"The law thy calling ought to have been,Dr. Arnold seems to have looked upon the profession of an advocate as of necessity immoral. In the History of Rome, he speaks of "the study of law, which is as wholesome to the human mind as the practice of it is often injurious;" and in one of his published letters to Sir J. Coleridge, he speaks of his "abhorrence of the profession of advocacy," and asks whether there is no way by which a man can hope to reach the position of a judge without exposing himself to the injurious influences of the bar. It is, perhaps, however, amongst the lighter class of writers that lawyers of all sorts, and more particularly barristers, are most hardly dealt with. There is a piquancy in the contrast which is alleged to exist between the solemnity of the function which they claim to discharge—the administration of justice—and the disregard which their conduct is said to display for everything but the interest of their clients, which is irrisistibly tempting to those who are bound to make a point of some sort or other, whatever may be the subject on which they write. There is, also, considerable satisfaction in taking vengeance upon men who, in the exercise of their profession, often pain and humiliate others. To represent lawyers in a newspaper article, or in a novel, in an odious or ludicrous light, is often as pleasant to the author as it is to a junior boy to get a chance of throwing a stone with impunity at one of the tyrants of the school. The world at large is always ready to enjoy the spectacle of desolators desolate and victors overthrown.
With thy wit so ready and tongue so free,
To prove by reason, in reason's despite,
That right is wrong, and wrong is right,
And white is black, and black is white—
What a loss I have had in thee."
On the other hand, those who are guided in forming their opinions by their judgment, rather than their sympathies, will be slow to condemn any established and recognized profession as immoral; for they will feel that to do so is to condemn the general constitution of society, as it forms a connected whole, the different members of which are closely connected with each other. Advocacy has been a recognized profession in all societies, except the most barbarous and despotic, and it would be absurd to deny that it has rendered splendid services to every nation in which it has existed. In our own time and country there is peculiar evidence of its value. Whatever may be said of the bar, no one ever speaks of the bench in terms of indignation or contempt. To describe the judges, either of the superior or of the inferior courts, as corrupt, inhuman, and indifferent to truth and justice, would be a pointless absurdity; yet they are no more than successful barristers who, if the common theory of the bar is true, must have passed their lives in the diligent cultivation of the very qualities, for the opposite of which they are remarkable. Can any one listen for a few days to the administration of justice in Westminster Hall, and honestly say that the impression left on his mind by the behaviour of the presiding judges, is that the most active years of their lives have been passed in a course of systematic and elaborate lying?
The contrast between the conclusion pointed to by these, and other obvious considerations of the same kind, and the popular view of the case just described, is remarkable enough to make it worth while to inquire what is the relation between advocacy and morality, and whether the profession of an advocate is really one which cannot be pursued successfully without disregarding the claims of honour and conscience.
The leading principle by which the whole subject is governed is, that the profession of advocacy is an essential part of the general system of the administration of law. The principle itself is familiar, perhaps even trite, but its practical application is generally unperceived; for though both the words and the thoughts for which they stand are commonplace enough, few persons set themselves seriously to consider what law is, and what is implied in its administration. A clear view on each of these points is, however, essential to anyone who wishes to understand the moral questions connected with advocacy. First, then, What is law? It is usually supposed that if a contrast can be drawn out between law and justice, law is, as it were, refuted and exposed; but such contrasts may be true, and may yet prove little or nothing. Law is a collection of rules, or, more properly, of commands, prescribing the application of certain principles to particular classes of circumstances, with inflexible rigidity and precision. Justice may be described, with some approach to correctness, as the sentiment on which law is founded, but, like the curve and the asymptote, they never coincide, however nearly they may approach. Probably no law was ever yet devised which entirely satisfied the sentiment of justice in every case to which it was applied. No laws arc more general, and few appear more obvious, than those which punish crimes and enforce contracts. Yet definitions of contracts and of crimes are essential to such laws, and, such is the infirmity both of human language and of human thought, that the best definitions ever constructed will always include many cases which never occurred to those who framed them, and which, if they could be settled on their own grounds, and without establishing precedents, would unquestionably be determined in a manner totally different from that in which the law determines them: yet this does not condemn the law. Many actions involving the guilt of high treason are almost universally looked upon as virtuous, some even as heroic. Yet no sane man would wish to see the law of treason relaxed. The forfeiture of a beneficial lease by some trifling neglect, which could be easily compensated by damages, appears, and in one sense is, grossly unjust; but it would be absurd to restrain people by law from making leases upon what terms they please, and it would be monstrous not to hold them to those terms when they were once made.
