S. Austin Allibone, comp. Prose Quotations from Socrates to Macaulay. 1880.
The body of the law is no less encumbered with superfluous members, that are like Virgils army, which he tells us was so crowded, many of them had not room to use their weapons. This prodigious society of men may be divided into the litigious and peaceable. Under the first are comprehended all those who are carried down in coach-fulls to Westminster-hall every morning in term time. Martials description of this species of lawyers is full of humour:
Iras et verba locant.
Men that hire out their words and anger; that are more or less passionate according as they are paid for it, and allow their client a quantity of wrath proportionate to the fee which they receive from him.
I hold every man a debtor to his profession; from the which as men of course do seek to receive countenance and profit, so ought they of duty to endeavour themselves, by way of amends, to be a help and ornament thereunto.
Francis Bacon: Upon the Elements and Use of the Common Law, Pref.
Secondly for the advocates and counsel that plead. Patience and gravity of bearing is an essential part of justice; and an over-speaking judge is no well-tuned cymbal . Let not the Counsel at the bar chop with the judge certain persons that are sowers of suits, which make the court swell and the country pine.
There are two very different methods of acquiring knowledge of the laws of England, and by each of them men have succeeded in public estimation to an almost equal extent. One of them, which may be called the old way, is a methodical study of the general system of law, and of its grounds and reasons, beginning with the fundamental law of estates and tenures, and pursuing the derivative branches in logical succession, and the collateral subjects in due order; by which the student acquires a knowledge of principles that rule in all departments of the science, and learns to feel, as much as to know, what is in harmony with the system and what not. The other is, to get an outline of the system by the aid of commentaries, and to fill it up by desultory reading of treatises and reports, according to the bent of the student, without much shape or certainty in the knowledge so acquired until it is given by investigation in the course of practice. A good deal of law may be put together by a facile or flexible man in the second of these modes, and the public are often satisfied; but the profession itself knows the first, by its fruits, to be the most effectual way of making a great lawyer.
Horace Binney: Encyc. Amer., xiv., art. Edward Tilghman.
A lawyer who has passed his youth and early manhood in the society of such men is the happier for it through life, and especially in old age. On all occasions of vexation or weariness with things near at hand, he can escape at pleasure into the past of these men, which was full of their influence, full also of judicial independence and dignity, and full of professional honour, with unlimited public respect; from which scene the few clouds that are to be found in the clearest skies have been absorbed or dispelled by time, and to which the clouds of his own day, if there are any, cannot follow him.
Horace Binney: The Leaders of the Old Bar of Philadelphia, 1859, Preface.
Old authorities no longer divide with old wine the reverence of either seniors or juniors. Most of the old law books, that used to be thought almost as good a foundation for their part of the truth as the prophets and apostles are for the whole truth, are taken away, I rather think, from the bottom of the building, and thrown into the garret. That Littleton upon whom Coke sits, or seems to sit to the end of things, as Carlyle says, has fewer than of old, I suspect, to sit with him for long hours to alleviate the incumbrance. For the most part, as I am told, the incumbent and the succumbent lie together in the dust,which uppermost not many care to know. All the Entries, Brooke, and Coke, and Levinz, and Rastall, and the others, have made their exits some time ago, and will not appear again before the epilogue. Almost any law book that is more than twenty-one years of age, like a single lady who has attained that climacter, is said to be too old for much devotion. Indexes, Digests, and Treatises, which supply thoughts without cultivating the power of thinking, and are renewed with notes and commentaries de die en diem, to spare the fatigue of research, are supposed to be the best current society for student as well as for practitioner. Such are the rumours which float upon the air. Old things are passed away, all things are new,a great truth in its own sense when it was first spoken, and always,is now thought to be true in all senses, and renewable from year to year, forever; and lawyers give as ready a welcome to new things, and turn as cold a shoulder to the old, as the rest of the world. Such is the apprehension.
Horace Binney: The Leaders of the Old Bar of Philadelphia, 1859, 10.
I might instance in other professions the obligations men lie under of applying to certain parts of history; and I can hardly forbear doing it in that of the law,in its nature the noblest and most beneficial to mankind, in its abuse and debasement the most pernicious. A lawyer now is nothing more (I speak of ninety-nine in a hundred at least), to use some of Tullys words, Nisi læguleius quidam cautus, et arutus præco actionum cantor formularum, auceps syllabarum. But there have been lawyers that were orators, philosophers, historians. There have been Bacons and Clarendons. There will be none such any more till, in some better age, true ambition or the love of fame prevails over avarice, and till men find leisure and encouragement to prepare themselves for the exercise of this profession by climbing up to the vantage groundso my Lord Bacon calls itof science, instead of grovelling all their lives below in a mean but gainful application to all the little arts of chicane. Till this happen, the profession of the law will scarce deserve to be ranked among the learned professions; and, whenever it happens, one of the vantage grounds to which men must climb is metaphysical, and the other historical, knowledge. They must pry into the secret recesses of the human heart and become well acquainted with the whole moral world, that they may discover the abstract reason of all laws; and they must trace the laws of particular statesespecially of their ownfrom the first rough sketches to the more perfect draughtsfrom the first causes or occasions that produced them, through all the effects, good and bad, that they produced.
