, 1903, 
 
 BY 
 
 Thomas H. Hubbard. 
 
LEGAL ETHICS. 
 
 A PlyBA FOR AN IMPROVED AND UNIFORM 
 
 OATH FOR ATTORNEYS, UPON THEIR 
 
 ADMISSION TO PRACTICF. 
 
 In the record of human achievement the work of lawyers 
 deserves grateful and signal commemoration. 
 
 They have maintained the rights of the weak against the 
 encroachments of the strong. They have molded the laws that 
 protect person and property and prevent the relapse from social 
 order to anarchy. They have ministered to the courts in the 
 enforcement of those laws. They have advanced from the routine 
 of professional employment to broader careers of statemanship 
 and have guided the affairs of nations. 
 
 If the same records were written full and true, they would 
 tell of many who have failed to meet the high requirements 
 of their avocation. They would tell of craft and cunning, of 
 injustice toward adversaries, of pitiless assault upon character, 
 of the advocacy of the wrong, of the disregard of conscientious 
 convictions. 
 
 It is the province of legal ethics to instruct lawyers in those 
 rules that lead them, by the true course, to the loftiest heights 
 and that withhold them from the false course, that descends into 
 the depths. 
 
 These rules cover the relation of lawyers to their clients, to 
 the court and to the public. They expound the principles that 
 should guide the conduct of all lawyers. They deal with the 
 
details of deportment that vary with the temperament and train- 
 ing of individuals. 
 
 The subject is broad. Its adequate treatment requires many- 
 addresses and forms an important part of the education of every 
 student of the law. 
 
 The purpose of this discourse is to present one phase of the 
 subject ; to point out defects in the system, rather than to display 
 its excellence ; to advert to some rules that seem to have brought 
 discredit to the profession and to suggest some thoughts that may 
 aid in maintaining the higher standards. 
 
 In all time since lawyers have been known, they have been 
 the object of censure and of sarcasm in the speech and the litera- 
 ture of contemporaries. Wits have ridiculed them. Serious 
 writers have decried them. 
 
 Some part of these attacks may be disregarded as ground- 
 less abuse. Some part is a natural incident to the lawyer's 
 occupation. He is a combatant. The contests in which he 
 engages are a substitute for the wager of battle between parties 
 who once fought out their causes in the field with certain disturb- 
 ance of temper. 
 
 But the preponderance of censure over praise seems to show 
 that the censure has foundation in truth. And the utterances of 
 critics not unfavorable compel attention to the strictures. 
 
 Mr. Homer Greene, himself a lawyer, and a graduate of the 
 Albany I^aw School, expressed the opinion of many lawyers in 
 an article published more than twelve years ago in the North 
 American Review entitled, "Can Lawyers Be Honest?" Mr. 
 Greene considers the question with judicial impartiality. He 
 gives lawyers credit for absolute faithfulness towards their clients. 
 He says that the lawyer enjoys a respect and faith on the part of 
 his clients for which the merchant, the physician, even the 
 preacher, may well envy him. And while he asserts that there is 
 a popular opinion in America that lawyers, as a class, are dishon- 
 
est, he also says that the lawyer is believed to be dishonest only 
 when his dishonesty will advance the cause of his client and 
 retard or defeat that of his opponent in the law. Mr. Greene 
 illustrates his subject by instances where the lawyer is required 
 by his client to set up the defence of infancy, or the statute of 
 limitations, to defeat a meritorious claim ; by instances where he 
 fights to suppress evidences that is prejudicial to his client, re- 
 gardless of its character ; by instances where, in the interest of 
 his client, he withholds facts, known to himself, which, if dis- 
 closed, would put the case of his opponent in a better light. He 
 speaks of concealment, evasion, exaggeration and strained logic, 
 as usual in the conduct of a cause, if they seem to the lawyer to 
 serve the interests of his client. 
 
 The same thought is expressed by lyord Macaulay in an im- 
 petuous sentence. 
 
 "We will not," he says, "at present inquire whether the 
 doctrine which is held on this subject by English lawyers be or 
 be not agreeable to reason and morality ; 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 indignant exclamation, by gesture, 
 by play of features, by terrifying one honest witness, by perplex- 
 ing another, to cause a jury to think that statement false." 
 
 There can be no doubt that a large part of the public believes 
 the censure which is expressed in such utterances deserved. It 
 would benefit the public and the profession if the distrust that 
 attends this belief were removed. 
 
 What are its causes, and where is the remedy to be found ? 
 
 The popular answer to the first question would be that law- 
 yers are distrusted because they accept the cases of bad men ; 
 
because they advocate bad cases, or the wrong side of cases ; 
 because they urge, with equal fervor, that side of the case which 
 they are hired and paid to urge and can be as earnest and as elo- 
 quent on one side as on the other. 
 
 Such an answer, at first glance, seems to prove a lack of 
 sincerity on the part of the lawyer. To the superficial observer 
 it seems incongruous that a virtuous lawyer should support the 
 cause of a vicious client ; that an honest lawyer should try to 
 make a dishonest case prevail ; that a lawyer who has principle 
 and convictions of his own, should urge, for pay, either side of 
 any question. Yet the answer does not present the real difficulty, 
 nor does it suggest a remedy. 
 
 Bad and vicious men have rights of person and of property, 
 no less than exemplary inen. If their vice leads them to trans- 
 gress the law, they are subject to legal punishment for specific 
 ofienses. But there is no edict of confiscation applicable to bad 
 men. Among the vagaries of legislation no law has yet been 
 proposed that forbids bad men to go into court, or to employ law- 
 yers to appear in court for them. As no man is wholly good, it 
 follows that all men are more or less bad and the exclusion of bad 
 men from the privilege of the courts would either exclude all 
 citizens or would call for an impracticable classification based upon 
 degrees of badness or of goodness. 
 
 There is no reason why a lawyer should not accept a retainer 
 from the worst or most disreputable of men, unless the retainer 
 puts the lawyer under control of the client, or compels him to 
 personate the client, or to execute the orders that the vice of the 
 client invents. If the retainer has this eSect, then it makes the 
 lawyer, no matter how virtuous in person, as bad as the client 
 for the purposes of the client's suit. 
 
 To the criticism that lawyers advocate bad cases, or the 
 wrong side of cases there is a similar reply. There is, in a correct 
 sense, no bad side of a case that has two sides. A case, properly 
 
defined, is a dispute, or controversy, where each party honestly 
 believes that he has some right, or fraction of right, that the 
 opposing party refuses to regard. Where such a controversy has 
 passed the limits of negotiation, or adjustment, it may properly 
 be submitted for the decision of the court. The court may decide 
 that neither party shall have all he has claimed. It may decide 
 that one of the parties shall have nothing that he has claimed. 
 Yet it does not follow that the defeated party had a bad case, or 
 that he was on the wrong side. The honest, though mistaken, 
 assertion of a right, or any measure of right, denied by the 
 opponent, is the proper basis of a case. It casts no reflection 
 upon the morals of a lawyer, though it may upon his ability, that 
 he has espoused and urged a case, or the side of a case, that 
 turns out to be bad in the sense that the court at last decides 
 against it. 
 
 If it happens, as no doubt it does, that lawyer and client 
 both see that the dispute, or controversy, involves no measure of 
 legal right or of justice, then no basis for a case in court exists. 
 It is merely a quarrel, that should not be obtruded upon the 
 court, or made an item of expense to the public that maintains the 
 courts. 
 
 Nor can the fact that the lawyer argues that side of the case 
 for which he is retained and paid, account for the distrust with 
 which he is regarded. The only limitation in this respect is that 
 he shall not argue both sides of the same case. He may regret 
 that he has not 'been retained on the side that has the greater 
 measure of right. But it is reason for commendation and not for 
 censure, that he can argue honestly and earnestly in support of 
 the measure of right, however small, that he believes to be his 
 client's. 
 
 These considerations make it easier to state the real causes 
 for such distrust, or discredit, as attaches to the profession and 
 practice of the law. 
 
Prominent among these causes are two : 
 
 First of these is the fact, recognized by the ethics of the 
 profession, that clients, and not lawyers, decide what cases shall 
 be brought into court and control the substantial methods of their 
 conduct in court. 
 
 The second is that lawyers are permitted to personate their 
 clients ; to say what they think their clients would say and do 
 what they think their clients would do, in order to win their 
 cases. 
 
 In considering the first of these causes it must be admitted 
 that if the lawyer refuses to bring a suit at the direction of the 
 client, he cannot be compelled by legal process to bring it. The 
 process to which the client resorts is to take his business to 
 another lawyer. And the ethics of the profession permit the 
 second lawyer, as they would have permitted the first, to com- 
 mence the suit against his own belief, or even knowledge, that 
 it has no foundation in law or justice, if the client insists that it 
 shall be brought. 
 
 The adjudications give the client substantial control of the 
 conduct of the litigation throughout its course. They clearly 
 settle that the client has the right to direct and control his 
 lawyer in respect to the clients' rights of property, or substantial 
 rights. They state that the lawyer shall have control in matters 
 of form and procedure and shall remain untrammeled in the due 
 and orderly conduct or the suit. 
 
 But where is the line of division between matters of substan- 
 tial right and matters of form and procedure, or due and orderly 
 conduct? Does the attorney's right to control in the "due and 
 orderly conduct of the suit " empower him to decide whether or 
 not to plead the statute of limitations, or of usury, or of infancy, 
 in any given case ? If he knows that a defense under these stat- 
 utes will defeat a plaintiff's just claim, protect a rascal and cheat 
 an honest creditor, has he the right as attorney to decide whether 
 
such a defense shall or shall not be put in ? If the client directs 
 him to put a witness on the stand, may the lawyer refuse because 
 he thinks, or knows, it will work injustice to do so ? If the 
 client directs him to put before the court documents or decisions 
 that he knows will mislead, may he decline to follow the direc- 
 tions ? Must he follow them where he thinks or knows that what 
 the witness will say and what the documents will tend to prove 
 relate to substantial or property rights of the client, and may he 
 refuse to follow the directions only where he thinks, or knows, 
 that they relate to and will affect matters of form or procedure ? 
 Is the obedience or disobedience of the lawyer to be determined 
 by his own refinements of reasoning upon these probable effects ? 
 If the client instructs the lawyer to make certain statements or 
 arguments in his opening or closing address, must the lawyer 
 obey, provided the statements are pertinent and not wholly 
 unsupported by evidence and relate to substantial rights, or may 
 he refuse, if he thinks the statements ought not to be made ? 
 
 The client's power to control in all doubtful instances is 
 fortified by the circumstance that he is employer and the lawyer 
 employee and by the doctrine, pushed sometimes to extreme 
 appUcation, that the lawyer is trustee of his client's interests, 
 including his hopes, prej udices and passions and that, to quote 
 the language of Lord Brougham, the lawyer "in the discharge 
 of his duty, knows but one person in the world, his client and no 
 other "; that " to save that client * * * he must not regard 
 the alarm, the suffering, the torment, the destruction he may 
 bring upon others, ' ' but ' ' must go on, reckless of consequences, 
 even if his fate should unhappily be to involve his country in 
 confusion for his client." 
 
 It is true, no doubt, that lawyers in many instances dissuade 
 their clients from bringing suits, or interposing defences that 
 ought not to be brought or interposed. It is true that efforts so 
 to dissuade form no small part of the lawyer's labor in consultation 
 
with his client. But where the effort to dissuade is unavailing, it is 
 the decision of the client and not of the lawyer that finally prevails. 
 
 The disputant in petty quarrels, whose threat at the end of a 
 wrangle is " I will have the law on you," finds his lawyer to do 
 his bidding. 
 
 The manager of great interests who plans suits for strategic 
 effect, with no expectation of ultimate success, finds his. 
 
 And so it turns out that the lawyer is compelled to conduct 
 litigations that his own conscience does not approve and to shelter 
 himself from its reproaches by adopting the hypothetical con- 
 science of the client. 
 
 It is not the purpose here to set lawyer and client in contrast, 
 or to eulogize the one and disparage the other. The lawyer 
 should be at least up to the average level of his clients, in respect 
 of cultivation, intellect and morals. It is believed that such 
 lawyers as are contemplated in this address do stand upon at least 
 as high a plane. 
 
 But if, in these respects, lawyers and clients are peers, it yet 
 remains true that the controversy, with all its attendant exaspera- 
 tions, is the client's controversy. Its asperities, its irritations, 
 its impulses, its interests, are not the lawyer's, save as he receives 
 them from the client. If he receives them in bulk, as a common 
 carrier receives all goods that are offered ; if, as the servant of the 
 client, he carries them all through the portals and into the temple 
 of justice; if he surrenders his own convictions to the wishes of 
 his client, then he gives to his cases the elements that retard 
 justice and bring the practice of the law into disrepute. He 
 obtrudes upon the court, the passion, the prejudice, the unreason 
 of the client. These should be left outside the court house door. 
 The controversy that crosses the threshold should be a controversy 
 sifted by the intelligence and shaped by the conscience of the 
 lawyer. It should be the essence of honest difference in the as- 
 sertion of rights, not the turmoil of personal dispute. 
 
There was mentioned as another cause of distrust towards 
 lawyers the rule, or usage, that permits the lawyer to personate 
 his client, and, in time of stress, to substitute for his own con- 
 science a hypothetical conscience assumed to belong to his 
 client. 
 
 It may not be correct to say that the ethics of the profession 
 prescribe such conduct, but it is no exaggeration to say that they 
 permit it. 
 