It is, perhaps, not too much to say that there is a natural and inevitable opposition between a definition and the sentiment on which it rests. The sentiment which condemns dishonesty is as clear and strong as any sentiment can be. But how far is it satisfied by the definition of theft? The sentiment condemns the intention even more decisively than the act. It disapproves of indirect and virtual theft more strongly than of that which is simple and comparatively open; it makes no distinction whatever between the attempt to commit the crime and its actual accomplishment; but when a definition of theft is required, all these things must be taken into account, and terms must be employed which cannot by any skill be so construed as to describe any acts whatever except those which the legislator is prepared to punish. Hence, terms must be chosen which do not describe, and therefore leave unpunished, many acts morally indistinguishable from those which are punished. It is not theft to determine to steal a purse, nor to follow the man who carries it for the purpose of stealing it, nor to stretch out the hand for the purpose of taking it, nor even to lay hold of it with the same intention. The definition is not satisfied till the purse is actually removed from its place; but as soon as that is done the crime is complete, whatever may have been the temptation, however rapidly repentance, and even confession and restitution, may follow. The servant who sees a halfpenny lying about, takes it into her hand with the intention of stealing, and immediately changes her mind and puts it back, is a thief. A professional criminal, who has planned a robbery for weeks together, who has gone out with the full intention of committing it, and who runs away at the last moment because he sees a policeman coming, has committed no crime at all; but this injustice, if it is so to be called, is inevitable. Laws must be general in their terms; and in order to punish the professional criminal and exonerate the servant-girl, it would be necessary to attach penalties to states of mind instead of overt acts; and this would, in practice, be an insupportable tyranny. Hence, a thousand cases like these would not prove that the definition which produces them is a wrong one. They merely show the opposition which always does and must exist between law and the sentiment of justice on which law is founded, and illustrate the principle that a certain harshness, sternness, and disregard of individual cases of hardship are inseparable from the very existence of law.
The first thing, therefore, to be borne in mind in examining the moral character of the profession of advocacy is, that the advocate is administering law and not attempting to satisfy the sentiment of justice, and is thus engaged in a task which is radically different from that which devolves upon persons placed in positions in private life apparently analogous to his own. The master of a house, in managing the affairs of his family, a person called in to advise upon the conduct which honour and conscience require under difficult circumstances—a man of business consulted as to the course which a tradesman in difficulties ought to pursue with regard to the interests of his creditors, are all called upon in a sense to administer justice, but they are not called upon to administer law, for no one of them has to deal, as is the case with judges and advocates, with precise rules and inflexible definitions.
Such being the general nature of law, what is the character of its administration? It may, probably, be asserted with as much confidence as such broad propositions ever deserve, that the degree of liberty which a nation enjoys may be tested by the degree in which the task of setting the law in motion is left to private persons. In our own country this practice prevails, with few exceptions, in all cases civil and criminal. Judges, barristers, and attorneys, are inactive, unless they are set in motion by private litigants who demand the application of the law to particular cases for the sake of obtaining some personal object. A man wishes to have the benefit of a contract, to receive compensation for a wrong, to get a criminal punished, and he applies to the judge appointed for that purpose to put the law in force. It is obviously necessary that the judge should hear what he has to say, and hence comes the necessity for professional advocates.
This arrangement is so familiar that there is some danger of overlooking the fact that it is only one of several modes by which the object of administering the law might be attained, each of which would require a corresponding theory of the duties of an advocate. For example, criminal justice might be, and in most countries actually is, regarded as a public, rather than a private matter. Instead of leaving private prosecutors to detect and punish criminals, and accused persons to defend themselves to the best of their power, public officers might be appointed charged with the duty of examining into the whole truth on both sides, and of reporting the results of their inquiries to the judge and jury. Methods, more or less similar, might be adopted in civil causes. It might be said that the public at large has an interest in the administration of justice, and the judge might be charged with the duty of inquiring into the matter for himself, instead of deciding on what was said by the litigants and their witnesses. An illustration of this mode of proceeding is supplied by the Divorce Court, in which the judge has the power in certain cases of directing counsel to be instructed to guard, in the interest of the public, against collusion between the parties. If any principle of this kind were adopted, the advocate would cease to be, as at present, the representative of the litigant exclusively, and would become the representative of the public. In that character he would have to discharge an entirely different set of duties from those which devolve upon him at present.
