From: Essays on the Principles of Morality, and on the Private and Political Rights and Obligations of Mankind (1834).
Author: Jonathan Dymond
Published: Harper & Brothers 1834 Philadelphia
THE MORALITY OF LEGAL PRACTICE.
IF it should be asked why, in a book of general morality, the writer selects for observation the practice of a particular profession, the answer is simply this, that the practice of this particular profession peculiarly needs it. It peculiarly needs to be brought into juxtaposition with sound principles of morality. Besides this, an honest comparison of the practice with the principles will afford useful illustration of the requisitions of virtue.
That public opinion pronounces that there is, in the ordinary character of legal practice, much that is not reconcileable with rectitude, can need no proof. The public opinion could scarcely become general unless it were founded upon truth, and that it is general is evinced by the language of all ranks of men; from that of him who writes a treaties of morality to that of him who familiarly uses a censorious proverb. It may reasonably be concluded that when the professional conduct of a particular set of men is characterized peculiarly with sacrifices of rectitude, there must be some general and peculiar cause. There appears nothing in the profession, as such, to produce this effect,—nothing in taking a part in the administration of justice which necessarily leads men away from the regard to justice. How then are we to account for the fact as it exists, or where shall we primarily lay the censure? Is it the fault of the men or of the institutions; of the lawyers or of the law? Doubtless the original fault is in the law.
This fault, as it respects our own country, and I suppose every other, is of two kinds; one is necessary, and one accidental. First: Wherever fixed rules of deciding controversies between man and man, or fixed rules of administering punishment to public offenders, are established,—there it is inevitable that equity will sometimes be sacrificed to rules. These rules are laws, that is, they must be uniformly, and for the most part literally, applied; and this literal application (as we have already had manifold occasion to show) is sometimes productive of practical injustice. Since then the legal profession employ themselves in enforcing this literal application,—since they habitually exert themselves to do this with little regard to the equity of the result, they cannot fail to deserve and to obtain the character of a profession that sacrifices rectitude, I know not that this is evitable so long as numerous and fixed rules are adopted in the administration of justice.
The second cause of the evil, as it results from the law itself, is in its extreme complication,—in the needless multiplicity of its forms, in the inextricable intricacy of its whole structure. This, which is probably by far the most efficient cause of the want of morality in legal practice, I call gratuitous. It is not necessary to law that it should be so extremely complicated. This the public are beginning more and more to see and 1o assert. Simplification has indeed been.in some small degree effected by recent acts of the legislature; and this is a sufficient evidence that it was needed. But whether needed or not, the temptation which it casts in the way of professional virtue is excessively great. A man takes a cause—a morally bad cause we will suppose—to a barrister. The barrister searches his memory or his books for some one or more among the multiplicity of legal technicalities by which success may be obtained for his client. He finds them, urges them in court, shows that the opposing client cannot legally substantiate his claim, and thus inflicts upon him practical injustice. This is primarily the fault of the law. Take away or diminish this encumbering load of technicalities, and you take away, in the same proportion, the opportunity for the profession to sacrifice equity to forms, and by consequence diminish the immorality of its practice.—There can be no efficient reform among lawyers without a reform of the law.
But while thus the original cause of the sacrifice of virtue among legal men is to be sought in legal institutions, it cannot be doubted that they are themselves chargeable with greatly adding to the evils which these institutions occasion. This is just what, in the present state of human virtue, we might expect. Lawyers familiarize to their minds the notion, that whatever is legally right is right; and when they have once habituated themselves to sacrifice the manifest dictates of equity to law, where shall they stop? If a material informality in an instrument is to them a sufficient justification of a sacrifice of these dictates, they will soon sacrifice them because a word has been misspelt by an attorney’s clerk. When they have gone thus far, they will go further. The practice of disregarding rectitude in courts of justice will become habitual. They will go onward, from insisting upon legal technicalities to an endeavour to pervert the law, then to the giving a false colouring to facts, and then onward and still onward until witnesses are abashed and confounded, until juries are misled by impassioned appeals to their feelings, until deliberate untruths are solemnly averred, until, in a word, all the pitiable and degrading spectacles are exhibited which are now exhibited in legal practice.
But when we say that the original cause of this unhappy system is to be found in the law itself, is it tantamount to a justification of the system? No. If it were, it would be sufficient to justify any departure from rectitude; it would be sufficient to justify any crime, to be able to show that the perpetrator possessed strong temptation. Strong temptation is undoubtedly placed before the legal practitioner. This should abate our censure, but it should not cause us to be silent. .