 A leading authority of our own time presents the prevailing 
 professional view of the subject in the following words: "The 
 party has a right to have his case decided upon the law and the 
 evidence and to have every view presented to the minds of the 
 judges which can legitimately bear upon the question. This is 
 the office which the advocate performs. He is not morally 
 responsible for the act of the party in maintaining an unjust 
 cause, nor for error of the court, if they fall into error, in decid- 
 ing it in his favor. The court, or jury, ought certainly to hear 
 and weigh both sides, and the office of the counsel is to assist 
 them by doing that which the client in person, from want of 
 learning, experience and address, is unable to do in a proper 
 manner. ' ' 
 
 Another high authority, whose ethical standards and con- 
 duct none of the profession excelled, expresses the accepted doc- 
 trine in these words : ' ' Within a certain and definite limit it is 
 true that the lawyer must, in the interest of his client, whenever 
 any real case exists, sometimes forego his own opinion and sur- 
 render his own judgment and plead against his own conviction 
 and even succeed against his own expectation. ' ' 
 
 The same authority quotes Bishop Warburton, as follows : 
 ' ' Though some of those who call themselves casuists have held 
 it unlawful for an advocate to defend what he thinks an ill cause, 
 yet I apprehend it to be the natural right of every member of 
 society, whether accusing or accused, to speak freely and fully 
 
10 
 
 for himself. And if, either by legal or natural incapacity, this 
 cannot be done in person, to have a proxy provided or allowed by 
 the State to do for him what he cannot or may not do for himself, 
 I apprehend that all States have done it and that every advocate 
 is such a proxy. ' ' 
 
 If the writers of the passages quoted were speaking for a 
 client, they would restrain their speech by the curb of their own 
 enlightened consciences. Others, whose consciences are less 
 enlightened, need the restraint and help of a less elastic rule. 
 
 Agreeably to the ethics of the profession as now understood, 
 the lawyer may, and under penalty of losing his clients, must, 
 take into court such cases as the client directs. He may, and, at 
 the same risk, must, conduct them in court with all the temper, 
 prejudice and personal rancor of the client. He must conduct 
 them in substance according to the wishes of the client. He may 
 personate the client ; speak as he thinks the client would speak, or 
 would like to have him speak, and, discarding his own convictions 
 and the restraints of his own conscience, shape his conduct by 
 what he assumes to be, yet which may not be, the conscience of 
 his client. And, under established decisions, he may say with 
 immunity, of his adversary and of adverse witnesses, false things 
 and even malicious things, if only they are pertinent to the cause 
 in issue. 
 
 What wonder that, under these conditions, causeless and 
 conscienceless litigations go on ? What wonder that the profess- 
 sion has earned a reputation for disingenuousness ? The lawyer, 
 burdened with a cause that is urged by the client's caprice or 
 anger, has found in neither the facts, nor the law, weapons to 
 give him the victory the client expects him to gain. Where shall 
 he look for other weapons ? He may open his case, or his de- 
 fense, by stating with warmth and exaggeration, the things his 
 client wishes to have proved. He may impugn the motives of the 
 adverse party. He may harass the opponent's witnesses. He 
 
II 
 
 may lay traps for them and lead them into apparent contradiction. 
 He may lay stress on immaterial matters and obscure the material. 
 He may exclude evidence known only to himself and his client, 
 that favors the other side. He may amuse the jury by bright or 
 caustic personalities in respect to matters not relevant to the cause. 
 He may use the weapon of eloquence in summing up and may 
 give it keener edge, by ingenious misapplication of facts, miscon- 
 struction of motive, sophistical criticism of testimony, undeserved 
 denunciation of parties. 
 
 Professional standards allow these things. There are not 
 wanting, among distinguished practitioners, those who maintain 
 that the rough and tumble way of conducting a legal battle, is the 
 best way. There are not wanting those who feel in such a 
 struggle the "guadium certaminis." They hold that the court 
 and jury will best get at the truth by witnessing this intemperate 
 and confusing contest. 
 
 The court and jury do, in most instances, finally reach the 
 truth, or its approximate ; but they reach it at vast cost of time, 
 waste of public money and expense of temper. 
 
 And, beyond this, there is engendered and nourished that dis- 
 trust of the lawyer's honesty and sincerity that wounds his sensi- 
 bilities and impairs his service. 
 
 Now, the object of every litigation should be to obtain for the 
 litigant exactly what is of right his, without adding anything to 
 what is his due and without subtracting anything from it. This 
 object should be reached with the least possible expenditure of 
 labor and time by the courts ; the least practicable harm to repu- 
 tation or feelings of parties and witnesses and with no sacrifice of 
 the lawyer's self respect. It would be the perfection of litigation 
 to reach correct and just results without wasting time of the court, 
 increasing the public burden of expense, wronging adversaries, or 
 witnesses, or detracting from the honor of the bar. Lawyers who 
 approach this standard in the conduct of their litigations, bring 
 
12 
 
 credit to themselves and to the bar. It is divergence from this 
 standard that brings discredit. 
 
 But how can the standard be maintained if lawyers must con- 
 duct such litigations as their clients ordain ; may personate their 
 clients, bad or good ; may discard their own convictions and adopt 
 the assumed convictions of their clients, in the conduct of their 
 causes and may, with impunity, say malicious and false things 
 about their adversaries. 
 
 To disclose the causes that may bring reproach upon the bar, 
 suggests the remedy that should be adopted. 
 
 The lawyer should be emancipated from servitude to his 
 client in respect to the commencement and conduct of suits. 
 
 The lawyer should control in determining what cases may be 
 brought before the court ; what suits may be begun ; what defen- 
 ces may be interposed. His appearance in any cause should be 
 deemed a certificate, upon his honor as counsel, that it involves, 
 in his opinion, the honest assertion of legal and equitable rights 
 withheld by the opposing party. In all matters that involve con- 
 science, whether matters of form or substance, the lawyer's deci- 
 sion should be supreme from the beginning to the end of litigation. 
 The custom should be shattered, that permits the lawyer to 
 personate the client ; to argue against his own convictions ; to sub- 
 stitute his client's morals and conscience for his own, in the con- 
 duct of his cause. 
 
 It is probable that clients would dislike to have litigation 
 determined and conducted in the manner here suggested. No 
 doubt many would claim that such a method would take some- 
 thing from their rights as citizens. No doubt they would con- 
 sider their own consciences as enlightened as the consciences of 
 their counsel and themselves as competent as their counsel to 
 decide what proceedings and defences should be considered just. 
 
 But, conceding the conscience of the client is no less enlight- 
 ened than the conscience of the lawyer, it still remains true that 
 
13 
 
 the client is swayed in respect to his own case, by self interest, 
 by excitement, by temper or animosity, from which the lawyer 
 should be free. 
 
 Equal rights before the courts belong to all citizens ; but it 
 should be no part of the rights of any citizen to make his quarrels 
 or disputes a public charge, nor should it be the right of any 
 citizen to decide what controversies are fit for litigation. These 
 questions should be decided by the lawyer. It is for this that he 
 has, or should have, the training of a specialist. For the just 
 decision of these questions he should be held responsible by the 
 courts. 
 
 The change of methods here urged will not be effected by 
 the lawyer unaided. Many prefer the existing methods. Those 
 who do not, are unable to adopt the better method without con- 
 signing their clients to those who do. 
 
 The change will not be effected by public opinion. The 
 public, disinterested, might approve it ; but the public, individ- 
 ualized as clients, would disapprove. The change can hardly be 
 effected by adjudications of the courts upon the relative rights of 
 lawyer and client. Adjudications come too slowly, and few 
 lawyers, or none, will make the issues that call for them. 
 
 The most effectual aid must come from the oath administered 
 to the lawyer on his admission to the Bar and the enforcement of 
 that oath by corresponding rules of the court. 
 
 The oath now prescribed varies in the different States. The 
 New York statute requires attorneys to take the Constitutional 
 oath. It is the oath prescribed for members of the Legislature 
 and all ofi&cers, executive and judicial, except such inferior officers 
 as shall be by law exempted. Its form is as follows: "I do 
 solemnly swear (or affirm) that I will support the Constitution of 
 the United States and the Constitution of the State of New York, 
 and that I will faithfully discharge the duties of the office of 
 attorney and counsellor-at-law in the courts of record of this State to 
 
H 
 
 the best of my ability." What the duties of the office of attorney 
 and counsellor-at-law are and what their faithful performance 
 requires, must be learned in the schools, from the books, or de- 
 termined for himself by each attorney. The form gives no in- 
 struction on these subjects and imposes on him who takes the 
 oath no obligation more specific than would an oath to be good. 
 
 Substantially the same form of oath is used in a dozen or 
 more of the other States — in California, Colorado, Illinois, Indiana, 
 Iowa, the Indian Territory, Kansas, Louisiana, Michigan, Ne- 
 braska, North Dakota, Wyoming, Utah. Colorado adds the 
 requirement that the applicant must swear that he has never 
 been disbarred or convicted of felony. 
 
 The oath imposed, upon admission to practice in the United 
 States Courts, Supreme, Circuit and District, varies little from 
 that given above. The applicant swears that he will demean 
 himself in his office "uprightly and according to law," and will 
 " support the Constitution of the United States." 
 
 Seventeen of the States have adopted this form with little 
 variation. Texas adds the requirement that the attorney will 
 discharge his duty to his client to the best of his ability ; deeming 
 as it would seem, that the lawyer must do something more for his 
 client than to demean himself " uprightly and according to law." 
 The other States and Territories that use the same form with little 
 variation of words are Alaska, Arizona, Arkansas, Florida, Georgia, 
 Maryland, Missouri, New Jersey, New Mexico, North Carolina, 
 Ohio, Oregon, Tennessee, Virginia, West Virginia, Wisconsin. 
 
 The Clerk of the Supreme Court of Tennessee writes, " We 
 have no special oath in this State on record. Below is the form 
 I generally use : 
 
 ' ' Do you promise to support the Constitution of the State of 
 Tennessee and the Constitution of the United States, and to 
 truly and honestly demean yourself while engaged in practice of 
 the profession ? ' ' 
 
15 
 
 To the oath to support the Constitution of the United States 
 and of the State and to " faithfully execute the oflSce of attorney 
 to the best of his ability and according to law," there is added 
 in Kentucky an oath that the candidate for admission has not 
 fought a duel, nor sent or accepted a challenge, nor acted as 
 second, nor aided or assisted any person thus offending. 
 
 This follows a Constitutional requirement. The Nevada 
 and South Carolina oaths contain a similar clause about the duel. 
 
 Alabama, Delaware, Minnesota, Mississippi and Pennsylvania 
 enlarge the scope of the oath beyond the forms used in the States 
 already mentioned. The oath is that " you will behave yourself 
 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." 
 
 Minnesota requires her attorneys to swear that they will 
 behave themselves in an upright, courteous and gentlemanly 
 manner to the best of their learning and ability. Courtesy and 
 gentlemanly bearing were perhaps taken for granted in the other 
 states already mentioned. Perhaps they were considered non- 
 essential. 
 
 The New England States have a form devised for attorneys as 
 distinguished from legislators. It prescribes with some precision 
 the duties that must be ' ' faithfully discharged ' ' by the attorney. 
 
 South Dakota and Oklahoma have adopted, in substance, the 
 New England form. The oath required in the State of Maine will 
 serve as the example of the New England oath. It is as follows : 
 
 ' ' You will do no falsehood, nor consent to the doing of any 
 in Court, and if you know of an intention to commit any, you 
 will give knowledge thereof to the justices of the Court, or some 
 of them, that it may be prevented ; you will not wittingly or 
 willingly promote, or sue, any false, groundless or unlawful suit, 
 nor give aid or consent to the same ; you will delay no man for 
 lucre or malice ; but will conduct yourself in the oiEce of an 
 
i6 
 
 attorney within the Courts according to the best of your knowl- 
 edge and discretion and with all good fidelity as well to the 
 Courts as to your client." 
 
 This form, does not, like the preceding forms, leave it 
 wholly to the attorney to decide what he must do in order to 
 " demean himself uprightly and according to law" or to "faith- 
 fully discharge the duties of the office of attorney and counsellor ' ' ; 
 or ■ ' faithfully to execute to the best of his ability and according 
 to law ' ' the office of attorney. It instructs him on some of the 
 important duties of the attorney and by compelling him to reject 
 false, groundless and unlawful suits, gives him some power to 
 control his client. 
 
 But despite its injunctions and prohibitions, it leaves him a 
 wide field for the active exercise of those arts, artifices, simula- 
 tions and impersonations that have been generally characterized 
 as disingenuous and sometimes described as dishonest. 
 
 The young state of Idaho has a somewhat novel form with a 
 color of chivalry, yet gives the attorney no certain light. He 
 must swear to support the Constitution of the United States and 
 of the State and ' ' that " he " will maintain the respect due to 
 Courts of Justice and to judicial officers ; " "that " he "will be 
 true to the Court and to his client ; " " that " he " will abstain 
 from all offensive personality" and "that" he "will never reject 
 for any consideration personal to" " himself" " the cause of the 
 defenseless or oppressed. ' ' 
 
 Of the novel features of this form, the most important per- 
 haps is that which pledges the attorney to abstain from all offen- 
 sive personality. Under the other forms mentioned, and even 
 under the rigorous New England form, he may be as offensively 
 personal and as disagreeable as he will. Indeed, he receives some 
 implied encouragement in that direction by the forms that inhibit 
 duelling. 
 
 One only of all the United States prescribes for its lawyers a 
 
17 
 
 form of oath that indicates their control of their clients in respect 
 to litigation, and that points to their freedom from vassalage. 
 This is a State tender in years, but great in name and in aspira- 
 tions — the State of Washington. 
 
 This oath, though compact, is itself an essay on the subject 
 of legal ethics. 
 
 If it shall be enforced by the courts and lived up to by the 
 bar, it will be one of the State's best possessions. 
 
 It runs as follows : " Obligation to be sworn to by Attorney ' ' : 
 
 I St. I do solemnly swear that I will support the Constitu- 
 tion and laws of the State of Washington. 
 
 2d. That I will maintain the respect due to Courts of Justice 
 and Judicial Officers. 
 
 3d. That I will counsel and maintain such actions, proceed- 
 ings and defenses only, as appear to me legal and just ; except the 
 defense of a person charged with a public offense. 
 
 4th. To employ for the purpose of maintaining the causes 
 confided to me such means only as are consistent with truth and 
 never to seek to mislead the judge by any artifice or false state- 
 ment of facts or law. 
 
 5th. That I will maintain inviolate the confidence and, at 
 every peril to myself, preserve the secrets of my client. 
 