In discretionally abandoning the exercise of the power which I feel I have, in postponing for the present the statement of that case of which I am possessed, I feel confident that I am waiving a right which I possess, and abstaining from the use of materials which are mine. And let it not be thought, my Lords, that if either now I did conceive, or if hereafter I should so far be disappointed in my expectation that the cause against me will fail, as to feel it necessary to exercise that right,let no man vainly suppose that not only I, but that any, the youngest, member of the profession would hesitate one moment in the fearless discharge of his paramount duty. I once before took leave to remind your Lordshipswhich was unnecessary, but there are many whom it may be needful to remindthat 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 meansto protect that client at all hazards and costs to all others, and among others to himselfis 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 any 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 confusion for his clients protection!
Lord Brougham: Defence of Queen Caroline before the House of Lords, 1820: Life and Times of Henry Lord Brougham, ii., 406, n.
When I said that it might be my painful duty to bring forward what would involve the country in confusion, I was astonished that everybody should have conceived recrimination to be all I intended . The ground, then, was neither more nor less than impeaching the kings own title, by proving that he had forfeited the crown. He had married a Roman Catholic (Mrs. Fitzherbert) while heir-apparent, and this is declared by the Act of Settlement to be a forfeiture of the crown, as if he were naturally dead. We were not in possession of all the circumstances as I have since ascertained them, but we had enough to prove the fact. Mrs. Fitzherberts uncle, Mr. Errington, who was present at the marriageindeed, it was performed at his housewas still alive . Mrs. Fitzherbert was possessed of a will of the Prince in her favour, signed with his own hand, if not written entirely by himself, and in which he calls her his dear wife. I had a copy of this, if not the original, given me by her favourite, and adopted child, Mrs. Dawson Damer, who naturally took a warm interest in defending the memory of her friend and protectress.
The lawyer [as well as the divine] has his forms, and his positive institutions too, and he adheres to them with a veneration altogether as religious. The worst cause cannot be so prejudicial to the litigant, as his advocates or attorneys ignorance or neglect of these forms. A lawsuit is like an ill-managed dispute, in which the first object is soon out of sight, and the parties end upon a matter wholly foreign to that on which they began. In a lawsuit the question is, who has a right to a certain house or farm? And this question is daily determined, not upon the evidence of the right, but upon the observance or neglect of some forms of words in use with the gentlemen of the robe, about which there is even amongst themselves such a disagreement that the most experienced veterans in the profession can never be positively assured that they are not mistaken.
Let us expostulate with these learned sages, these priests of the sacred temple of justice. Are we judges of our own property? By no means. You, then, who are initiated into the mysteries of the blindfold goddess, inform me whether I have a right to eat the bread I have earned by the hazard of my life or the sweat of my brow? The grave doctor answers me in the affirmative; the reverend serjeant replies in the negative; the learned barrister reasons upon one side and upon the other, and concludes nothing. What shall I do? An antagonist starts up and presses me hard. I enter the field, and retain these three persons to defend my cause. My cause, which two farmers from the plough could have decided in half an hour, takes the court twenty years. I am however at the end of my labour, and have in reward for all my toil and vexation a judgment in my favour. But holda sagacious commander in the adversarys army has found a flaw in the proceeding. My triumph is turned into mourning. I have used or instead of and, or some mistake, small in appearance, but dreadful in its consequences; and have the whole of my success quashed in a writ of error.
It is hard to say whether the doctors of law or divinity have made the greater advances in the lucrative business of mystery. The lawyers, as well as the theologians, have erected another reason besides natural reason; and the result has been another justice besides natural justice. They have so bewildered the world and themselves in unmeaning forms and ceremonies, and so perplexed the plainest matters with metaphysical jargon, that it carries the highest danger to a man out of that profession, to make the least step without their advice and assistance. Thus, by confining to themselves the knowledge of the foundation of all mens lives and properties, they have reduced all mankind into the most abject and servile dependence.
God forbid I should insinuate anything derogatory to that profession which is another priesthood, administering the rites of sacred justice! But whilst I revere men in the functions which belong to them, and would do as much as one man can do to prevent their exclusion from any, I cannot, to flatter them, give the lie to Nature. They are good and useful in the composition; they must be mischievous, if they preponderate so as virtually to become the whole. Their very excellence in their peculiar functions may be far from a qualification for others. It cannot escape observation, that, when men are too much confined to professional and faculty habits, and, as it were, inveterate in the recurrent employment of that narrow circle, they are rather disabled than qualified for whatever depends on the knowledge of mankind, on experience in mixed affairs, on a comprehensive, connected view of the various, complicated, external and internal interests which go to the formation of that multifarious thing called a State.