We affirm that a lawyer cannot morally enforce the application of legal rules without regard to the claims of equity in the particular case.
If it has been seen in the preceding chapters that morality is paramount to law; if it has been seen that there are many instances in which private persons are morally obliged to forego their legal pretensions, then it is equally clear that a lawyer is obliged to hold morality as paramount to law in his own practice. If one man may not urge an unjust legal pretension, another may not assist him in urging it. No man, it may be hoped, will say that it is the lawyer’s only business to apply the law. Men cannot so cheaply exempt themselves from the obligations of morality. Yet here the question is really suspended; for if the business of the profession does not justify a disregard of morality, it is not capable of justification. Suspended! It is lamentable that such a question can exist. For to what does the alternative lead us? Is a man when he undertakes a client’s business at liberty to advance his interests by every method, good or bad, which the law will not punish? If he is, there is an end of morality. If he is not, something must limit and restrict him; and that something is the moral law.
Of every custom, however indefensible, some advocates offer themselves; and some accordingly have attempted to justify the practice of the bar.1 Of that particular item in the practice which consists in uttering untruths in order to serve a client, Dr. Paley has been the defender. “There are falsehoods,” says he, “which are not criminal; as where no one is deceived, which is the case with an advocate in asserting the justice, or his belief of the justice, of his client’s cause.” It is plain that in support of this position one argument, and only one, can be urged, and that one has been selected: “No confidence is destroyed, because none was reposed; no promise to speak the truth is violated, because none was given or understood to be given.”2 The defence is not very creditable, even if it were valid; it defends men from the imputation of falsehood, because their falsehoods are so habitual that no one gives them credit!
But the defence is not valid. Of this the reader may satisfy himself by considering why, if no one ever believes what advocates say, they continue to speak. They would not, year after year, persist in uttering untruths in our courts, without attaining an object, and knowing that they would not attain it. If no one ever in fact believed them, they would cease to asseverate. They do not love falsehood for its own sake, and utter it gratuitously and for nothing. The custom itself, therefore, disproves the argument that is brought to defend it. Whenever that defence becomes valid,—whenever it is really true that “no confidence is reposed” in advocates, they will cease to use falsehood, for it will have lost its motive. But the real practice is to mingle falsehood and truth together, and so to involve the one with the other that the jury cannot easily separate them. The jury know that some of the pleader’s statements are true, and these they believe. Now he makes other statements with the same deliberate emphasis; and how shall the jury know whether these are false or true? ‘“How shall they discover the point at which they shall begin to “repose no confidence?” Knowing that a part is true, they cannot always know that another part is not true. That it is the pleader’s design to persuade them of the truth of all he affirms is manifest. Suppose an advocate when he rose should say, “Gentlemen, I am now going to speak the truth;” and after narrating the facts of the case, should say, “Gentlemen, I am now going to address you with fictions.” Why would not an advocate do this? Because then no confidence would be reposed, which is the same thing as to say that he pursues his present plan because some—confidence is reposed; and this decides the question. The decision should not be concealed,—that the advocate who employs untruths in his pleadings does really and most strictly lie.
And even if no one ever did believe an advocate, his false declarations would still be lies, because he always professes to speak the truth. This —indeed is true upon the archdeacon’s own showing; for he says, “Whoever seriously addresses his discourse to another tacitly promises to speak the truth.” The case is very different from others which he proposes as parallel,—“parables, fables, jests.” In these the speaker does not profess to state facts. But the pleader does profess to state facts. He intends and endeavours to mislead. His untruths therefore are lies to him, whether they are believed or not; just as, in vulgar life, a man whose falsehoods are so notorious that no one gives him credit, is not the less a liar than if he were believed.