 6th. That I will abstain from all ofEensive personality and 
 advance no fact prejudicial to the honor or reputation of a party 
 or witness unless required by the justice of the cause with which 
 I am charged. 
 
 7th. That I will never reject, from any consideration personal to 
 myself, the causeof the defenceless or oppressed. So help me God." 
 
 The form of this obligation would be improved by inserting 
 after the word ' ' Judge ' ' in the fourth paragraph the words ' ' or 
 jury," so that the paragraph would read : 
 
 ' ' To employ for the purpose of maintaining the causes con- 
 fided to me, such means only as are consistent with truth and 
 
never to seek to mislead the Judge or jury, by any artifice or false 
 statement of facts or law." 
 
 But, as it stands, it is a vast improvement upon the forms of 
 the other States. It would be worth a crusade to have it adopted 
 by every State and enforced appropriately by the rules of every 
 court and kept constantly before every attorney. 
 
 Its third paragraph, by the words "I will counsel and main- 
 tain such actions, proceedings and defenses only as appear to me 
 legal arid just ' ' makes the Counsel the one who as between him- 
 self and his client, shall determine what suits and defenses shall 
 come before the court and requires that such as come there shall 
 appear to the Counsel to be not only legal but also just. 
 
 The 4th and 6th paragraphs forbid the artifices, exaggera- 
 tions, subterfuges, evasions, suppressions, that help to make the 
 practice of the law discreditable. 
 
 The whole oath puts the responsibility of bringing suit, inter- 
 posing defense and of conducting either, exactly where that respon- 
 sibility should be put, upon the conscience and honor of the lawyer. 
 
 To the aid that may be given the profession in adopting the 
 better method by the oath of office and by rules of court to en- 
 force its obligations, there should be added consistent instruction 
 to the student in the schools. If all the law schools in the land 
 should agree upon the principle and unite in teaching it, the 
 improvement would be half accomplished. A long step would 
 have been taken towards that perfection of litigation that it has 
 been one purpose of this address to outline. 
 
 A sensible contribution would have been made to the honor- 
 able distinction of the coming Bar and to the success of coming 
 lawyers. 
 
 All students of the law hope and wish to succeed. Every 
 judge or lawyer who addresses them will say that, while the road 
 of the law is steep and flinty, yet if the student toils courageously 
 on he will fiind it leads to success. 
 
But what is tlie success the speaker and the hearer have in 
 mind? 
 
 One kind of success is shown by the receipt of large fees. If 
 they are the return for large services and are the fair equivalent 
 for that which he who pays them has received in service, they are 
 one measure of success. 
 
 It is a success to gain verdicts from juries, if the verdicts are 
 just, but not if the jury has been misled to the belief ; that the 
 worse cause is the better cause. 
 
 It is a success to convince courts by argument, if the argu- 
 ment is founded on facts and law correctly presented. 
 
 It is a success to counsel clients so wisely that they can get 
 their rights without needless expenditure of time and effort. 
 
 But it is safe to say of any able lawyer who has passed the 
 passionate period of life, that he does not deem the verdicts he 
 has won to have been successes, if they have been won by dis- 
 tortion of facts ; by undeserved invective, by unjust aspersion of 
 character or motive, or if their winning has taken from the 
 opposing party something that should have been left with him. 
 
 It is safe to say of such a lawyer that he does not vaunt himself 
 upon decisions that have followed his arguments, unless he knows 
 that his arguments have not confused the law or misled the court. 
 
 It is safe to say of such a lawyer that he does not deem his 
 counsel to clients an evidence of success for the reason that it has 
 helped his clients to get what they wished, unless he can also feel 
 that it has not helped them to get what they ought not to have had. 
 
 To have advanced the cause of truth and justice is a success, 
 whether this has been done by winning verdicts, by getting favor- 
 able decisions or by preventing needless litigation. 
 
 The success here outlined is the only kind of success that, in 
 the retrospect, satisfies the ambitious man whose ambition is 
 worthy. It is the kind of success that in the prospect should be 
 alluring to the young. 
 
THE JUDICIAL- POWER IN THE 
 STATE OF NEW YORK. 
 
 ■ADDRESS DELIVERED 
 AT THE TWENTY-NINTH ANNUAL MEETING > 
 
 ■OF 'the ■ :;.'|p*# " 
 
 New York State Bar Association, 
 
 r 
 
 HELD AT THE CITY OF ALBANY, N. Y., ON THE i6th 
 
 AND I7TH OF JANUARY, 1906, AND REPRINTED FROM 
 
 THE TWENTY-NINTH ANNUAL REPORT OF 
 
 THE PROCEEDINGS OF THE ASSOCIATION. 
 
 By RICHARD I.. HAND. 
 
 PRESIDENT OF THE ASSOCIATION. 
 
With the CompUments of 
 
 RICHARD L. HAND. 
 
THE JUDICIAL POWER IN THE 
 STATE OF NEW YORK. 
 
 ADDRESS DELIVERED 
 AT THE TWENTY-NINTH ANNUAL MEETING 
 
 New York State Bar Association, 
 
 HELD AT THE CITY OF ALBANY, N. Y., ON THE i6th 
 AND I7TII OF JANUARY, 1906, AND REPRINTED FROM 
 THE TWENTY-NINTH ANNUAL REPORT OF 
 THE PROCEEDINGS OF THE .ASSOCIATION. 
 
 By RICHARD L. HAND. 
 
 PRESIDENT OF THE .SSSOCIATION. 
 
THE JUDICIAL POWER IN THE 
 STATE OF NEW YORK. 
 
 We have all been bred up in the unquestioning convic- 
 tion that the State of New York presents one, among 
 many state sovereignties comprising the United States, 
 in which is exhibited a division of governmental functions 
 into the familiar trinity of Executive, Legislative and 
 Judicial, and that these three are alike sovereign, coequal 
 in dignity and power and each independent of any author- 
 ity of the others. 
 
 There is even a common belief, especially among 
 lawyers, that this theoretical balance of equality and in- 
 dependence is practically modified by a very real suprem- 
 acy, in fact, of the Judicial, because we are accustomed 
 to consider it as having authority to pronounce void or 
 control the acts of the other two by its construction or 
 decree. 
 
 It will not be questioned that it is interesting and im- 
 portant to consider how far this is true and what is the 
 actual position of the Judicial Department in our State 
 
 government. 
 
 Referring to the several constitutions which have 
 been adopted by the people of this commonwealth, we 
 are at once struck by a marked difference in this respect 
 between them all and not only the Federal Constitution 
 but also the general form of constitution adopted by. the 
 several States. And it is very difficult to believe that this 
 
difference is not due to a different intent, indicative of 
 reasons of substance for the distinction. 
 
 The Federal Constitution declares that " all legislative 
 powers, herein granted, shall be vested in a congress." 
 
 " The executi\'e power shall be vested in a president." 
 
 "The judicial power of the. United States shall be 
 vested in one Supreme Court and in such inferior courts 
 as the congress may, from time to time, ordain and 
 establish." 
 
 Here is a clear expression of division of sovereignity 
 into legislative, executive and judicial power and a vest- 
 ing of it all in the governmental agencies named ; — All of 
 the legislative power in the legislative body ; all of the 
 executive power in the executive, and all of the judicial 
 power in the courts. Plainly no judicial power can be 
 claimed by the executive or legislature, under such a 
 constitution. Still more plainly must there be a 
 judiciary, in which all of the judicial power of the 
 nation reposes, beyond and above interference of 
 any other person or power in the government. "The 
 object of the Constitution," says Storey, " was to 
 establish three great departments of government : the 
 legislative, the executive and the judicial department. 
 The first was to pass laws, the second to approve and 
 execute them and the third to expound and enforce 
 them." And again, " The framers of the Constitution, 
 with profound wisdom, laid the corner stone of our 
 national republic in the permanent independence of the 
 judicial establishment." 
 
 The first New York Constitution, of 1777, in like 
 manner, vests " the supreme legislative power " in the 
 legislature, " the supreme executive power and author- 
 ity " in a governor, while, as to the vesting of judicial 
 power it is silent. All of the ofificers of the State, except- 
 
ing members of the legislature, governor, lieutenant- 
 governor and treasurer, were to be appointed by the 
 council of appointment. Provision is made for a court 
 lor the trial of impeachments and the correction of errors, 
 " under the regulations which shall be established by the 
 legislature " and the term of office of the chancellor, the 
 judges of the Supreme Court, the first and other judges 
 of the County Court in every county and justices of the 
 peace is prescribed ; probate and admiralty courts are 
 mentioned and attorneys are to be licensed by the courts 
 in which they shall practice. Beyond this there is no 
 provision "for and hardly reference to courts or judicial 
 power. In truth, the existence and continuance of the 
 ordinary courts are simply assumed, but with no expres- 
 sion of vesting of the judicial power of the State in them 
 or elsewhere. 
 
 This omission can hardly be attributed to inadvertence. 
 The vesting of legislative and executive power was ex- 
 plicitly and emphatically declared and the judicial power 
 cannot be supposed to have received no consideration. 
 Why then is the Constitution without definite expression 
 as to a subject of such evident importance? 
 
 W^e may, perhaps, find an answer to this question in 
 the attitude of the people towards the judicial power. 
 
 At the time of its organization, this State was largely 
 peopled by citizens of Dutch and English descent, and 
 their lessons in the science of government had been 
 learned from the experience of themselves and their 
 ancestors under Dutch and English rule. 
 
 To consider fully the nature and influence of these 
 experiences would involve a presentation of the evolu- 
 tion of law and liberty from the beginning and be mani- 
 festly impossible on such an occasion as this, even if we 
 had the presumption to attempt it. It may be not inap- 
 
propriate, nevertheless, to consider some of the saHent 
 features of that evolution. 
 
 The origin of their ideals of law and liberty was essen- 
 tially the same in both peoples, but found quite different 
 development under different surroundings. 
 
 The seed of American liberty may be found, I suppose, 
 in the principle of what is known to-day, but unfortun- 
 ately is now almost degenerated into a political cant, as 
 " Home Rule." It was the foundation of Aryan civiliza- 
 tion everywhere, and it may be profitable to consider its 
 leading features. The fundamental idea is of the family 
 as the source and center of all government; wherefore 
 the sacredness of the home and of the rights of the home 
 has never been absent from the thinking of its peoples. 
 The vicinage of several or many families inevitably led to 
 consultation and union of their heads for the common 
 interest, resulting in that form of organization known as 
 the village community, where experience or natural abiHty 
 showed its influence in the councils of free men. But 
 in all this the guiding rule was precedent and the village 
 council, exercising little initiative of legislation, simply 
 declared the rights and customs known to their fathers ; 
 and thus came into existence such a body of regulations 
 as was destined to development, perpetuation and author- 
 ity, among the millions who now own allegiance to the 
 Common Law, including practically the whole people of 
 these United States to-day. For the settlement of con- 
 troversies between individuals, the council called those 
 who had knowledge of the facts. These appHed to that 
 knowledge the customs or accepted standards of justice 
 which had come down from of old, and thus was 
 developed Trial by Jury. Perhaps the strongest argu- 
 ment in favor of our requirement of unanimity may be 
 found in this principle, that any result which those who 
 
have knowledge of the facts, either personal, as under 
 the original practice, or derived from witnesses and aided 
 by the instruction of skilled students of the law occupying 
 judicial station, as under our present system, cannot con- 
 cur in and agree upon, should not be accepted as 
 demanded or justified by the customs of the fathers — the 
 common law. 
 
 Natural increase in the size of these communities and 
 their number made it inevitable that the deliberations of 
 the council could no longer be had in gatherings of the 
 entire body of its membership. This became too incon- 
 venient, if not practically impossible, and resort was had, 
 we may say necessarily, to Representation. But representa- 
 tive government, whatever its form, and how much soever 
 its jurisdiction was extended to the new questions pre- 
 sented by external pressure or internal need, affecting the 
 people as a whole, was still representative, while the bur- 
 gesses remained freemen and the sovereignty was retained 
 by the people. No divine right was recognized in any 
 ruler and the leaders were rather agents, to whom, even in 
 war, command was given for temporary necessity, but over 
 volunteers and to end with the passing of that necessity. 
 It is not too much to say, I think, that this traditionary 
 freedom was never given over by the Dutch, but 
 remained, through all the bitter trials of their history, 
 the theory and the aspiration of that noble race, towards 
 realization of which they ever struggled and never 
 despaired. 
 
 Very similar was the condition of the English people 
 at the time of the conquest and in many of its essential 
 features it persisted even under the Norman conqueror. 
 The ancient liberties were preserved, the local courts 
 recognized, unlawful seizure of property or person for- 
 bidden, the boroughs and guilds strengthened, while even 
 
8 
 
 feudalism was subservient to law, to be obeyed by the 
 lords, with respect to the rights and privileges of the 
 people, as well as by the people, as regarded their duty 
 towards the lords. Indeed, the people found much pro- 
 tection, in King and Church, from the claims of their 
 barons, and in the barons from the claims of King and 
 Church ; most conspicuously illustrated in the wresting 
 from King John of the Magna CItarta of English liberties. 
 What hopes and joys were found in such pledges as these : 
 That the English Church shall be free and shall have 
 her whole rights and her liberties inviolable. We have 
 also granted to all the freemen of our Kingdom, for us 
 and our heirs forever, all the underwritten liberties, to 
 be enjoyed and held by them and by their heirs — -speci- 
 fying, among many others : No freemen shall be seized 
 or imprisoned or dispossessed, or outlawed or in any way 
 destroyed nor will we condemn him excepting by the 
 legal judgment of his peers or by the laws of the land. 
 To none will we sell, to none will we deny, to none will 
 we dela}^ right or justice. All merchants shall have 
 safety and security in coming into England and in stay- 
 ing and in traveling through England, as well by land 
 as by water, to buy and sell, without any unjust exactions, 
 according to ancient and right customs. It shall be 
 lawful to any person, for the future, to go out of our King- 
 dom and to return safely and securely, by land or by 
 water. If any have been disseized or dispossessed by 
 us, without a legal verdict of their peers, of their lands, 
 castles, liberties, or rights, we will immediately restore 
 these things to them. All fines that have been made by 
 us unjustly, or contrary to the laws of the land and all 
 amerciaments that have been imposed unjustly or con- 
 trary to the laws of the land shall be wholly remitted. 
 Also all of these customs and liberties aforesaid, which we 
 
have granted to be held in our Kingdom, for so much 
 of it as belongs to us, all our subjects, as well clergy as 
 laity, shall observe towards their tenants, as far as 
 concerns them. There shall be one measure of wine 
 throughout all our Kingdom and one measure of ale 
 and one measure of corn. Also it shall be the same with 
 weights as with measures. Common Pleas shall not fol- 
 low our court, but shall be held in some certain place. 
 We will and grant that all cities and burghs and towns 
 and ports should have all their liberties and free customs. 
 