The result is that the law is a system of strict definite rules, founded on the sentiment of justice, but in a large number of individual cases inevitably conflicting with that sentiment; that these rules are applied to individual cases on the requisition of private litigants and not otherwise, and that the advocate is the representative before the court or jury, as the case maybe, of the private litigant who claims the enforcement of the law.
Such being the general character of the profession of an advocate, the first question which it suggests is, whether the obligations which it imposes are in their very nature of such a character that a conscientious man ought not to undertake them? Does the profession of an advocate place any one who acknowledges the obligation to be true and just in all his dealings, in the same position in which the profession of a hangman would place a man who believed capital punishments to be sinful, or the military profession would place a Quaker? The common sense and common experience of mankind answer that it does not; but why not? Why is it not wrong and unjust for a man to hold himself in readiness to say what is to be said in favour of any one who wishes to put the law in force against his neighbour? That every one who does so habitually must frequently take part in shocking the sentiment of justice, and in inflicting hardship often of the most grievous kind on individuals, follows from the observations already made on the nature of law. If a barrister succeeds in his profession, there can be little doubt that he will, in the course of his career, brand honest men with infamy; deprive lawful proprietors of their possessions; and possibly deprive innocent men not only of character and property, but of liberty and even of life? Why is it right to incur, without compulsion and of free choice, responsibilities (to call them by no heavier name) so tremendous?
To answer such questions by appealing to the common sense and common practice of the world, is, for practical purposes, as wise as for other than practical purposes it is unsatisfactory. In order to give not merely a reason for disregarding such difficulties in practice, but an answer which removes them, it is necessary to go deep into the foundations of morality. The true answer is one which has already been shortly glanced at. It is that for purposes of action, and especially for the purpose of deciding on the morality of professions, we must assume that life is a good thing; or at least that, not being proved to be a bad one, it is to be treated as good. From this it follows that all callings which are proved by satisfactory evidence to be essential to the transaction of the affairs of life must also be treated as good, and that such defects as are shown by experience to be inseparable from their working prove not that they are bad, but that life itself is less beneficial than it would have been without them.
Thus the steps by which the profession of advocacy is justified are as follow:—We must act on the principle that life is a good thing; therefore, that the administration of the law, which is essential to the transaction of the affairs of life, is good; therefore, that advocacy, which is essential to the administration of the law, is good; therefore, that the shocks given by the practice of advocacy to the sentiment of justice, and the hardships inflicted by it on individuals, which are inseparable from advocacy, are drawbacks from its advantages, and not objections to its existence.
The somewhat abstract character of these considerations may make some further illustration of them desirable. The objections made to advocacy are in principle the same as objections which might be urged against every pursuit in life. The profession of a physician is, perhaps, as useful as any other; yet how much might be urged against it. "You," it might be said to a young man setting out in his calling, "are about to devote yourself to a systematic attack upon disease, and the systematic prolongation of human life. Have you ever considered what is involved in that? How many of the children whose entrance into life you protect will have reason to curse your skill, and to say with Job, 'Why died I not from the womb? Why did the knees prevent me, or why the breasts that I should suck?' How often will it be your lot to protract the intolerable and useless anguish of incurable disease? How often will you be called upon to defeat the constitution of nature by relieving men from the consequences of their guilt, and enabling hardened sinners to continue to sin with comparative impunity? It will often be your lot to sentence to want, to wretchedness, perhaps to death, deserving families who would have been happy, if your skill had not prolonged the life of some wretch unfit to live; nay, you may save lives for the hangman, which but for you would have ended in comparative innocence and prosperity." To every one who marries, such considerations might be addressed with still greater force. "You," it might be said, "are going out of your way to give life to beings who in all probability will be eternally damned; and this you do without the slightest reference to their interests, and with no other object than that of gratifying your own affections and passions." No answer can possibly be given to these arguments except that which justifies the advocate, as well as the doctor and the husband. That answer is, "I am not prepared to creep into a corner, and to give up the life in which I find myself as an evil in itself. It may or may not be so, but I must, for practical purposes, adopt one view or the other; and, for various reasons, I think that it is wiser to adopt the cheerful one than to adopt the gloomy one." If this principle is once laid down, it will follow that, as every one must choose his line of life on general rules, and with a view to general results, men may properly marry, cure disease, and enforce the law; because, on the whole, life, health, and law are good things, and not bad ones, though their advantages are not unmixed.