From one sort of legal falsehoods results one peculiar mischief, a mischief arising primarily out of an unhappy rule of law; but which is not on that account morally justifiable. “Decision is commanded by pleadings as by evidence, and that also to a vast extent, and with a degree of certainty refused to evidence. Decision is produced by pleadings as if they were true, when they are known and acknowledged to be false: because they act as evidence, and as true evidence, in all cases where the opposed party cannot follow them by counter declarations,—a consequence which may and does result from poverty and other causes.3 This is deplorable indeed. To employ false pleadings is sufficiently unjustifiable; but to employ them in order that a poor man, or that any man, may be debarred of his rights, is abominable. But why do we say that this peculiarly is abominable? For to what purpose is any falsehood urged at the bar but to impede or prevent the administration of justice between man and man? I make no pretensions to legal knowledge. Some fuse pleadings are legally “necessary,” in order to give formality to a proceeding. In these cases the evil is attributable in a great degree to the law itself,—though I presume the law is founded upon custom, which custom was introduced by lawyers. The evil, therefore, and the guilt lie at the door of the system of legal practice, although they may not all lie at the doors of existing practitioners.4
Gisborne is another defender of legal practice, and assumes a wider ground of justification. “The standard,” says he, “to which the advocate refers the cause of his client is not the law of reason nor the law of God, but the law of the land. His peculiar and proper object is not to prove the side of the question which he maintains morally right, but legally right. The law offers its protection only on certain preliminary conditions; it refuses to take cognizance of injuries, or to enforce redress, unless the one be proved in ‘the specific manner and the other claimed in the precise form which it prescribes; and consequently, whatever be the pleader’s opinion of his cause, he is guilty of no breach of truth and justice in defeating the pretensions of the persons whom he opposes, by evincing that they have not made good the terms on which alone they could be legally entitled, on which alone they could suppose themselves entitled, to success.”5 There is something specious in this reasoning, but what is its amount!—that if the laws of a country proceed upon such and such maxims, they exempt us from the authority of the laws of God. We arrive at this often—refuted doctrine at last. Either the acts of a legislature may suspend the obligations of morality or they may not. If they may, there is an end of that morality which is founded upon the Divine will: if they may not, the argument of Gisborne is a fallacy. But in truth he himself shows its fallaciousness: he says, “If a cause should present itself of an aspect so dark as to leave the advocate no reasonable doubt of its being founded in iniquity or baseness, or to justify extremely strong suspicions of its evil nature and tendency, he is bound in the sight of God to refuse all connexion with the business.” Why is he thus bound to refuse? Because he will otherwise violate the moral law: and this is the very reason why he is bound in other cases. Observe too the inconsistency: first we are told that whatever be the pleader’s opinion of a cause, “ he is guilty of no breach of truth and justice” in advocating it; and afterward, that if the cause is of an “ evil nature and tendency” he may not advocate it! That such reasoning does not prove what it is designed to prove is evident; but it proves something else,—that the practice cannot be defended. Such reasoning would not be advanced if better could be found. Let us not however seem to avail ourselves of a writer’s words without reference to his meaning. The meaning in the present instance is clearly this,—that a pleader, generally, may undertake a vicious cause; but that if it be very vicious, he must refrain. You may abet an act of a certain shade of iniquity, but not if it be of a certain shade deeper: you may violate the moral law to a certain extent, but not to every extent. To him who would recommend rectitude in its purity, few reasonings are more satisfactory than such as these. They prove the truth which they assail, by evincing that it cannot be disproved.
Dr. Johnson tried a shorter course: “You do not know a cause to be good or bad till the judge determines it. An argument that does not convince you may convince the judge to whom you urge it; and if it does convince him, why then he is right and you are wrong.” This is satisfactory. It is always satisfactory to perceive that a powerful intellect can find nothing but idle sophistry to urge against the obligations of virtue. One other argument is this: Eminent barristers, it is said, should not be too scrupulous, because clients might fear their causes would be rejected by virtuous pleaders, and might therefore go to “needy and unprincipled chicaners.” Why, if their causes were good, virtuous pleaders would undertake them; and if they were bad, it matters not how soon they were discountenanced. In a right state of things, the very circumstance that only an “unprincipled chicaner” would undertake a particular cause would go far towards procuring a verdict against it. Besides, it is a very loose morality that recommends good men to do improper things lest they should be done by the bad.
Seeing therefore that no tolerable defence can be adduced of the ordinary legal practice, let us consider for a moment what are its practical results.