 From this time on, for centuries, the history of England 
 is the history of a struggle for the recognition and enforce- 
 ment of personal liberty and the rights of citizenship — 
 the evolution of democracy under the cover of a mon- 
 archy. And doubtless the most important and significant 
 thing in this evolution is the rise and development of 
 the Commons, wherein the burdens of feudalism, the 
 extreme claims of royal prerogative and the absolutism 
 asserted for the church, instead of resulting in the des- 
 truction of liberty and the maintenance of despotism 
 became important agencies — unwilling and unwitting 
 agencies — in the growth of that democracy, from its 
 local and feeble beginnings to the majestic dignity and 
 power of the elective house in an omnipotent parHament. 
 In truth, the selfish quarrels of King, church and barons 
 were the opportunities of the people, and the very tyran- 
 nies and abuses inflicted upon the latter were the 
 means of arousing the spirit and strengthening the pur- 
 pose to be free. The famous expression of Tertullian: 
 " Semen est sanguis Christianonim'' needs little change to 
 be applicable here. 
 
 So long as the National Council was an assembly of 
 the great lords of the realm, the resources of the govern- 
 ment were but imperfectly available and it was only by 
 
10 
 
 direct representation of the shires and towns that this 
 difficulty could be obviated. The barons desired such 
 representation, in aid of themselves against the crown, 
 and the King found in it a readier means of obtaining 
 grants and supplies, binding upon all classes of the 
 people. These representative knights of the shire were 
 chosen in the shire court or county court, which embraced 
 the whole body of freeholders and, as no pro- 
 vision was made for distinguishing the vote of yeoman 
 from that of squire, in practical result the whole body 
 of freeholders entered into the responsibilities of citizen- 
 ship by taking part in the choice of legislators. 
 
 In like manner representation of the boroughs and 
 towns was strongly desired, for the like purpose of taxa- 
 tion, until Edward the First, following a precedent given 
 by the noble hearted and patriotic Simon de Montfort, 
 thirty years before, but from vastly different motive, 
 summoned two burgesses .from every city, borough and 
 leading town to sit in his parliament of the year 1295. 
 His wisdom seemed to be justified in the result, for these 
 representatives of the people proved complaisant enough 
 and the King found his revenues readily granted and 
 largely increased by legal impost upon the whole prop- 
 erty of his Kingdom. Indeed, the people now taxed 
 themselves upon the royal request. But neither King 
 nor Commons dreamed of the final outcome. These 
 modest burgesses and knights of the shire, overawed 
 by the presence of the great lords and conscious that they 
 were there only for the purpose of taxing themselves 
 and their neighbors, having no ambition to claim any 
 power of legislation, were the last to foresee the time 
 when they would hold the Nation's purse and make the 
 Nation's laws. In truth, finding their new honors 
 burdensome and their part in the government irksome, 
 
II 
 
 they were far from eager to give their attendance; -and 
 it was not until half a century later that they became 
 separated into the Commons. Even then they were 
 rather petitioners to the King than legislators, until the 
 concession was made that, upon assent of the crown to 
 their petitions, these should be entered upon the rolls 
 of parliament and thereby become statutes of the realm. 
 
 But nothing is more characteristic of both Dutch and 
 English than the tenacity with which they hold to an 
 advantage once gained, and every civil or foreign struggle 
 — every necessity of the Crown for revenue — was an 
 occasion for demanding, as a condition of their aid, some 
 new extension of the people's privileges or guarantee of 
 their Hberties, accompanied by steady growth of their 
 power and clearer recognition of their rights. These 
 more and more took the form of charters and laws, 
 solemnly ratified by all other estates of the Kingdom 
 and of permanent authority and binding force, until, on 
 the one hand, parliament had become supreme in author- 
 ity and, on-tli« other, the rights and liberties of the people 
 had found expression and safety in laws of their own 
 making. 
 
 All of this, however, was accomplished against the will 
 of the Crown and its accomplishment was the result of 
 an unceasing contest, in which the people rarely found 
 support in the judicial department of their government, 
 regarding it, rather, as a powerful agency of tyranny and 
 oppression. 
 
 Although the people of England have never been with- 
 out local courts for the settlement of minor controversies 
 and maintenance of peace, yet their history is full of 
 oppression through the judicial power. The Aula Regis 
 of William the Conqueror, receiving appeals from all the 
 courts of the barons and determining the estates, hon- 
 
12 
 
 our, and even lives of the barons themselves, composed 
 of the great officers of the crown, holding their position 
 at his pleasure and presided over by the King himself, 
 was the farthest removed from any guaranty of the liber- 
 ties of the subject and the last resort for any protection 
 of their rights ; being, instead, the visible organ of his 
 power and expression of his will. 
 
 Notwithstanding the immense advance in dignity and 
 freedom of the judiciary, sustained by the authority of 
 parliament, the judicial power of England is still vested, 
 at least theoretically, in the Crown. It is a part of the 
 royal prerogative. The King is the chief of all the 
 courts, all procedure is in his name ; he is the universal 
 proprietor ; the superintendent of commerce ; the Judges 
 are his substitutes, the judgments bear his seal and are 
 executed by his officers. He is above the reach of all 
 courts, his person sacred and inviolable. Hence the 
 maxim " The King can do no wrong." He has been 
 called " the fountain of justice " and appoints all judicial 
 officers, who are regarded as his deputies, and is the 
 source of their jurisdiction. And, although the Act of 
 1 6 Charles I, abolishing the star-chamber, declares that 
 " neither his majesty nor his privy council have, or 
 ought to have, any jurisdiction, power or authority to 
 examine or draw into question, determine or dispose 
 of the lands, tenements, goods, or chattels of any of the 
 subjects of this Kingdom," this, T take it, can only be 
 saved from condemnation as an unconstitutional encroach- 
 ment upon the royal prerogative, in a time of practical 
 revolution, by referring it to the provisions of the great 
 charters for trial by jury. 
 
 Our English ancestors, at the time of our revolution, 
 had been constrained to regard the judicial power as a part 
 of the royal prerogative and inseparably connected with 
 
13 
 
 the execiitiA'e, while they had experienced, for genera- 
 tions, the evil of having its exercise committed to crea- 
 tures of the King's appointment — ^ too often discharg- 
 ing their functions in obedience to the will of tyrants, in 
 shameless disregard of the interests, rights and hberties 
 of the people. As Sugden says of the era of the English 
 Revolution: "In the minds of thinking men of that 
 period the Judges were the arbitrary and servile tools of 
 the Crown. With them the judiciary was represented 
 by the corruption of Bacon, the servility of Herbert and 
 the cruelty of Jefifries ; the atrocities of the bloody 
 assizes, the lawless despotism of the ship-money judg- 
 ment and the scandalous illegality of the dispensing 
 power." 
 
 Even after the great improvement introduced by the 
 1 2th and 13th William ///, in 1700, by which the tenure 
 of judicial office was changed from dc bene placite to con- 
 tinued good conduct — qttain din se bene gesserint, they 
 were still regarded with suspicion as agents of a vicious 
 system of privilege and a bloody code of criminal law and 
 characterized by Parr as " the furred homicides." 
 
 Nothing in the colonial history of this State tended to 
 weaken the distrust. It was rather intensified by their 
 experience here. By the instructions from the Duke of 
 York for their government, the colonists were denied 
 power to choose their local magistrates and " the choice 
 of all the oiBcers of justice was solely to be made by the 
 Governor." The Justices of the Peace for each riding 
 were thus named by him and held office only during his 
 pleasure, and the Governor, or any of his councillors, 
 might preside in their courts; while the Supreme Court 
 of the Province was composed of the justices with the 
 High Sheriff and the Governor and his Council. The 
 arbitrary and oppressive measures of such a governor as 
 
H 
 
 Lord Lovelace soon tested the quality of such a court, 
 when the remonstrances of the people against his illegal 
 acts were characterized by it as " false, scandalous, illegal 
 and seditious," while the Governor and Council ordered 
 the papers burned and their chief promoter to be 
 prosecuted. 
 
 We need not dwell upon these causes that led the 
 colonists to guard themselves against judicial power, 
 which, to their thinking, was too closely allied to the 
 executive and to royal prerogative, and to feel strongly 
 the necessity of retaining the entire sovereignty in their 
 own hands. All was peculiarly intensified, in the prov- 
 ince which became the State of New York, by the much 
 greater exhibition here of loyalty to the Crown and the 
 numerical and social strength of the Tories, by which 
 the Revolution, in this State, assumed so largely the 
 character and the bitterness of a domestic war. Nor 
 were they unfamiliar with such a theoretical depository 
 of the sovereignty for, as Coke had expressed the theory 
 of the English Constitution : 
 
 " The power and jurisdiction of Parliament is so tran- 
 scendent and absolute that it cannot be considered, either 
 for causes or persons, within any bounds." And Black- 
 stone had said : " It hath sovereign and uncontrollable 
 authority in making, confirming, enlarging, restraining, 
 abrogating, repealing, revising and expounding of laws, 
 covering matters of all possible denominations, ecclesias- 
 tical or temporal, civil, military, maritime or criminal, 
 this being the place where that absolute, despotic power, 
 which must in all governments reside somewhere, is 
 intrusted by the constitution of these Kingdoms. 
 ='' * * So long as the English Constitution lasts, we 
 may venture to affirm that the power of parliament is 
 absolute and without control." 
 
15 
 
 It is true that Lords and Kings were embraced in this 
 conception of parhament; but, as the colonists had rid 
 themselves of the King and had no lords, nothing 
 remained to embarrass them as the people in realizing 
 their ideal of free government by adopting a charter of 
 their rights and liberties in the Constitution of 1777. 
 And how did their conception find expression? 
 The controlling idea is expressed in the first clause : 
 " That no authority shall, on any pretense whatever, be 
 exercised over the people or members of this State, but 
 such as shall be derived from and granted by them." 
 Evidently no court could claim any jurisdiction whatever, 
 under this Constitution, excepting upon such grant of 
 authority as can be implied from the mere recognition 
 of its existence which follows. There is no express grant 
 of authority anywhere, although legislative and executive 
 power are specifically granted to the proper agents of the 
 people. 
 
 How completely the people retained the sovereignty 
 may be readily seen. 
 
 Their more direct representatives, the assembly, were 
 chosen every year. They elected the governor every 
 three years ; senators every four years, and the Assem- 
 bly controlled in selection of the treasurer. Senators, 
 selected by the Assembly annually, were absolute in the 
 Council of Appointment, which named every judicial 
 ofificer in the state, and these holding ofifice during good 
 behavior to the age of sixty, would inevitably be retired 
 at frequent intervals. The decision of all appeals, at law 
 and in equity, was controlled by the Senate, which also 
 controlled the result in cases of impeachment, Avhich must 
 originate with the Assembly. And all this is greatly 
 emphasized by the significant omission of any direct grant 
 of judicial power. All the more significant when we 
 
i6 
 
 recall the fact that all jurisdiction in equity had been 
 usurped by the Governor and his Council, in colonial 
 times, and this had been bitterly denounced as " contrary 
 to law, unwarrantable and of dangerous consequence to 
 the lil)erties and properties of the People." 
 
 How difTerent is the language of other constitutions. 
 W'e have already pointed out the formal and explicit lan- 
 guage of the Federal Constitution. Still more solemn 
 and impressive is the guarding of the judicial power in 
 those of most of the states. In that of Massachusetts 
 we find a type, which appears, in substance, in most of 
 the others, expressing the sanctity of the judiciary in the 
 following words : 
 
 " In the government of this commonwealth, the legis- 
 lative department shall never exercise the executive and 
 judicial powers, or either of them; the executive shall 
 never exercise the legislative and judicial powers, or 
 either of them ; the judicial shall never exercise the legisla- 
 tive and executive powers, or either of them ; to the end, 
 it may be a government of laws, and not of men." 
 
 A single example further, to be found in New Jersey : 
 
 " The powers of government shall be divided into three 
 distinct departments — the legislative, executive and 
 judicial ; and no person or persons belonging to, or con- 
 stituting one of these departments, shall exercise any of 
 the powers properly belonging to either of the others, 
 except as herein expressly provided." 
 
 Is it not clear that the pecuharity of our first Consti- 
 tution was due to a settled distrust of the judicial power 
 and consequent unwillingness to recognize it as a dis- 
 tinct and independent branch of government and deposi- 
 tory of sovereignty, equal in dignity and independence 
 with either the executive or legislative? Some indica- 
 
17 
 
 tion of this feeling may be found in an " Address to the 
 People of the State " issued by a Committee of " the vio- 
 lent Whigs," on the occasion of alleged setting aside of a 
 legislative Act in 1784, declaring, as follows: 
 
 " That there should be a power vested in Courts of 
 Judicature, whereby they might control the Supreme 
 Legislative power, we think is absurd in itself. Such 
 powers in courts would be destructive of liberty and 
 remove all security of property." 
 
 The Constitution of 1821, so far as its provisions bear 
 upon the question, rather emphasizes those of the first 
 Constitution than otherwise. It broadens the elective 
 franchise, while reducing the executive term to two years, 
 and it gives to the legislature absolute power of removal 
 of all officers holding office during good behavior. It 
 substitutes the Governor and Senate for the Council of 
 Appointment and gives to the Governor the same check 
 upon legislation which had been held by a Council of 
 Revision. It repeats the vesting of the legislative power 
 in the Legislature and the executive power in the Gover- 
 nor, but is equally silent as to the vesting of judicial 
 power. 
 