If this general theory of the morality of advocacy is accepted, many of the common objections to it fall to the ground at once. It puts an end to all questions about pleading on the wrong side: for to the advocate whose duty it is to administer law, the wrong side means the illegal side; and which side is legally right is a question which can be decided only by a competent court; and the mode of arriving at a decision which courts of justice have deliberately adopted in this country is that of hearing all that can be said on both sides of the cases brought before them. No doubt it may be, and often is, morally wrong to exercise a legal right. It may be unmerciful, vindictive, grossly selfish, and abominably cruel to do so, but this is the concern of the litigant, not of the advocate. A legal right is a power put by society at large into the hands of a private person to be used at his discretion. The officers of the law, in their various degrees, enable him to use it, but there is no moral difference at all between the advocate who conducts to a successful termination a prosecution instituted from the vilest motives, and the judge who passes sentence on the verdict. No one blames the latter, nor ought any one to blame the former.
Many persons would admit that this is, in theory, a sufficient justification of the profession of advocacy, but they would add, "Whatever may be the theory, the practice is, in point of fact, unjustifiable. Barristers do not, as a rule, confine themselves to performing the duty which the law assigns them. They do twist evidence; they do, as far as they can, pervert and obscure the truth, and their standing and success in their profession is determined by the ability with which they contrive to do so."
This impression is as unjust as it is common. Its injustice is displayed most strikingly in the fact that it entirely overlooks the existence of a whole system of professional morality based upon the principles just stated, and rigidly enforced, not only by the authority of the judges, but by both the good and the bad qualities of the bar, by professional honour and esprit de corps on the one hand, and by personal rivalry and even jealousy on the other. It would be out of place to enter here upon a full description of this system, but it may be stated generally that its object is to maintain rigidly the representative character of the advocate. It forbids every expression and every form, either of statement or of interrogation, which would involve a surrender of that character, and make the advocate a partisan, instead of a professional agent. To attack private character without explicit instructions that the imputations made are true; to misstate the effect of evidence; to put to a jury a false view of the law; to attempt to mislead the court by garbling or misquoting cases; to insult or to attempt to confuse and bewilder a witness by a brutal manner or insolent questions; are practices which are looked upon by barristers in the light in which tradesmen look upon sanding sugar and wetting tobacco. To judge from the representations given by popular writers, it would appear to be the common opinion that such practices are regarded, both by the bench and by the bar, as triumphs of ingenuity. In Mary Barton, for example, a trial for murder is introduced, in which the counsel for the prosecution asks a witness for the prisoner a question which fills ten or twelve lines of print, which is so framed as to assert more than once that the prisoner is guilty, and that the witness is not only perjured, but bribed; and this question, it is asserted, was asked because the barrister saw, from the expression of the prosecutor's face, how anxious he was that the prisoner should be convicted.
With a little more knowledge of the profession which she was attacking, the kindly and warm-hearted authoress of this scene would have known that if there were at the bar any man brutal enough to ask such a question, no judge who has sat on the bench in modern times could have permitted it to be asked; nor would any one, however brutal, have given the counsel on the other side the easy triumph of successfully protesting against it. No doubt, if the scene were anything like a fair representation of the morals of advocates, they would deserve to be described as men willing to let themselves out to commit judicial murders for a few guineas; but, strange as the assertion may appear, a profession which contains amongst its members as large a proportion of spirited and highly cultivated men as any other is not likely to overlook such infamy, and is not, in fact, in the habit of doing so.