A civil action is brought into court, and evidence has been heard which satisfies every man that the plaintiff is entitled in justice to a verdict. It is, on the part of the defendant, a clear case of dishonesty. Suddenly, the pleader discovers that there is some verbal flaw in a document, some technical irregularity in the proceedings,—and the plaintiff loses his cause. The public are disappointed in their expectations of justice; the jury and the court are grieved; and the unhappy sufferer retires, injured and wronged—without redress or hope of redress. Can this be right? Can it be sufficient to justify a man in this conduct, to urge that such things are his business,—the means by which he obtains his living! The same excuse would justify a corsair, or a troop of Arabian banditti which plunders the caravan. Yet indefensible, immoral as this conduct is, it is the every—day practice of the profession; and the amount of injustice which is inflicted by this practice is enormous. The plea that such are the rules of the law is not admissible. Whatever utility we may be disposed to allow to the uniform application of the law, it will not justify such conduct as this. The integrity of the law would not have been violated, though the pleader had not pointed out the misspelling, for example, of a word. For a judge to refuse to allow the law to take its course after the mistake has been urged is one thing: for a pleader to detect and to urge 1t is another. The judge may not be able to regard the equity of the case without sacrificing the uniform operation of the law. But if the inadvertency is not pointed out, that uniform operation is perfect though equity be awarded. There is no excuse for thus inflicting injustice. It is an act of pure gratuitous mischief; an act not required by law, an act condemned by morality, an act possessing no apology but that the agent is tempted by the gains of his profession.
An unhappy father seeks, in a court of justice, some redress for the misery which a seducer has inflicted upon his family; a redress which, if he were successful, is deplorably inadequate, both as a recompense to the sufferers and as a punishment to the criminal. The case is established, and it is manifest that equity and the public good require exemplary damages. What then does the pleader do? He stands up and employs every contrivance to prevent the jury from awarding the damages. He eloquently endeavours to persuade them that the act involved little guilt; casts undeserved imputations upon the immediate sufferer and upon her family; jests, and banters, and sneers, about all the evidence of the cue; imputes bad motives (without truth or with it) to the prosecutor; expatiates upon the little property (whether it be little or much) which the seducer possesses: by these and by such means he labours to prevent this injured father from obtaining any redress, to secure the criminal from all punishment, and to encourage in other men the crime itself. Compassion, justice, morality, the public good, every thing is sacrificed—to what? To that which, upon such a subject, it were a shame to mention.
In the criminal courts, the same conduct is practised, and with the same indefensibility. Can it be necessary, or ought it to be necessary, to insist upon the proposition,—“If it be right that offenders should be punished, it is not right to make them pass with impunity.” If a police officer has seized a thief and carried him to prison, every one knows that it would be vicious in me to effect his escape. Yet this is the every—day practice of the profession. It is their regular and constant endeavour to prevent justice from being administered to offenders. ls it a sufficient justification of preventing the execution of justice, of preventing that which every good citizen is desirous of promoting,—to say that a man is an advocate by profession? Is the circumstance of belonging to the legal profession a good reason for disregarding those duties which are obligatory upon every other man? He who wards off punishment from swindlers and robbers, and sends them among the public upon the work of fraud and plunder again, surely deserves worse of his country than many a hungry man who filches a loaf or a trinket from a stall.—As to employing legal artifices or the tactics of declamation in order to obtain the conviction of a prisoner whom there is reason to believe to be innocent; or as to endeavouring to inflict upon him a punishment greater than his deserts, the wickedness is so palpable that it is wonderful that even the power of custom protects it from the reprobation of the world.
In Scotland, where the criminal process is in some respects superior to ours, the proportion of those prisoners who escape punishment on account of “technical niceties” is very great. “Of the persons acquitted in our courts, at least one-half escape from technical niceties, or rules of evidence which give advantage to the prisoner, with which, in the other part of the island, they are wholly unacquainted.”6 Is not this a great public evil? And if we charge that evil originally upon the law, is it warrantable, is it moral, in the advocate actively to increase and extend it?
The plea that it is of consequence that law should be uniformly administered does not suffice to justify the pleader in criminal any more than in civil courts. “A thief was caught coming out of a house in Highbury-terrace, ‘With a watch he had stolen therein upon him. He was found guilty by the jury upon the clearest evidence of the theft; but his counsel having discovered that he was charged in the indictment with having stolen a watch the property of the owner of the house, whereas the watch really belonged to his daughter, the prisoner got clear off.”7 The pretext of the value of a uniform operation of the law will not avail here. Suppose the counsel, though he did discover the watch was the daughter’s, had not insisted upon the inaccuracy, no evil would have ensued. The integrity of the law would not have been violated. The act of a counsel therefore in such a case is simply and only a defeat of public justice, an injury to the state, an encouragement to thieves; and surely there is no reason, either in morals or in common sense, why any particular class of men should be privileged thus to injure the community.