 Under the operation of these two Constitutions there 
 arose and increased a spirit of hostility to an appointive 
 judiciary and resentment of its real or supposed freedom 
 from responsibility to the people and arbitrary temper, 
 intensified and almost to the point of violent, open resist- 
 ance, by a conviction, in many portions of the State, that 
 the courts were controlled by the large landlords and 
 the decisions were unjust and oppressive, in disregard 
 of manifest rights of the common people ; which resulted 
 in the radical changes of our third Constitution, in 1846. 
 
 Three of these changes were of especial importance in 
 connection with the judicial power, viz. : making the judi- 
 
ciary elective, by direct vote of the people, prescribing 
 short terms for the judges, and, consequently, occasion- 
 ing frequent elections, and authorizing control of Pro- 
 cedure by the Legislature. The first two had but one 
 purpose, hardly disguised, which was to render the judi- 
 ciary still more dependent on the popular judgment upon 
 its discharge of its functions, capable of change in its per- 
 sonnel at the popular will and to cause its work to be per- 
 formed under the influence of a direct temptation to so 
 discharge its duties as to win popular favor and thus 
 secure re-election. The evil of this last is manifest to all 
 and, notwithstanding the great benefit which has resulted 
 in so many cases from the re-election of learned and 
 honorable judges, there would' seem to be no escape from 
 its disadvantages in any changes less radical than to a 
 single term and ineligibility for the succession. 
 
 The effect upon the character of the judges or their 
 work, it is no part of my purpose to discuss. Sufficient 
 to say that experience has induced a lengthening of the 
 judicial term to nearly double that fixed by the Consti- 
 tution of 1846. 
 
 But the introduction of direct legislative control of pro- 
 cedure has produced extraordinary and, doubtless, 
 unforeseen results and was, in itself, the most significant 
 evidence of the peculiar position of the judicial power in 
 our constitutional system. Such control was declared in 
 the indirect way of requiring the appointment by the 
 Legislature of a commission to reform practice and pro- 
 ceedings of the courts of record and to report thereon 
 to the Legislature, subject to its adoption. The result, 
 as is well known to you all, was the adoption and enact- 
 ment as law of the Field Code. 
 
 No discussion of the alleged merits or defects of the 
 new procedure is proposed; but I cannot doubt that, if 
 
the judicial power had been plainly vested in the courts 
 by any clear constitutional provision — if the Judiciary 
 had really been recognized as one of a trinity of 
 sovereignty, equal in dignity and independence with the 
 Legislative and Executive, or there had been any desire 
 or intent to make it such, no scheme of dictation to it 
 by the Legislature would have been tolerated for a 
 moment. But the Constitution of 1846 — and the same 
 is true of our present Constitution — makes no such 
 declaration as to the judicial power. Both are content 
 to do, practically, what the first Constitution did, 
 simply recognize the Courts : " There shall be a Court of 
 Appeals." " There shall be a Supreme Court." 
 
 The practice or procedure of a Court is simply the 
 form or method in which it exercises its jurisdiction; 
 brings suitors and subject matter to its bar and deter- 
 mines the questions which it entertains. As a distinct 
 governmental agency, vested with a certain department 
 of sovereignty, it should be no more subjected to inter- 
 ference with the manner of its exercise of that sovereignty, 
 by enactment of the Legislature, sanctioned by the 
 approval of the' Governor, than the Legislature or 
 Governor should be subjected to its interference with 
 the manner of their discharge of their respective func- 
 tions. And if the Legislature has a right to so dictate, 
 manifestly the courts are at its mercy and, under pretense 
 of reforming their practice, it can make it so burdensome 
 and difficult as to practically defeat it altogether and 
 thus deprive the courts of all jurisdiction. 
 
 The fate of an attempt by Congress to interfere with 
 procedure in the State Courts, when the financial necessi- 
 ties of the Civil War compelled resort to every form of 
 taxation within its power, illustrates this principle. A 
 stamp tax was imposed upon the process of State Courts, 
 
20 
 
 and many of you remember the time when, for a period, 
 every summons bore a fifty-cent United States internal 
 revenue stamp. This encroachment of the Federal Gov- 
 ernment was ended, however, almost as soon as chal- 
 lenged, and upon the principle, expressed by a distin- 
 guished jurist of our own State, Mr. Justice Nelson, in 
 The Collector v. Day (7 Wall., at page 127): "In both 
 cases the exemption rests upon necessary implication and 
 is upheld by the great law of self-preservation; as any 
 government wliose means employed in conducting its 
 operations are subject to the control of another and dis- 
 tinct governmicnt, can exist only at the mercy of that 
 government." The principle remains, if we so paraphrase 
 this language as to say: "Any department of govern- 
 ment, whose means employed in conducting its opera- 
 tions are subject to the control of another and distinct 
 department, can exist only at the mercy of the latter." 
 
 Entirely aside from the question of how far our proce- 
 dure has been or has not been improved by this legis- 
 lative interference, all must recognize that one evil, of 
 great magnitude, has resulted. The procedure, to its 
 minutest detail, is now governed by positive statute, 
 which, like every other statute, may be claimed to be in 
 need of judicial construction. It follows that our present 
 system presents nearly 4,000 la-a's, the meaning of each 
 of which may be challenged by any attorney, whose real 
 or supposed interest prompts such challenge, and must 
 then receive from the Courts judicial construction. This, 
 I take it, is the real cause of the enormous multiplication 
 of cases on practice, to the distress and almost despair of 
 Bench and Bar. 
 
 Another indication of the dependent position of our 
 Judiciary is to be found in the provision of the present 
 Constitution by which our intermediate courts of appeal 
 
— the Appellate Divisions — are composed of Justices 
 assigned to that duty by the arbitrary selection of the 
 Governor, who also selects the Presiding Justices thereof. 
 Such assignment is usually considered, as it should be, a 
 promotion, to be honorably desired and highly esteemed, 
 and it is unnecessary to discuss the tendency of placing it 
 at the unquaHfied disposal of the Executive. All this is 
 perhaps still more applicable to the power given to the 
 Governor, under certain conditions, of transferring to the 
 Court of 'Appeals four Supreme Court Justices selected 
 by himself, and the power which the Legislature has 
 conferred upon him, with very doubtful warrant, of 
 appointing extraordinary terms of the Supreme Court, 
 fixing time and place therefor, and, except of the Appel- 
 late Division, naming the Justice to hold the same, upon 
 his simple opinion that the public interest so requires. 
 
 It is true and very fortunate for the welfare of this 
 State that the Judges early assumed their independence 
 and lawful enjoyment of judicial power, and, upon this 
 assumption, claimed and exercised jurisdiction to bring 
 executive or legislative acts to the test of such restric- 
 tions as were found in the Constitution. But it is instruct- 
 ive to observe that in The People x\ Pratt (17 John., 195) 
 — perhaps the first reported assertion of such jurisdic- 
 tion — Chief Justice Spencer found his warrant in the 
 decisions of the Supreme Court of the United States, 
 where the judicial power is expresslv vested by the 
 Federal Constitution. Indeed, it is probably true, as 
 suggested by Chancellor Kent, that the Council of Revi- 
 sion, composed of the Governor, Chancellor and Justices 
 of Supreme Court, whose records he characterizes as 
 " a monument of the wisdom, firmness and integrity of 
 the council," exercised such useful supervision that no 
 earlier case of unconstitutional legislation was presented 
 
22 
 
 in litigation. It must also be remembered that, by the 
 time when this decision was made, in 1819, the whole 
 country had become familiar with this view of the vesting 
 of the judicial power, through the decisions of the Federal 
 Courts and those of other States, in which all judicial 
 power had been expressly vested by their several 
 Constitutions. 
 
 To all this it may be answered that our system, under 
 all of our Constitutions, has worked well and the 
 authority of our Courts has not been seriously ques- 
 tioned. And this must certainly, in a general sense, be 
 admitted. But that authority, to the eternal honor of 
 Bench and Bar, has been found rather in the learning, 
 purity and dignity of the Judges than in any wisdom 
 displayed in framing our Constitution. They have recog- 
 nized the vital necessity to good government of an inde- 
 pendent Judiciary, powerful to restrain tendencies to 
 excess or usurpation in the other branches of govern- 
 ment, and, encouraged by the attitude of Courts at Wash- 
 ington and in other States, have boldly asserted the like 
 position for themselves, without too critical analysis of 
 our charters to find its absence from them. They have 
 felt that the judicial power must be somewhere, and 
 should be in the Courts, and have believed themselves 
 justified in claiming it for themselves. And all has gone 
 well. Even so, as appears from the historical sketch by 
 Judge Vann, in Matter of Steinzvay (159 N. Y., 250), the 
 claim rests upon legislative enactment and the Legisla- 
 ture has assumed authority to declare its extent, by 
 section 217 of the Code of Civil Procedure, and that it is 
 created and limited by the Constitution and laws of the 
 State. While, in case of any serious conflict of authority, 
 involving great popular excitement, what safety would be 
 found in the most emphatic declaration as to its own 
 
23 
 
 power, made by the Judiciary, in the absence of all 
 express grant in the Constitution? 
 
 But how manifest is the change in our people ! How 
 many thousands, escaping from practical slavery, have 
 not only reached our shores, but obtained citizenship, 
 who hardly distinguish law from tyranny — whose con- 
 ception of liberty is the absence of all law ! How steadily 
 grows the cloud of that threatened storm of envy and 
 hatred of the vast accumulations of wealth and unbounded 
 display of luxury, which have become so familiar to us ! 
 How conspicuously presented on every hand are the 
 breaches of trust, corruption in politics, every form of 
 that moral decay, so expressly defined in current slang by 
 the word " graft ! " Can it be questioned that among our 
 people, as a whole, there is rapidly growing want of confi- 
 dence in the Courts and contempt for the position and 
 authority of our Judges ? 
 
 On the other hand, we have been favored, at our last 
 regular meeting, with a learned and somewhat impas- 
 sioned argument, by a member of our Association, for 
 the practically unlimited sovereignty of the Executive, 
 " uncontrolled by Congress, unrestrained by the Courts, 
 vested with plenary constitutional power and absolute 
 constitutional discretion — a sovereign over 80,000,000 
 people," because, forsooth, the President is required to 
 take an official oath " to faithfully execute the office of 
 President," and " preserve, protect and defend the Con- 
 stitution ; " happily oblivious of the fact that all federal 
 officers, and officers of this State, are equally bound by 
 oath to support the Constitution. The like claim might 
 be made, with hardly less force, as to our own Governor. 
 This, we think, must be regarded as another " sign of the 
 times." 
 
24 
 
 The words of Hamilton are still true, that " the courts 
 of justice are to be considered as the bulwarks of a 
 limited constitution against legislative encroachment." 
 * * * That the judiciary is beyond comparison, the 
 weakest of the three departments of power; that it can 
 never attack with success either of the- other two; and 
 that all possible care is requisite to enable it to defend 
 itself against their attacks." " The complete independ- 
 ence of the courts of justice is peculiarly essential in a 
 limited Constitution.'' The warning of Washington is still 
 needed — perhaps more than ever needed: "The spirit 
 of encroachment tends to consoHdate the powers of all 
 the departments in one, and thus to create, whatever the 
 form of government, a real despotism." And these 
 should impress themselves the more strongly, in our 
 State, where the Constitution has left the judicial power 
 in so anomalovts and indefinite a position. 
 
 Let the Bar of the Empire State, then, and' particularly 
 this honored Association, never fail in support of the 
 independence, dignity and power — the sovereignty , — 
 which the Judiciary has so worthily assumed and so 
 admirably exercised, so that these may never- be lost or 
 called in question. Let us exert our every influence 
 towards the selection of fit men and sustaining their just 
 authority. Let us never excuse or condone such con- 
 duct on their part as shows them morally unfit for the 
 judicial position; and let us jealously guard' the judicial 
 power from every encroachment by the Executive or 
 Legislative departments of the State, " to the end it may 
 be a government of laws and not of men." 
 
CIRCULAR AND CATALOGUE 
 
 ALBANY LAW SCHOOL, 
 
 CONNECTED WITH 
 
 UNION UNIVERSITY, 
 
 TWENTY-NINTH YEAR. 
 
 1 880. 
 
 ALBANY: 
 
 MUNSELL, 82 STATE ST. 
 1880. 
 
CIRCULAR AND CATALOGUE 
 
 ALBANY LAW SCHOOL, 
 
 CONNECTED WITH 
 
 UNION UNIVERSITY, 
 
 TWENTY-NINTH YEAR. 
 
 1 880 
 
 ALBANY: 
 
 MUNSBLL, 83 STATE ST. 
 
 1880. 
 
Albany Law School. 
 
 J^LB^nSTY Xj^-W SOHIOOXj. 
 
 BOARD OF TRUSTEES. 
 
 President. 
 Hon. THOMAS W. OLCOTT. 
 
 Scrrcinry, 
 ORLANDO MEADS, LL.D. 
 
 Resv. ELIPHALET NOTT potter, D.D., LL.D., 
 President of Union College. 
 
 Hon. SANPORD E. CHURCH, 
 Chief Judge Court of Appeais. 
 
 Hon. GEORGE F. DANPORTH, LL.D., 
 
 Assoaate Judge Court of Appeals. 
 
 Hon WILLIAM L. LEARNED, LL D., 
 
 Justice of Supreme Court. 
 
 Hon. CHARLES C. DWIGHT, 
 Justice of Supreme Court. 
 
 Hon. JAMES C. SMITH, 
 
 Justice of Supreme Court. 
 
 Hon. JUDSON S. LANDON, 
 
 Justice of Supreme Court. 
 
 Hon. GEORGE BARKER, 
 
 Justice of Supreme Court. 
 
 Hon. AMASA J. PARKER, LL.D., 
 
 Late Justice of Supreme Court. 
 