Such imputations as are conveyed in the passage just referred to are not merely unjust, but they are most injurious to the public, because they tend to bring the administration of justice into disrepute. Any one who has had much practical experience of criminal trials knows that no feature connected with them is more striking than the striking impartiality of the prosecuting counsel. To any one who has been personally concerned in the transaction of such business, this is not surprising. It is by no means true that a confident manner and cool nerves always, or even usually, accompany the callous brutality which would lead a man to wish to curry favour with a private prosecutor, who in all probability would never come into court again in any capacity, at the expense of conduct morally equivalent to a cowardly assassination. To prosecute a man on trial for his life is like performing a surgical operation, and a barrister in the one position is not much more likely to forget his responsibility, than a surgeon in the other. No one who has ever taken part coolly, deliberately, and with the fullest consciousness of the nature of his task in putting a fellow-creature to death, would burden his conscience with the recollection of unfair conduct in the discharge of such a duty for the contingent possibility of a future fee. The imputation referred to above is about as fair as a scene describing the readiness of a surgeon to let his knife slip at a critical moment, in order to humour an expectant heir.
It would, of course, be absurd to claim for barristers a higher standard of morality than can be claimed for members of other professions. All that can be expected of any profession, viewed as a body corporate, is that its professional rules should stigmatize the abuses to which its members are specially tempted; that the breach of the letter of such rules should be punished or prevented, and that the neglect of their spirit should be visited with general disfavour. No one who has any practical acquaintance with the bar will doubt that in each of these points it does its duty at least as strictly as any other professional body. Indeed, the publicity of the profession makes its rules more stringent than those of any other walk of life. The authority of the judges, the stringency of the rules of evidence, and the vigilance of the counsel on the other side, are securities amply sufficient to make such scenes as novelists introduce into their stories impossible in real life. They certainly do not and cannot afford a security against disingenuousness—against malignant insinuations, gratuitous imputations artfully introduced into speeches, or a harsh and brutal way of asking justifiable questions. In short, they strictly limit the sphere of an advocate's discretion, but they do, and must of necessity, leave it to him whether he will use that discretion like a gentleman or like a blackguard. In order to make out any real charge against the bar as a profession, it would be necessary to show that its general sentiment was favourable to the latter course; that, other things being equal, the blackguard and liar, by reason of his brutality and falsehood, was more honoured and more highly rewarded than the gentleman and man of honour.
There is no doubt an impression that this is so, but it is not only false in fact, but is capable of being both explained and refuted. The explanation of it is simple. Everyone, except professional lawyers, forms his opinion of barristers either from personal experience, or from the newspapers. If he forms it from personal experience, he is almost sure to be influenced by the strongest prejudice. Litigation is in the nature of things exceedingly unpleasant. No one likes the man whom he has either sued or been sued by, and it would be strange if he did not dislike his representative even more than himself. Average human beings cannot be expected to judge quite candidly of a man who devotes all his energies to finding fault with them, to showing that they are in the wrong, to injuring their interests, or possibly their character; the litigant is even less likely to be better satisfied with his own advocate—a man who treats him with irritating coolness, cuts his explanations short, takes his business out of his hands, and acts on the assumption that in an hour or two he takes in the whole bearings of a case over which his client has perhaps been poring for months.