The wife of a respectable tradesman in the town in which I live was left a widow with eight or ten children. She employed a confidential person to assist in conducting the business. The business was flourishing; and yet at the end of every year she was surprised and afflicted to find that her profits were unaccountably small. At length this confidential person was suspected of peculation. Money was marked and placed as usual under his care. It was soon missed, and found upon his person; and when the police searched his house, they found in his possession, methodically stowed away, five or six thousand pounds, the accumulated plunder of years! This cruel and atrocious robber found no difficulty in obtaining advocates, who employed every artifice of defence, who had recourse to every technicality of law, to screen him from punishment, and to secure for him the quiet possession of his plunder. They found in the indictment some word, of which the ordinary and the legal acceptation were different; and the indictment was quashed! Happily, another was proof against the casuistry, and the criminal was found guilty.
Will it be said that pleaders are not supposed to know, till the verdict is pronounced, whether a prisoner is guilty or not? If this were true it would not avail as a justification; but in reality it is only a subterfuge. In this very case, after the verdict had been pronounced, after the prisoner’s guilt bad been ascertained, a new trial was obtained; not on account of any doubt in the evidence,—that was unequivocal,—but on account of some irregularity in passing sentence. And now the same conduct was repeated. Knowing that the prisoner was guilty, advocates still exerted their talents and eloquence to procure impunity for him, nay to reward him at the expense of public duty and of private justice. They did not succeed: the plunderer was transported; but their want of success does not diminish the impropriety, the immorality, of their endeavours. If, by the trickery of law, this man had obtained an acquittal, what would have been the consequence? Not merely that he would have possessed undisturbed. his plundered thousands; not merely that he might have laughed at the family whose money he was spending; but that a hundred or a thousand other shopmen, taking confidence from his success and his impunity, might enter upon a similar course of treachery and fraud. They might think that if the hour of detection should arrive, nothing was wanting but a sagacious advocate to protect them from punishment and to secure their spoil. Will any man then say, as an excuse for the legal practice, that it is “usual,” “customary,” the “business of the profession” It is preposterous.8
It really is a dreadful consideration, that a body of men, respectable in the various relationships of life, should make, in consequence of the vicious maxims of a profession, these deplorable sacrifices of rectitude. To a writer upon such a subject, it is difficult to speak with that plainness which morality requires, without seeming to speak illiberally of men. But it is not a question of liberality, but of morals. When a barrister arrives at an assize town on the circuit, and tacitly publishes that (abating a few, and only a few, cases) he is willing to take the brief of any client; that he is ready to employ his abilities, his ingenuity, in proving that any given cause is good, or that it is bad; and when, having gone before a jury, he urges the side on which he happens to have been employed, with all the earnestness of seeming integrity and truth, and bands all the faculties which God has given him in promotion of its success;—when we see all this, and remember that it was the toss of a die whether he should have done exactly the contrary, I think that no expression characterizes the procedure but that of intellectual and moral prostitution. In any other place than a court of justice, every one would say that it was prostitution: a court of justice cannot make it less.
Perhaps the reader has heard of the pleader who, by some accident, mistook the aide on which he was to argue, and earnestly contended for the opponent’s cause. His distressed client at length conveyed an intimation of his mistake, and he, with forensic dexterity, told the jury that hitherto he had only been anticipating the argumenta of the opposing counsel, and that now he would proceed to show they were fallacious. If the reader should imagine there is peculiar indecency in this, his sentiment would be founded upon habit rather than upon reason. There is, really, very little difference between contending for both sides of the same cause, and contending for either aide as the earliest retainer may decide. I lately read the report of a trial in which retainers from both parties had been sent to a counsel, and when the cause was brought into court, it was still undecided for whom he should appear. The scale was turned by the judgment of another counsel, and the pleader instantly appeared on behalf of the client to whom his brother had allotted him.—From the mistake which is mentioned at the head of this paragraph, let clients take a beneficial hint. I suggest to them, if their opponent bas engaged the ablest counsel, to engage him also themselves. The arrangement might easily be managed, and would be attended with manifest advantages: clients would be sure of arraying against each other equal abilities; justice would be promoted by preventing the triumph of the more skilful pleader over the less; and the minds of juries might more quietly weigh the conflicting arguments, when they were all proved and all refuted by one man.