 Hon. MATTHEW HALE, Gen. JOHN P. EATHBONE, 
 
 Hon. ROBEKT H. PR0YN, Hon. BRADPORD R. WOOD, 
 
 Gen. PRANKLIN T0WN8END, Hon. GEORGE DAWSON, Esq., 
 THOMAS HUN, M.D., CHAS. VANBENTHUYSEN, Esq., 
 
 GEORGE DEXTER, Esq., HENRY H. VAN DYCK, Esq., 
 
 HENRY II. MARTIN, Esq., THOMAS MoELROY, Esq., 
 
 CHARLES B. L.\NSIN6, Esq., DUDLEY OLCOTT, Esq., 
 HENRY Q. HAWI.Eir, Esq , MARCUS T. HUN, Esq., 
 
 AMASA J. PARKER, Jk., Esq. 
 
Albany Law School. 
 
 T^LBJ^nSTY Xj^^W^ SOHIOOL- 
 
 FACULTY. 
 
 Hon. WILLIAM L. LEARNED, LL.D., 
 
 Gicil Law and Equity Jurisjyrudenoe. 
 
 Hon. HORACE E. SMITH, 
 
 Dean of tJie Law School. 
 Personal Properly, Contracts and Commercial Law. 
 
 Hon. MATTHEW HALE, 
 
 Criminal Laio and Personal Sights. 
 
 President ELIPHALET NOTT POTTER, DD., LL.D, 
 
 Feudalism and Constitutional Law. 
 
 HENRY COPPEB, LL.D., 
 
 International Law. 
 
 H. E. SICKELS, Esq., 
 Law of Skidsnce. 
 
 CHARLES T. F. SPOOR, Esq. 
 Ih'aetice and Pleading at Common Laio and binder tlie Code. 
 HENRY S. McCALL, Esq., 
 Beat Property — Wills 
 
 IRVING BROWNE, Esq., 
 
 Domestic Pelations. 
 
Alhaxy Law Schooi.. 
 CALENDAR, 
 
 18V9-80. 
 
 1879. 
 Sept. 2, Fall Term begins. 
 Nov. 21, " " ends. 
 
 " 24, Winter Term begins. 
 Dec. 23, Holiday Vacation begins. 
 
 1880. 
 Jan. 0, Winter Term resumes. 
 Feb, 27, " " ends. 
 
 Mah. 3, Spring " begins. 
 May 21, " " ends. 
 
 CALENDAR, 
 
 1880-81. 
 
 1880. 
 
 Sept. 7, Fall Term begins. 
 Nov. 36, " ■' ends. 
 
 " 30, Winter Term begins. 
 Dec. 20, Holiday Vacation begins. 
 
 1881. 
 Jaist. 3, Winter Term resumes. 
 M.\R. '1, " " ends. 
 
 " 8, Spring " begins. 
 May 27, " " ends. 
 
Albany Law School. 
 
 S T TJ ID El n^ T S 
 
 1879-80. 
 
 Name. 
 
 Bellows, Edwin P. 
 Bennett, James J. 
 BoGEiiT, Taylor 0. [If. 8.} 
 BooTnnOTD, Jambs T. 
 Cartwright, Cyrus M. 
 Chii.ds, William A. 
 Church, Frederic II. 
 CoNKLiN, Douglass [iV! Y. If.] 
 Cook, Charles R. [MeG. U.} 
 Cornell, Charles E. [6' C] 
 Crane, William H. [3". Y. U.] 
 Cutler, Edward D. 
 Davis, Henry W. 
 Dayton, Judson 
 Dean, William E. 
 DucKWiTZ, Ferdinand H. 
 Eckels, James H. 
 Ellwanger, Wm. D. [Y. C] 
 Ernst, Chas. B. [Mi. St. M. C] 
 Fox, John H. [D. C] 
 Glbdhill, Walter M. 
 Grant, John P. , 
 Green, Lindsby \_N. S.'\ 
 Guthrie, Wm. R. [D. C] 
 Hailbs, Charles J. 
 Halpbn, Daniel P. [C. IT.] 
 Hardib, Robert W. 
 Hasie, George E. 
 Hodgman, William L. [K C] 
 
 Residence. 
 
 QhmraviUe. 
 Albany. 
 
 Alexandria Bay. 
 Newiurgli. 
 Bacbury. 
 Cnmipaut, Ohio. 
 Friendship. 
 Huntington, L. I. 
 Hemmingford, Que. 
 Albany. 
 Port Jereis. 
 Srhencctady. 
 Alburgh Sp's, Vt. 
 Milton. 
 FishUll. 
 Loekport. 
 Pi-incetun, 111. 
 Jiociiester. 
 Rochester. 
 Winchendon Mass 
 Ciistile. 
 Stamford. 
 Goeymana HoUov. 
 Troy, Iowa. 
 Albany. 
 Albany. 
 Albany. 
 
 Vioksburg, Miss. 
 Bath. 
 
 City Addre88. 
 
 5 Clinton Place. 
 5 Charles St. 
 13 Chestnut St. 
 61 Lancaster St. 
 190 Jay St. 
 16 Jay St. 
 74 Eagle St. 
 136 State St. 
 356 Hudson. \vo. 
 136 Eagle Si. 
 23 Jay St. 
 43 Jay St. 
 239 Madison Av. 
 665 Broadway. 
 70 Jay St. 
 356 Hudson .\ve. 
 61 Lancasicr. 
 263 Hudson .\v. 
 17 Park St. 
 203 riamilton St. 
 17 Park St. 
 280 Clinton Ave. 
 16 Jay St. 
 339 Hamilton St. 
 197Haniillon St. 
 37 S. Ferry St. 
 15 Dallins St. 
 756 Broadway. 
 363Hud8on Ave. 
 
6 
 
 Albany Law School. 
 
 HoRTON, Cyrus W. [ U. <S. I^.A.] 
 Hdrlbut, Gansevoort DbW. 
 Jones, Hadley. 
 Kahmann, J. William. 
 Lary, Herman S. 
 Lawson, Joseph A. 
 Lyon, Nathan L. 
 Mahan, Bryan F. 
 Markbl, Henry a. L. [Wit. C] 
 MoClbllan, George. 
 McGhanahan, William J. 
 Miller, DeWitt C. 
 Miller, Jervis L. 
 Mix, Frederic L. 
 Moffat, Edmund J. [C U.] 
 Murphy, Josiah R. 
 Myers, Max. 
 NiVBR, Prank S. 
 NODINB, Aldbn [iV. S.} 
 Norton, Nathaniel W. [D.O.} 
 Ombony, John, Jr. 
 Osgood, John B. 
 Pattin, William B. [C U.] 
 Perkins, John B. 
 Perrin, Edwin O. Jr. [Y. G.} 
 Reed, Edward T, [T. 8. S.] 
 Reynolds, Louis H. 
 Rollins. Herb't M. [T. W. U.] 
 Rowland, Orvillb L. 
 Sexton, Allan H. {Mich. U.] 
 Shaw, Willard P. 
 Smith, George W. [iV. S.] 
 Speir, Stuart G. 
 Splane, Joseph P. [W. C] 
 Stevens, William D. [iV. <9.] 
 Sweeny, Edward. 
 
 PeeksMU. 
 
 AVxmy. 
 
 Herkimer. 
 
 WasJiiiir/ifjii. Mu. 
 
 Albany. 
 
 Al/iiniy. 
 
 FrinikUn. 
 
 NeirLoiidoH, Conn. 
 
 Ashland, Ohio. 
 
 Chiiiluim Mlliir/e. 
 
 JRosendale. 
 
 M'eeport, 111 
 
 Indian Fields. 
 
 KiiiderJiook. 
 
 Albany. 
 
 Woodstock, JSf. B. 
 
 AWany- 
 
 Batli-o n-tlie-Hudu n. 
 
 Coeymans Hollow. 
 
 Bvffalo. 
 
 PeekskiU. 
 
 Fort Edward. 
 
 Fort Plain. 
 
 Port Henry. 
 
 New York City. 
 
 Albany. 
 
 Valatie. 
 
 Henry, 111. 
 
 Boioland, Pa. 
 
 Mew York City. 
 
 Delhi. 
 
 Eoxbury. 
 
 Albany. 
 
 Alleghany City, Pa. 
 
 Mt. Vision. 
 
 Red Bluff, Cal 
 
 17 Park &t. 
 
 126 State St. 
 189 Hudson Ave. 
 71 Hamilton Si. 
 44 LaiiCiister St. 
 13G State St. 
 12() State St. 
 
 12 Chcslnut St. 
 339 Madison Av. 
 193 Hudson Av. 
 18 Lancaster St. 
 343 Madison A k-. 
 88 Hawk St. 
 184 Wash'n. Av. 
 
 13 Lancaster St. 
 13 First St. 
 
 99 State St. 
 34 i Madison Av. 
 303HanultonSt. 
 51 Maiden Lane. 
 
 20 Jay St. 
 17PaikSt. 
 46 N. Pearl St. 
 154 State St. 
 5 Clinton Place. 
 
 5 Clinton Place. 
 87 Columbia St. 
 239 Madison Av. 
 338 Wash'n. Av. 
 203 Jay St. 
 . 203 Madison Av. 
 68 Eagle St. 
 13 Lancaster St. 
 
Albany Law School. 
 
 Talbott, Feank W. [S. U.] 
 Tompkins, Mybon N. [G. U.~\ 
 TJllbry, Alonzo B. 
 VanSantvoobd, Sbtm'r [C.C.] 
 Van Wirt, P. Campbell. 
 Walker, Albert D. 
 Waters, Alfred N. 
 Wells, Walter [ U. C.J 
 WiLLSEA, J. Barnard. 
 Whitcomb, Darwin E. 
 Whitcomb, Walter S. 
 White, William J. 
 Worcester, Ed'nD., Jr. [I'.C.] 
 Yeomans, Ward B. IM. U.] 
 Young, CnABLES 0. [P. C] 
 
 Wis. 
 
 Syracuse. 
 
 Ithaca. 
 
 Fort Plain. 
 
 Troy. 
 
 Melrose. 
 
 Chreenhush. 
 
 IVempelean, 
 
 Johnstoien. 
 
 Limn. 
 
 Cambridge. 
 
 Kcene, Jff. II. 
 
 New Bedford, Mass. 
 
 Albany. 
 
 Gold Spring, 
 
 Port Jernis, 
 
 16 Jay St. 
 70 Jay St. 
 20 Jay St. 
 
 185 Hudson Av. 
 Greenbusk. 
 665 Broadway. 
 
 17 Park St. 
 
 339 Hamilton St. 
 339 Hamilton St. 
 17 Park St. 
 140 Hudson Av. 
 88 Lancaster St. 
 189 Hudson Av. 
 43 Jay St. 
 
 ABBREVIATIONS. 
 
 D. C. Dartmouth College. 
 
 G. G. Columbia College. 
 
 G. U. Cornell University. 
 
 1. W U. Illinois Wesleyan University. 
 
 M U. Madison University. 
 
 McG. U. McGill University. 
 
 Mich. U. Michigan University. 
 
 Mt. A. G. Mt. Allison College. 
 
 M. St. M. G. Mt. St. Mary's College. 
 
 W. T. U. New York University. 
 
 N. S. • Normal School. 
 
 P. G. Princeton College. 
 
 S. U. Syracuse University. 
 
 JJ. G. Union College. 
 
 U. S. N. A. U. S. Naval Academy. 
 
 W. G. Washington College. 
 
 Wit. C. Wittenberg College. 
 
 T. G. Yale College. 
 
 Y- 8. 8. Yale Scientific School. 
 
Albany Law School. 
 
 cxj^ss o:Ei,arjL.i<ixzj^n:xoi>r 
 
 Class of 1880. 
 
 CLASS OEGANIZATrON. 
 
 Chaelbs B. Eknst, 
 Bryan F. Mahan, 
 Ward B. Yeomans, 
 Ferdinand H. Duckwitz, 
 Stuart G. Spbib, 
 Edmund J. Moffat, 
 Charles R. Cook, 
 John H. Fox, 
 DeWitt C. Miller, 
 Gansevoort DeW. Hurlburt, 
 
 President. 
 
 ] ni Vice-Presidoiit. 
 
 2d Vice-Prcnidcnl 
 
 Secretary. 
 
 Treasurer. 
 
 Historian. 
 
 Poet. 
 
 Prophet. 
 
 Editm: 
 
 Marshal. 
 
 Executive Committee : 
 J. William Kahmann, Ghairnuui. 
 George McClbllan, H. A. L. Markbl. 
 
 CXj^SS GXjTJBS. 
 
 Kent Club. 
 
 Brayan F. Mahan, 
 Nathan L. Lyon, Vice-Prendeid. 
 
 William R. Guthrie, Secretary. 
 
 Darwin E. Whitcomb, Treasurer. 
 
 23 Members. 
 
 Edwards Practice Club. 
 Jobiah R. Murphy, President 
 
Albaxy Law School. 
 
 Chahlbs J. Hailbs, Vice-President. 
 
 Ferdinand H. Duokwitz, Seeretnry. 
 
 J. William Kakmann, ' I'reasurei: 
 35 Members. 
 
 Smith Club. 
 
 Herbert M. Rollins, Presicleitt. 
 
 Hadley Jones, Vice-PfeKideiit. 
 
 Bryan F. Maiian, Secretary. 
 
 John B. Perkins, Ti-ecmm-er. 
 SO Members. 
 
 Siekels Club. 
 
 William L. Hodgman, President. 
 
 Frank W. Talbott, Vice-President. 
 
 William D. Ellw anger, Treasurer. 
 
 Charles B. Ernst, SecreUii'i/. 
 
 19 Members. 
 
 Spoor Club. 
 
 William D. Stevens, President 
 
 Ward B. Ybomans, Vioe-F^ 
 
 Henry A. L. Markel, Secretary. 
 
 Joseph P. Splanb, Treasurer 
 35 Members. 
 
10 Albany Law School, 
 
 _A.rLnnal Circular. 
 
 With the opening of the Fall Term of 1870-80, the 
 Albany Law School began its twenty-ninth year of suc- 
 cessful work. It is almost the oldest institution of the 
 kind in the Union, there being at the time of its organiza- 
 tion but one other Law School of any reputation in exist- 
 ance, viz : the one at Cambridge. 
 