The judgment formed of barristers from the newspapers is also too unfavourable for a different set of reasons. People read newspapers, and especially the trials reported there, almost exclusively for amusement. The most important cases brought into court "possess," to use the reporter's phrase, "no interest for the general public." Mercantile causes of all kinds, questions about dispositions of property, actions between landlord and tenant, proceedings about the rights and duties of public authorities, such as corporations, questions as to rights of way, local customs, and other matters which it would be tedious to mention, are amongst the most important branches of litigation, and impose upon the advocates engaged in them their most laborious, and also their most lucrative duties; but such matters as these are naturally passed over very shortly in the columns of newspapers. The cases which are reported there at full length are matters of a slightly scandalous kind. Actions for libel, assault, seduction, or breach of promise of marriage—actions by fraudulent bill discounters—horse causes in which whole days are spent in complicated perjury—and, in fact, every suit which could be classed under the general title of Fool v. Knave, are the cases which are reported and read, and from which the public form their notion as to what sort of people barristers are. These cases give far too low a notion of advocacy, and of those who practise it. The litigants are usually both rogues and fools, they naturally resort to a low class of attorneys, who again have a natural affinity for the lowest kind of barrister. Those who have a special turn for this kind of business, and who are supposed to be the most distinguished members of the profession by those who measure professional eminence by the frequency with which a man's name appears in the newspaper, form a class which is small, disreputable, and shut out to a great extent from really high professional distinction. After a short experience of Westminster Hall, it would be easy for any one to recognize at a glance the members of this class. The callous insensibility, the brutal indifference to the feelings of others, the hardened vulgarity which can never rise above a sort of metallic bombast, the unvarying mannerism which makes every speech, upon every subject, look like variations upon one tune, have almost always made their mark on the features, the tone of voice, and the very gait and gesture. It is from this small section of a noble profession that too many persons form their opinion of the whole of it; and it is not surprising that that opinion should be a low one. It is unfortunately true that there are amongst English barristers a certain number of ruffians as brutal and as false as any of their clients. It is, however, utterly untrue that these men are a fair specimen of their profession. Where the bar is sufficiently numerous the principle of the division of labour allots the dirty work to those who are fit for it; but where the number is smaller—on most of the circuits, for example—such a class as that just described is not found; and the consequence is, that when a dirty cause has to be tried, it is tried in a comparatively inoffensive way. Reckless imputations are not made, witnesses arc not browbeaten, the judge knows that the counsel will not misstate evidence, or conduct the case so as to inflict needless pain and hurt the feelings or characters of absent persons.
It is by no means true that in order to obtain this result any sacrifice of efficiency is necessary, or that the man who degrades himself into being the tool of another person's malignity does his work better, or is more highly rewarded, than the man who knows and does his duty. The class referred to above are generally ignorant of law and destitute of education. They owe their success, such as it is, to plain sense and a natural turn for public speaking; but these, though good gifts, are by no means enough to raise a man to the top of his profession. There is a point at which the higher qualities of the mind begin to tell upon professional prospects, and which is seldom if ever passed by those who are without them. Political life is one great avenue to the highest legal honours; but the mere forensic bully is unfit for Parliament. An assembly of gentlemen is not to be addressed in the spirit and with the stock of knowledge which make a bill-broking attorney fall down and worship the work of his own and his fellows' briefs; and a man who has passed the best years of his life in bullying and swaggering with distinguished success on one side of Westminster Hall, will find, when he contrives to pass to the other, that men with better characters and better education, though of smaller natural ability, will become Attorney or Solicitor General, or take their seats on the bench, whilst he is still enjoying the privilege of making honest women blush for the gratification of the gaping fools who look upon him as a distinguished lawyer.
Legal knowledge is another passport to high legal distinction; but this is not only not usually associated with the sort of dirty eminence under consideration, but is hardly consistent with it. It takes years of study and thought to make a great lawyer, and when a man is ascertained to be one he will have something better to do than to be at the orders of every wretched pettifogger who can cook up an action for an assault or an illegal distress. A man who chooses to take up the petty line of business may do so; but if he does, he sacrifices the prospect of rising beyond a petty level.
The general character of litigation is in itself a proof that it cannot be advantageously conducted by dishonest men. It is one of the foolish errors into which people are led by the wish to look knowing, to assert that litigation is generally dishonest. In fact, it is an uncommon thing for people to go to law unless, whether right or wrong, they have a substantial reason for doing so. No doubt a certain proportion of legal proceedings arise out of mere spite, fomented, possibly, by rogues who wish to profit by it. But these cases form the exceptions. There is in every large nation a vast mass of substantial litigation, which is produced by various causes. Such, for example, is the irregular, informal manner in which people do business when they have confidence in each other, and the fact that unforeseen events often disturb that confidence, and make it necessary to put a precise construction on words and acts which never had any precise meaning. Another great source of it is to be found in misunderstandings, which may begin in perfect good faith, but go on increasing and widening till they assume the form of quarrels, which it is absolutely necessary to settle judicially. Bona fide disputes upon matters of fact are a third source of litigation. Whether a man was in his right mind when he made a will; what really occurred between two persons who have different impressions of the same transaction; what was the cause of a railway accident; whether or not it was produced by the negligence of the company's servants,—these, and other questions of the same sort, are specimens of the inevitable intricacy of human affairs—an intricacy which unavoidably causes differences of opinion between perfectly honourable men.