Probably it will be asked, what is a legal man to do? How shall he discriminate his duties, or know in the present state of legal institutions, what extent of advocation morality allows? These are fair questions, and he who asks them is entitled to an answer. I confess that an answer is difficult; and why is it difficult! Because the whole system is unsound. He who would rectify the ordinary legal practice is in the situation of a physician who can scarcely prescribe with effect for a particular symptom in a patient’s case, unless he will submit to an entirely new regimen and mode of life. The conscientious lawyer is surrounded with temptations and with difficulties resulting from the general system of the law; difficulties and temptations so great that it may almost appear to be the part of a wise man to fly rather than to encounter them. There is however nothing necessarily incidental to the legal profession which makes it incompatible with morality. He who has the firmness to maintain his allegiance to virtue may doubtless maintain it. Such a man would consider, that law being in general the practical standard of equity, the pleader may properly illustrate and enforce it. He may assiduously examine statutes and precedents, and honourably adduce them on behalf of his client. He may distinctly and luminously exhibit his client’s claims. In examining his witnesses he may educe the whole truth; in examining the other party’s, he may endeavour to detect collusion, and to elicit facts which they may attempt to conceal; in a word, he may lay before the court a just and lucid view of the whole question.—But he may not quote statutes and adjudged cases which he really does not think apply to the subject, or if they do appear to apply, he may not urge them as possessing greater force or applicability than he really thinks they possess. He may not endeavour to mislead the jury by appealing to their feelings, by employing ridicule, and especially by unfounded insinuations or misrepresentation of facts. He may not endeavour to make his own witnesses affirm more than he thinks they know, or induce them, by artful questions, to give a colouring to facts different from the colouring of truth. He may not endeavour to conceal or discredit the truth by attempting to confuse the other witnesses, or by entrapping them into contradictions; Such as these appear to be the rules which rectitude imposes in ordinary cases. There are some cases which a professional man ought not to undertake at all. This is indeed acknowledged by numbers of the profession. The obligation to reject them is of course founded upon their contrariety to virtue. How then shall a legal man know whether he ought to undertake a cause at all, but by some previous consideration of its merits? This must really be done if he would conform to the requisitions of morality. There is not an alternative: and “absurd” or “impracticable” as it may be pronounced to be, we do not shrink from explicitly maintaining the truth. Impracticable! it is at any, rate not impracticable to withdraw from the profession, or to decline to enter it. A man is not compelled to be a lawyer; and if there are so many difficulties in the practice of professional virtue, what is to be said? Are we to say; Virtue must be sacrificed to a profession,——or, The profession must be sacrificed to virtue? The pleader will perhaps say that he cannot tell what the merits of a case are until they are elicited in court: but this surely would not avail to justify a disregard of morality in any other case. To defend one’s self for an habitual disregard of the claims of rectitude, because we cannot tell, when we begin a course of action, whether it will involve a sacrifice of rectitude or not, is an ill defence indeed. At any rate, if he connects himself with a cause of questionable rectitude, he needs not and he ought not to advocate it while ignorant of its merits, as if he knew that it was good. He ought not to advocate it further than he thinks it is good. But if any apologist for legal practice should say that a pleader knows nothing or almost nothing of a brief till he is instructed in court by a junior counsel, or that he has too many briefs to be capable of any previous inquiry about them, the answer is at hand,—Refuse them. It would only add one example to the many,—that virtue cannot always be maintained without cost. It is necessary that a man should adhere to virtue: it is not necessary that he should be overwhelmed with briefs.
There is one consideration wider which a pleader may assist a client even with a bad cause, which is, that it is proper to prevent the client from suffering too far. I would acknowledge, generally, the justice of the opposite party’s claims, or, if it were a criminal case, I would acquiesce in the evidence which carried conviction to my mind; but still, in both, something may remain for the pleader to do. The plaintiff may demand a thousand pounds when only eight hundred are due, and a pleader, though ‘he could not with integrity resist the whole demand, could resist the excess of the demand above the just amount. Or if a prosecutor urges the guilt of a prisoner, and attempts to procure the infliction of an undue punishment, a pleader, though he knows the prisoner’s guilt, may rightly prevent a sentence too severe. Murray the grammarian had been a barrister in America: “I do not recollect,” says he, “that I ever encouraged a client to proceed at law when I thought his cause was unjust or indefensible; but in such cases, I believe it was my invariable practice to discourage litigation, and to recommend a peaceable settlement of differences. In the retrospect of this mode of practice, I have always had great satisfaction; and I am persuaded that a different procedure would have been the source of many painful recollections.”9
One serious consideration remains,—the effect of the immorality of legal practice upon the personal character of the profession. “The lawyer who is frequently engaged in resisting what he strongly suspects to be just, in maintaining what he deems to be in strictness untenable, in advancing inconclusive reasoning, and seeking after flaws in the sound replies of his antagonists, can be preserved by nothing short of serious and invariable solicitude, from the risk of having the distinction between moral right and wrong almost erased from his mind.”10 Is it indeed so? Tremendous is the risk. Is it indeed so? Then the custom which entails this fearful risk must infallibly be bad. Assuredly, no virtuous conduct tends to erase the distinctions between right and wrong from the mind.