 Since 1851, over twenty-five hundred students have at- 
 tended its lectures, and its graduates, dispersed throughout 
 the nation number many of the most successful and honor- 
 able men in the profession of the law. From their ranks 
 the bench has been frequently recruited. 
 
 Its instructors have always been men of repute and stand- 
 ing, both for professional learning and personal character. 
 
 Among them may be named Judges Iea Harris, Amasa 
 J. Parker and William L. Learned, of the Supreme 
 Court ; the late Judge William F. Allen of the Court 
 of Appeals, and the late Profs. Amos Dean and Isaac 
 Edwards, the latter of whom is widely known as an author 
 on legal subjects. 
 
 Under rule Two of the New York Supreme Court stu- 
 dents applying for admission "must sustain a satisfactory 
 examination upon the law of real and personal property, 
 contracts, partnership, negotiable paper, principal and 
 agent, principal and surety, insurance, executors and ad- 
 ministrators, bailments, corporations, personal rights, do- 
 mestic relations, wills, equity jurisprudence, pleadings, 
 practice, and evidence, and the rules of the court " — a field 
 
Albany Law School. 11 
 
 of study broad enough to require much close reading. 
 How many students at law prepare themselves for a search- 
 ing examination upon all these subjects ? Preparing for 
 a profession, or in studying a' science or an art, our young 
 men resort with one consent to a professional school ; and 
 it is now conceded on all hands, by the bench and the bar, 
 that a special course of study under competent instructors 
 is one of the best means of securing that familiar know- 
 ledge of the law which fits a man to deal with the import- 
 ant matters of justice and equity. 
 
 Facility and accuracy in practice are best acquii'ed in 
 an office ; and the study of Law in its principles, is prose- 
 cuted with the greatest advantage in a School of Law. 
 The present condition of the Common Law, combined and 
 blended in a system of remedies, renders both of these 
 modes of study quite indispensable. While the student 
 must learn the practice, he must also master the law as a 
 science ; he must study it in its different branches, and 
 learn to apply it to facts and transactions as they may 
 arise in the ordinary course of life : he must discern the 
 purpose of the law, he must appropriate its spirit, its con- 
 servative wisdom — that public policy which upholds and 
 enforces so many of its rules. Impressed with this belief, 
 we adhere to our long established course of one year ; one 
 year added to a previous course of reading, without ex- 
 cluding beginners. 
 
 The recent rules of the Court of Appeals favor a course 
 of study in a law school. Requiring one year's study in an 
 office, they permit a student to fill out his clerkship, at its 
 beginning or at its close, in a school devoted to the study 
 of the law. (Rule 3 as amended March 19, 1878.) 
 
12 Albany Law School. 
 
 After twenty-eight years of successful work, we repro- 
 duce the words and intend to perpetuate the spirit, of the 
 founders of this school. 
 
 " The Trustees and Faculty submit the following as their 
 reasons for organizing a Law School — the objects they 
 propose, the methods adopted for their accomplisliment, 
 and the facilities they have it in their power to offer for 
 teaching the various branches of the law both as a sciexce 
 and an art. They have felt the great and almost total want 
 of all the aids so easily furnished, and so very essential, in 
 enabling the young lawyer to start successfully in his pro- 
 fessional career. The student of medicine and surgery 
 can resort to schools in which he can be thoroughly in- 
 structed in all the principal branches of his profession, 
 while the student of law enjoys few opportunities for 
 acquiring anything more than he is enabled to obtain by 
 reading in a lawyer's office. This furnishes very imperfect 
 means either of rendering him a sound, well-read lawyer ; 
 a ready, correct practitioner ; or a fluent and effective 
 speaker. He usually commences with few, if any, general 
 directions as to his course of reading, and is seldom,or never 
 examined as to what he has read. Having no previous 
 ideas in reference to legal principles, he reads Vith very 
 little benefit. He has no landmarks to guide him, no fixed 
 points to which he can refer, and around which he can 
 arrange his acquisitions. Besides, the law, in some of its 
 features, is subject to great changes. Kew principles and 
 practices are introduced, and old ones cease to possess 
 their original force. Even those which are regarded as 
 well settled are being modified to satisfy new wants, to 
 
Albany Law School. 13 
 
 meet the exigencies of new branches of business, or to be 
 come adapted to the requisitions of an ever refining, 
 enlarging and progressing civilization. Amid this suc- 
 cession of principles, these variations and modifications in 
 the direction and operation of their vital forces, how is the 
 unaided student to be guided in his reading ; how enabled 
 to avoid the treasuring up of obsolete principles ; how 
 prevented from mingling error with truth — thus laying 
 him under the necessity, when in actual practice, of un- 
 learning much that he has acquired, and of acquiring much 
 that he has never learned. All this to a lawyer's mind, 
 is sufficiently obvious. He has realized it all. He has 
 also felt the force of another and a higher truth ; viz : that 
 the tnere learning of lav; is 7iot learning how to practice it. 
 
 " The student wlio is quietly reading law in the corner 
 of an office in a country village, or even in a city, may 
 imagine he is preparing himself to climb the heights of his 
 profession, and may entertain dreams of future greatness ; 
 but he little api^rehends the stern realities that will cluster 
 around him when he comes to assume the responsibilities 
 of business. Who would think of committing a ship on the 
 ocean to the guidance of a youth who had only studied nav- 
 igation in his closet ? And yet he would be equally as well 
 fitted to direct it successfully through sunshine and storm 
 as the young legal practitioner would the trial of a cause 
 when he first emerged from the recess of a lawyer's office, 
 with no more knowledge or other resources than were there 
 accessible. 
 
 "Impressed with this view, and feeling strongly the 
 urgency of the demand for a metliod of instruction which 
 shall be conducted on correct principles, and with the de- 
 
14 Albany Law School. 
 
 sign of instructing the student in the art as well as in the 
 science of the law — of fitting him to enter at once upon 
 the successful practice of his profession, the Trustees have 
 organized a Law School, which they hope and trust will 
 meet and satisfy the wants of the present time. It is their 
 intention to make it one of the most thorough Schools in 
 the Union. 
 
 " Our main object is to aid the student who enters upon 
 the study with a view to the profession. At the same time 
 we receive many young men who pursue the study of the 
 law as a means of useful and liberal education. With us, 
 as in other countries, a knowledge of the law is important 
 to the scholar, the statesman and the man of business. " 
 
 Departments and Topics. 
 
 The Faculty, in order to systematize their labors, and thus 
 render them the more effectual, have arranged the legal 
 topics upon which they lecture in several branches. Three 
 terms complete the course of instruction. A student com- 
 mencing with any term, by attending that and the two suc- 
 ceeding ones, will complete the course ; and may become 
 a candidate for graduation ; and as one term is not much 
 dej)endent upon another in the study and mastery of its 
 approi^riate tojjics, the student may enter at the begin- 
 ning of either term. 
 
 The following is the list of topics and instructors for the 
 present year : 
 
 Fall Teem, 1880. 
 
 Personal Property. 
 
 Contracts. ]■ lion. IIoeace E. Smith. 
 
 Partnerships. 
 
Albany Law Scpiool. 
 
 15 
 
 Equity Jurisprudence. 
 Equity Practice. 
 
 Soui'ces of Municipal Law. 
 Real Property. 
 Fixtures. 
 
 I Hon. Wm. L. Learned. 
 
 )■ H. E. SiCKELs,, Esq. 
 
 i Henry S. McCall, Esq. 
 
 Winter Teem, 1880-81 
 
 Corporations. 
 Contracts of Sale. 
 Negotiable Paper. 
 Suretyship and Guarantee. 
 
 Civil Law. 
 Trial of Causes. 
 Personal Rights. 
 Criminal Law. 
 Domestic Relations. 
 
 Hon. Horace E. Smith. 
 
 Hon. Wm. L. Learned. 
 
 Hon. Matthew Hale. 
 }■ Irving Browne, Esq. 
 Spring Term, 1881. 
 
 Bailments. 
 
 Insurance. 
 
 Agency. 
 
 Insolvent and Bankrupt Laws. 
 
 Torts. 
 
 Hon. Horace E. Smith. 
 
 Practice and Pleading under ) ^^^^_ ^ j, ^ j,^^ 
 
 the Code and at Common Law. J 
 
 ™«- ■, A T ■ ■ 1 . I Henry S. McCall, Esq. 
 
 Executors and Administrators. ) 
 
 Evidence. !^ H. E. Sickels, Esq. 
 
 During the year President Potter will lecture on Feud- 
 alism and Constitutional Law, and Prof. Henry Coppee on 
 International Law, and a course of lectures on Medical 
 Jurisprudence will also be given. 
 
16 Albany Law School. 
 
 Method and Means of Instruction. 
 
 These are mainly by lecture and examination. Two jiro- 
 f essors lecture and examine daily, except Saturday, through - 
 out the year. 
 
 All the lectures are oral, and are expositions of legal prin- 
 ciples with illustrations and applications including citations 
 from and references to the latest adjudged cases. They 
 are also accompanied by such references, hints, and sug- 
 gestions as are deemed the best calculated to enable the 
 mind the more thoroughly to the master and retain them. 
 
 The Faculty have, however, a higher aim than simply 
 teaching young men the Law. They will also use their 
 best endeavors to teach those who are intending to enter 
 the profession to be lawyers. This is felt to be an arduous 
 and difficult task. It is training the mind to a right use 
 of its own faculties. It is giving it a power over its own 
 resources, and enabling it fully to avail itself of its own 
 stores of knowledge. 
 
 This is sought to be accomplished in a variety of ways — 
 principally, however, by accustoming the young man to 
 do that as a student ivhich will afterwards he required of 
 him as a la'wyer. 
 
 The practical lawyer owes his success, in a great meas- 
 ure, to his quickness and accuracy in apjjlyiuy legal prin- 
 ciples to the facts of his case. This the student is here 
 taught to learn in the outset, by examining the reported 
 cases referred to in the lectures to sustain the principles 
 laid down. 
 
 The Moot Courts are another feature of importance to 
 be noticed. Questions or causes, previously given out, are 
 
Albany Law School. IV 
 
 here argued by four of the students. These questions and 
 causes are either taken from, and designed to illustrate, 
 some vexed points arising in the lectures, or they are real 
 causes pending before the Supreme Court or Court of 
 Appeals. 
 
 Upon the conclusion of the argument, the cause is given 
 to the class to decide. After the decision by the class, 
 the presiding professor gives his views on the questions in- 
 volved, and on the correctness or incorrectness of the 
 decision. Two of these courts are held each week. By 
 judiciously pursuing this course, varied in such respects 
 as experience may suggest, it is conildently expected that 
 the student may be essentially aided in his efforts to be- 
 come a ready, fluent and correct extemporaneous speaker, 
 and that he may also acquire good habits of speaking — 
 learning never to sacrifice sense to sound, or solid argument 
 to showy declamation. 
 
 Another exercise, which is attended with very beneficial 
 results is the previous appointment of one of the students 
 to prepare and read before the class his written opinion 
 upon the points involved in each question or cause, and 
 the grounds upon which he rests his decision. This re- 
 quires the deliberate exercise of judgment, the balancing of 
 opposing arguments, and is well adapted to fit the mind for 
 the investigation of truth, or deciding upon controverted 
 legal points, and for acting, if ever required, in a judicial 
 
 capacity. 
 
 In addition to these class exercises, in which all the stu- 
 dents will be required to participate, it will be optional 
 with them to organize and conduct as many special Moot 
 2 
 
18 Albany Law School. 
 
 Courts as they choose, and as many debating clubs, in 
 which they may practice forensic eloquence, as they may 
 think proper, and all reasonable facilities will be afforded 
 them for these purposes. 
 
 Of these facilities the students largely avail themselves. 
 Besides the Associated Congress for debating general 
 questions, the students form clubs, consisting usually of 
 from fifteen to twenty members, which are devoted exclu- 
 sively to the discussion of legal questions. Every even- 
 ing in the week, except Saturday and Sunday, may be 
 occujiied by the meeting of one of these clubs. Here are 
 presented good opportunities for the discussion of legal 
 principles, and of learning their proper application. The 
 student will feel under no restraint, as he is arguing only 
 in the presence of his associates whom he has himself assis- 
 ted in selecting. The foundations are laid here for subse- 
 quent discussions in the class. The library, easily accessi- 
 ble both to the club and class, adds immensely to these 
 facilities, since it affords the means of bringing the cases 
 relied upon by each side under immediate critical examin- 
 ation and discussion. 
 
 Beading, Text Books, and Facilities for Instruction. 
 
 The reading which is more especially recommended con- 
 sists in a close and critical examination of the cases referred 
 to in the lectures, and which are cited to sustain and apply 
 to their api>ropriate facts the legal principles there laid 
 down. This species of reading, so different from that 
 ordinarily pursued by the student in a law oifice, serves to 
 fix the principles permanently in his mind, and to familiar- 
 ize him with their application. 
 
Albany Law School. 19 
 
 For this pvirpose the following facilities are aiforded : 
 1st, The Law Library of the School which is a well chosen, 
 good working library, containing the leading reports and 
 text books. 2d, The Law Library of the State, the best 
 selected, and most extensive in the Union to which stu- 
 dents are permitted access for reference, subject to such 
 rules and regulations as will ensui'e its proper use, and 
 secure to the judges and members of the legal profession 
 that full and free access to which at all times they are 
 entitled. 
 