When such questions as these are under discussion, a bona fide litigant does not wish to have his claim advocated as if he were a rogue and a cheat. He wishes to win, not merely because he wants the money, but because he wants his rights, and he therefore prefers a man of honour for his representative. It is only in novels that people engage in lawsuits with the conviction that they are in the wrong. In real life there is nothing of which they are more firmly convinced than that they are right, and that if the truth came out it would secure their triumph. So much is this the case that it furnishes an answer, independent of that already given, to the common charge against advocacy, that the advocate has to plead on the wrong side. All that he knows of either side is contained in his own brief, and it must be a very singular brief indeed if it does not establish the claim of the person on whose behalf it is delivered in a thoroughly satisfactory manner. No one, or hardly anyone, is ever wrong on his own showing. If he were, he would not come into court.
Of the many foolish things that are said about the bar, few are more foolish than the common assertion that moral vices, such as impudence, coarseness, and lying, are useful to a lawyer. In fact, honesty is the best policy in that, in precisely the same sense as in other professions. Each of the three vices first named is on the whole injurious to a man's legal prospects. Impudence is often confounded with the possession of strong nerves—the advantage of which no one disputes; but it is in reality quite a different thing. It is no more than insensibility to shame, arising from the absence of that internal warning which holds a man back from doing what is wrong, or makes him feel ashamed of himself if he does; but how is this an advantage to any one? It can only be one in the supposition that to do the shameful thing, which modesty withholds a man from doing, is an advantage; but the contrary of this has been already sufficiently shown. Impudence is very like imperfect bodily senses; it consists not in an excess of courage, but in a want of sensibility, and is a most serious defect both in speaking and in the examination of witnesses. It is impossible to do either of these things well unless the speaker can establish sympathy between himself and those whom he is addressing, and to this considerable sensibility is indispensable. An impudent man does not feel whether the judge and the jury are listening to him or not, nor has he any notion of the impression which he is making. He cannot feel for the witness whom he examines, and, therefore, never examines him well, for he does not see how his questions affect him. The same may be said to a great extent of coarseness, which has, moreover, the additional disadvantage disgusting those who listen to it.
The notion that disregard to truth is an advantage to a barrister, is of all the spiteful commonplaces which people take a foolish pleasure in repeating upon the subject, the most absurd. The silly jokes about brieflessness, which were certainly threadbare twenty and probably a hundred years ago, appear to have created an impression that a barrister is a sort of educated beggar, absolutely dependent on all his clients, jointly and severally, with no character to lose, and bound down to an abject subserviency to every one who gives him a brief, in respect of every brief which he receives. Such notions, childish as they are, afford the only possible explanation of the impression as to the advantage which a barrister is supposed to derive from acquiring a reputation for falsehood. In fact, such a reputation is, apart from its infamy, a most serious calamity. A man suspected of that vice is never trusted, either by the judges or by the bar; and no one who does not know by practical experience how much the despatch of business depends on the existence of such confidence, can estimate the loss which the want of it inflicts. Suppose a man has promised an attorney that he will personally attend a particular case, and leaves it at the last moment to his junior;—is that likely to prolong their connection? Suppose a judge detects him in misstating the effect of an affidavit, and on all subsequent occasions insists on his reading his affidavits straight through—is that likely to make him a pleasant person to deal with? Suppose that after giving a promise to the counsel on the other side to produce a particular witness, or to make a particular admission, he refuses to do so—is he likely to be trusted with confidence in return? The simple truth is, that advocacy is neither more nor less moral than other professions. It is a practical expedient devised as the best mode of doing a very difficult thing, namely, administering the law. It shares with all other human pursuits the reproach of doing harm as well as good, though on the whole it does good. It possesses a high and strict standard of professional morality, which is, however, evaded by a noisy and conspicuous section of its members; and it gives its prizes to those who have the intellectual and physical strength to win them; but in attaining them the possession of the principal moral virtues are a considerable, though not an indispensable assistance.
Cornhill Magazine, April 1861.