It is by no means certain, that if a lawyer were to enter upon life with a steady determination to act upon the principles of strict integrity, his experience would occasion any exception to the general rule that the path of virtue is the path of interest. The client who was conscious of the goodness of his cause would prefer the advocate whose known maxims of conduct gave weight to every cause that he undertook. When such a man appeared before a jury, they would attend to his statements and his reasonings with that confidence which integrity only can inspire. They would not make, as they now do, perpetual deductions from his averred facts: they would not be upon the watch, as they now are, to protect themselves from illusion, and casuistry, and misrepresentation. Such a man, I say, would have a weight of advocacy which no other qualification can supply; and upright clients, knowing this, would find it their interest to employ him. The majority of clients it is to be hoped are upright. Professional success therefore would probably follow. And if a few such pleaders, nay if one such pleader was established, the consequence might be beneficial and extensive to a degree which it is not easy to compute. It might soon become necessary for other pleaders to act upon the same principles, because clients would not intrust their interests to any but those whose characters would give weight to their advocacy. Thus even the profligate part of the profession might be reformed by motives of interest, if not from choice. Want of credit might be want of practice; for it might eventually be almost equivalent to the loss of a cause to intrust it to a bad man. The effects would extend to the public. If none but upright men could be efficient advocates, and if upright men would not advocate vicious causes, vicious causes would not be prosecuted. But if such be the probable or even the possible results of sterling integrity, if it might be the means of reforming the practice of a large and influential profession, and of almost exterminating wicked, litigation from a people,—the obligation to practise this integrity is proportionately great: the amount of depending good involves a corresponding amount of responsibility upon him who contributes to perpetuate the evil.
1 I speak of the bar because that branch of the profession offers the most convenient illustration of the subject. The reasonings will generally apply to other branches.
2 Mor. and Pol. Phil. b. 3, p. l, c. 15.
3 West. Rev. No. 9.
4 “Some of these legal falsehoods are ridiculous to the last degree. A horse is sent to farrier to be shod. Unhappily, and to the great regret of the farrier, his man accidentally lames the horse. What then says the legal form? That the farrier faithfully promised to shoe the horse properly; but that “he, not regarding his said promise and undertaking but contriving and fraudulently intending, craftily, and subtilely to deceive and defraud the said plaintiff, did not nor would shoe the said horse in a skilful, careful, and proper manner,” &c.—See the form, 2 Chitty on Pleading, p. 154.
5 Duties of Men. The Legal Profession.
6 Remarks on the Administration of Criminal Justice in Scotland, &c.
7 West. Rev. No. 8, Art. 4.
8 Some obstacles in the way of this mode of defeating the ends of justice have been happily interposed by the admirable exertions of the late secretary of state for the home department. Still such cases are applicable as illustrations of what the duties of the profession are; and, unfortunately, opportunities in abundance remain for sacrificing the duties of the profession to its “business.” Here, without any advertence to political opinion, it may be remarked, that one such statesman as ROBERT PEEL is of more value to his country than a multitude of those who take office and leave it, without any endeavouring to ameliorate the national institutions.
9 Memoirs of Lindley Murray, p. 43.
All Sub-Works of Essays on the Principles of Morality, and on the Private and Political Rights and Obligations of Mankind (1834).:
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- Preface to the American Edition.
- Introductory Notices.
- Moral Obligations.
- Standard of Right and Wrong.
- Subordinate Standards of Right and Wrong.
- Standard of Right and Wrong Footnotes.
- Collateral Observations.
- Immediate Communication of the Will of God.
- Immediate Communication of the Will of God Footnotes.