 In addition it is earnestly urged upon each student to 
 procure for his own special use a few elementary books — 
 such as Kent's Commentaries, and as many of the Text 
 Books recommended as he is able. These he can consult 
 at his room in connection with the Lectures, and also make 
 use of them in his investigations of questions arising for dis- 
 cussion in the clubs and Moot Courts. The following are 
 among the Text Books recommended by the Faculty, viz : 
 Blackstone and Kent's Commentaries ; Parsons, Story or 
 Chitty on Contracts; Story, Parsons or Collyer on Part- 
 nership ; Schouler's Personal Property ; Angell and Ames 
 or Potter on Corporations; Story, Benjamin or Hilliard 
 on Sales; Edwards, Story or Daniels on Bills of Exchange 
 and Promissory Notes ; Edwards or Story on Bailments ; 
 Willard or Washburn on Real Estate; Redfield, or Wigram 
 and O'Hara on Wills; Dunlap's Paley or Story on Agency; 
 Reeves' Domestic Relations ; Bishop's Marriage and Di- 
 voce; Bishop's Married Women; Wharton or Bishop on 
 Criminal Lawj Archbold's Criminal Practice and Plead- 
 ing; Bouvier's Law Dictionary. 
 
 Under the arrangements usually made by students among 
 
20 Albany Law Scitooj,. 
 
 themselves, several frequently combine theii- resources in 
 the shape of text books, and so enjoy the use of an in- 
 creased number, at a decreased cost to each. 
 
 The opportunities for witnessing all the varieties of legal 
 practice and styles of argument are much greater in the 
 city of Albany than in an}' other place of the same size. 
 
 The following coiirts are held here during each year, 
 viz : 
 
 Five terms of the County Court and Court of Sessions. 
 
 Four Circuit Courts and Courts of Oyer and Terminer. 
 
 Two sessions of the General Term of the Supreme Court, 
 being the Appellate branch of said Court. 
 
 Twelve regvilar Special Terms of the Supreme Court for 
 motions and arguments of demurrers. 
 
 Besides these Courts all the sessio?is of the Court of Ap- 
 peals are held in Albany, and several sessions of the TJ. S. 
 Circuit and District Courts. 
 
 There is scarcely a week in the year, with the exception 
 of the months of July and August, that some court is not 
 in session in this city. In these the law student will have 
 an opportunity of listening to the highest and purest styles 
 of judicial reasoning, and of forming his owii upon the 
 most faultless models. 
 
 The local advantages of the City of Albany, as the seat 
 of a professional school, cannot be overrated. It is the 
 capital of one of the leading states in the Union, whose 
 Legislature is in session here for the third part of every 
 year; it is easily accessible, remarkably healthful, and the 
 
Albany Law School.. 21 
 
 scene of great business and professional activity. It is 
 large enough to aflEord its inhabitants all the means of cul- 
 ture and recreation naturally to be looked for in a city, 
 while it is not so large as to make the cost of living bur- 
 densome, even to persons of extremely limited means. 
 
 In addition to these general advantages common to all 
 the residents of the city, the Albany Law School now offers 
 accommodations and facilities for instruction which place 
 It on an equal footing with any Law School in the Union. 
 It has purchased and now occupies a building .in every 
 way adapted to its needs, situated on the north side of 
 State street between Swan and Dove streets, within a few 
 minutes walk of the business part of the city, and from 
 which all points of interest are readily accessible. 
 
 The building has a frontage of about fifty, and a depth 
 of about eighty feet. On, the first floor is situated a spa- 
 cious library and study room well lighted and warmed, 
 conveniently fitted with desks, book cases and tables, and 
 ojDen to the students at all times. On the floor above is a 
 well lighted, and finely decorated lecture room, with all 
 the appliances necessary for the comfort and convenience 
 of students while in attendance upon the lectures. 
 
 Terms. 
 
 There are three terms held annually as follows : 
 The FiEST commencing on the First Tuesday of Sep- 
 TEMBBE, will continue for twelve weeks, closing on Fri- 
 day of the twelfth week. 
 
 The Second will commence on the Last Tuesday' of 
 NovEMBEE, and will continue fouetben weeks, with the 
 
22 Albany Law School. 
 
 exception of a vacation of two weeks, including the holi- 
 days 
 
 The Third will commence on the Fiest Tuesday of 
 March, and continue for twelve weeks, closing on Friday 
 of the twelfth week. 
 
 The fee required in all cases where the student pays by 
 the single term will be $50, payable in advance. But he 
 may, when he enters, pay $130, which will be received in 
 full for the whole course. Should the student from any 
 necessity be prevented from attending the entire course, 
 the money will be in part refunded according to the cir- 
 cumstances attending each particular case. 
 
 Attendance in the early part, even in the commence- 
 ment of their legal studies, is recommended to those whose 
 minds are sufficiently matured, as the habits they will ac- 
 quire, and the hints, suggestions, and guides furnished 
 them will essentially aid them in their subsequent course 
 of study. 
 
 Requirements for Graduation. 
 
 On complying with the following provisions, the student 
 may become a candidate for the degree of Bachelor of 
 Laws. 
 
 He must be twenty-one years of age ; must sustain a 
 good moral character ; and must have attended three full 
 terms of the Law School. He must, in addition, have sus- 
 tained satisfactory examinations through the different 
 terms ; must have faithfully performed all the exercises 
 assigned to him, and have prepared and read before the 
 class and the Faculty, six weeks before the close of the 
 term at which he proposes to graduate, a dissertation on 
 
Albany Law School. , 23 
 
 some legal subject or some subject connected with the his- 
 tory, science or practice of the law, written by himself; the 
 same to be written on alternate pages of ordinary sized 
 letter paper, having a wide inner margin, and being in 
 length from seven to ten pages, and not to occupy more 
 than ten minutes in the reading thereof. Students must 
 also have studied law one year, allowing a reasonable 
 vacation, exclusive of the time devoted to our course of 
 study. Upon complying with these provisions, and upon 
 payment of a graduation fee of $10, and all back dues, he 
 may, if properly qualified, receive a diploma conferring 
 the degree of Bachelor of Laws. 
 
 The examination of candidates for graduation is partly 
 oral and partly written, and is conducted with the same 
 strictness as that used in the examination of candidates 
 for admission to the bar, and upon the same subjects; con- 
 forming to the Rules of Court. It is the purpose of the 
 faculty to make the diploma of the School, in the future 
 as in the past, true evidence of the qualifications of its 
 graduates. 
 
 Price of Board. 
 
 The price of board varies, according to the accommoda- 
 tions offered, from |4 to $7, including room, lodging, fuel 
 and lights. Two or more clubbing together, hiring a room 
 and boarding themselves, may bring their expenses within 
 $3,50 or $4 a week. 
 
 For information address 
 
 HORACE E. SMITH, 
 Dean of Albany Law School, 
 
 Albany, N. Y. 
 
24 Albany Law School. 
 
 SCHOOL OF CIVIL ENOOEERINO, 
 
 OF 
 UmO'S COLLEGE, SCHENECTADY, N. T. 
 
 The object of this department, which was organized in Union 
 College, in 1845, ia to give its Students such instruction in the 
 Theory and Practice of Civil Engineering as to qualify them for 
 immediate usefulness in the field and office in subordinate relations, 
 and at the same time to fit them to fill satisfactorily the higher posi- 
 tions in the profession after a moderate amount of experience in the 
 routine of practice. 
 
 The thoroughness and completness of the course of instruction, the 
 unsurpassed excellence of its illustrative apparatus, the opportunities 
 and arrangements for field practice, the moderate charges ( |35 per 
 term ), and the fact that Students have access without further cliarge 
 to the teachings of the other Department, commend the course to 
 those contemplating the Engineering profession. 
 
 For circulars, or for specific information, address 
 
 PROF. CADY STALEY 
 Or Pkesident E. N. POTTER, D.D. 
 
 DUDLEY OBSERVATORY, ALBANY. 
 
 The President of the Union University will receive and 
 acknowledge communications. 
 
 METEROLOGICAL DEPARTMENT. 
 
 Tlie United States Signal service has taken charge of the Physical 
 Observatory for the establishment of a distributing Centre at Albany. 
 The force is under the immediate command of the Chief of the 
 Service, 
 
 GEN. A. J. MYER. 
 
 The Astronomical Department is under the direction of 
 
 PROFESSOR LEWIS BOSS. 
 
 Resident Astronomer. 
 
Albany Law School 26 
 
 TJisrioisr ■cr2sriA7':Bi^siT"2". 
 
 MEDICAL COLLEGE. 
 
 FACULTY. 
 
 ELIPHALET NOTT POTTER, D.D., LL.D., 
 
 President of the Unimrsity, 
 
 AMASA J. PARKBE, LL.D., 
 
 President of the Board of Trustees. 
 
 THOMAS HUN, M.D., 
 
 Dean of Urn Faculty, and JSmerlttis Professor of the Institutes of Medicine. 
 
 S. O. VANDERPOEL, M.D., LL.D., 
 
 Professor of Theory and Practice, and CUnicai Medicine. 
 
 ALBERT VANDERVEER, M.D., 
 
 Professor of the Principles and Practice of Surgery and Clinical Surgery. 
 
 JACOB S. MOaHER, M.D , 
 
 Berjistrar, and Professor of Medical Jurisprudence and Hygiene. 
 
 MAURICE PERKINS, M.D., 
 
 Professor of Chemical PhUosophy and Organic Chemistry. 
 
 JOHN M. BIGELOW, M.D., 
 
 Professor of Materia Medica and Therapeutics, 
 
 LEWIS BALCH, M.D., 
 
 Professor of Anatomy. 
 
 SAMUEL B. WARD, M.D., 
 
 Professor of Surgical Pathology, Operative Surgery and Clinical Surgery. 
 
 ■' JOHN P. GRAY, M.D., LL.D., 
 
 Professor of Psychological Medicine. 
 
 EDWARD R. HUN, M.D., 
 
 Professor of Diseases of tJie Nervous System. 
 
 JAMBS P. BOYD, JR., M.D., 
 
 Professor of Obstetrics and Diseases of Women and Children. 
 
 •^ WILLIS G. TUCKER, M.D 
 
 Professor of Inorganic and AncUytical Chemistry. 
 
 'WILLIAM HAILES, M.D., 
 
 Anthony Professor of Histology and Pat!wlogical Anatomy. 
 
 CYRUS S. MERRILL, M.D., 
 
 Professor of Ophthalmology. 
 
 HARRISON E. WEBSTER, A.M., 
 
 Lecturer on Physiology. 
 
 S. O. VANDERPOEL, Je., M.D., 
 
 Adiunct Professor of Pathology, Practice and Clinical Medicine. 
 
 ■' HENRY MARCH, M.D.. 
 
 Curator of the Museum. 
 
 EUGENE VAN SLYKE, M.D., 
 
 Demonstrator of Anatomy. 
 
 R. D. CLARK, M.D., 
 
 Prosector of Anatomy. 
 
 The regular courae of lectures at the college begins on the first Wednesday of Oc- 
 tober, andcontinues twenty weeks. For information inquire of Dr. Jacob S. 
 MosHER, Registrar, Albany, N. T. 
 
26 Albany Law School. 
 
 UNION COLLEGE. 
 
 FACULTY. 
 
 ELIPHALET NOTT POTTER, D.D., LL.D., 
 
 President; and Prof essor of Moral Phihso}}liy , Christian EcicUncen imd 
 the Constitution of the United States. 
 
 JOHN POSTER, LL.D., 
 
 IfoU Professor (No. 8) of Natural Philosophy. 
 
 JONATHAN PEARSON, A.M., 
 
 Professor of Af/riimli^ire and Botany. 
 
 HENRY WHITEHORNE, A.M., 
 
 Nott Pvfessor {No. 1) of the Creel: Lniigvar/e and Literature. 
 
 WILLIAM WELLS, LL.D., 
 
 Pvfessor of Modern Languages and Literature. 
 
 MAURICE PBRKllSfS, A.M., M.D., 
 Noit P-ofessor(No. %) of Analytical C Ministry and Cnrator of the Museum 
 
 REV. GEORGE ALEXANDER, A.M., 
 
 Professor of Logic and Rhetoric. 
 
 CADY 8TALEY, AM., C.E., Dean, 
 P'ofessor of Ciml Engineering. 
 
 HARRISON E. WEBSTER, A.M., 
 Professor of Natural History. 
 
 REV. TIMOTHY 6RENVILLB DARLING, A.M., 
 
 Acting Professor of Mental Philosophy and Hebrew. 
 
 REV. EDWARD A.WASHBURN, D.D., 
 
 Lectures on Old English and on Art. 
 
Albany Law School. 27 
 
 ISAIAH B. PRICE, C.E., 
 Professm- of Matliemcttics and Adjunct Professor of Physici. 
 
 WENDELL LAMOROUX, A.M., 
 English Essays and Oiritory ; and Assistant Lihrarian. 
 
 JOSEPH R. DAVIS, A.B., 
 
 Tutoi' in Latin (i.nd Greek. 
 
 MAJOR J. W. MacMURRAY, A.M., U. S. A., 
 Professor of Military Hrie)ice and Tactii's. 
 
 CHARLES W. VANDERVEER, 
 
 Instruttw in Physdcal Culture 
 
 SAMUEL B. HOWE, A.M., 
 Adjunct Nott Professor {No. 4), Principal of Union School and Super- 
 intendent of ths Scliools of Sclienectady. 
 
 JONATHAN PEARSON, A.M., 
 
 Treastvrer and LiJyrarian. 
 
 EDGAR M. JENKINS, Esq., 
 Assistant Ih'easurer and Begistrar. 
 
 HENRY COPPJfiE, LL.D., 
 
 P'ofessor of History, English Literature and Philology. 
 
 REV. GEO. W. DEAN, S. T. D., 
 . Latin Language and Literature. 
 
 PROP, ROSWELL D. HITCHCOCK, D.D., 
 
 Christian Socialism. 
 
 E. D. PALMER, A.M., 
 
 Scul/ptv/re. 
 
 WILLIAM A. POTTER, A.M., 
 
 Professor, of Architecture. 
 
 HON. DAVID MURRAY, LL.D., 
 
 Oriental CMlization. 
 
28 Albany Law School, 
 
 REV. WM. E. GRIPFES, 
 Oriental Art. 
 
 REV, JOHN H. ROGERS, 
 
 European Art. 
 
 JOHN R. G. HASSARD. Esq., 
 Lectures on Modern Music, 
 
 REV. EGBERT C. LAWRENCE, 
 
 Instruction in Mathematics. 
 
 J. E. Vigsr OLINDA, 
 Instruction in Mudc. 
 

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