Edmund Burke: Reflections on the Revolution in France, 1790.
I am grieved to hear that the reading of Coke upon Littleton is going out of fashion among law students. When I was commencing my legal curriculum, I was told this anecdote:A young student asked Sir Vicary Gibbs how he should learn his profession. Sir Vicary. Read Coke upon Littleton. Student. I have read Coke upon Littleton. Sir Vicary. Read Coke upon Littleton over again. Student. I have read it twice over. Sir Vicary. Thrice? Student. Yes, three times over, very carefully. Sir Vicary. You may now sit down and make an abstract of it.
If my opinion is of any value, I would heartily join in the same advice. The book contains much that is obsolete, and much that is altered by statutable enactment; but no man can thoroughly understand the law as it now is without knowing the changes it has undergone, and no man can be acquainted with its history without being familiar with the writings of Lord Coke. Nor is he by any means so dry and forbidding as is generally supposed. He is certainly unmethodical, but he is singularly perspicuous, he fixes the attention, his quaintness is often most amusing and he excites our admiration by the inexhaustible stores of erudition which, without any effort, he seems spontaneously to pour forth. Thus were our genuine lawyers trained. Lord Eldon read Coke upon Littleton once, twice, thrice, and made an abstract of the whole work as a useful exerciseobeying the wise injunction, Legere multumnon multa.
Lord Campbell: Lord Chancellors, vii.: Lord Eldon.
Pray let no quibbles of lawyers, no refinements of casuists, break into the plain notions of right and wrong which every mans right reason and plain common sense suggest to him. To do as you would be done by is the plain, sure, and undisputed rule of morality and justice. Stick to that; and be convinced that whatever breaks into it, in any degree, however speciously it may be turned, and however puzzling it may be to answer it, is, notwithstanding, false in itself, unjust, and criminal.
Lord Chesterfield: Letters to his Son, Sept. 27, 1748.
Forensic eloquence may be said to lose in comprehension what it gains in acuteness, as an eye so formed as to perceive the motion of the hour-hand would be unable to discover the time of the day. We might also add, that a mind long hackneyed in anatomizing the nice distinctions of words must be the less equal to grapple with the more extended bearings of things; and that he that regulates most of his conclusions by precedent, that is past, will be somewhat embarrassed when he has to do with power that is present.
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 on 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.
Jonathan Dymond: Essays on the Principles of Morality.
An attorneys ancient beginning was a blue coat, since a livery, and his hatching under a lawyer; whence, though but pen-feathered, he hath now nested for himself, and with his hoarded pence purchased an office. Two desks and a quire of paper set him up, where he now sits in state for all comers. We can call him no great author, yet he writes very much, and with the infamy of the court is maintained in his libels. He has some snatch of a scholar, and yet uses Latin very hardly; and, lest it should accuse him, cuts it off in the midst, and will not let it speak out. He is, contrary to great men, maintained by his followersthat is, his poor country clients, that worship him more than their landlord; and be they never such churls, he looks for their courtesy.
He first racks them soundly himself, and then delivers them to the lawyer for execution. His looks are very solicitous, importing much haste and despatch; he is never without his hands full of business, that isof paper. His skin becomes at last as dry as his parchment, and his face as intricate as the most winding cause. He talks statutes as fiercely as if he had mooted seven years in the inns of court, when all his skill is stuck in his girdle, or in his office window. Strife and wrangling have made him rich, and he is thankful to his benefactor, and nourishes it. If he live in a country village, he makes all his neighbours good subjects: for there shall be nothing done but what there is law for. His business gives him not leave to think of his conscience; and when the time, or term, of his life is going out, for doomsday he is secure; for he hopes he has a trick to reverse judgment.
Bishop John Earle: Microcosmographie (The Attorney).
When I first went the Northern Circuit, I employed my time, having no business of my own, in attending to the manner in which the leading counsel did their business. I left Lancaster at the end of a circuit, with my friend Jack Lee, at that period a leader upon the circuit. We supped and slept at Kirby Lonsdale, or Kitby Stephen. After supper I said to him, I have observed that throughout circuit, in all causes in which you are concerned, good, bad, indifferent, whatever their nature was, you equally exerted yourself to the uttermost to gain verdicts, stating evidence and quoting cases as such statement and quotation should give you a chance of success, the evidence and the cases not being stated clearly, or quoted with a strict attention to accuracy and to fair and just representation. Can that, said I, Lee, be right? Can it be justified? Oh, yes, he said, undoubtedly. Dr. Johnson has said that counsel were at liberty to state, as the parties themselves would state, what it was most for their interest to state. After some interval, and when he had had his evening bowl of milk punch and two or three pipes of tobacco, he suddenly said, Come, Master Scott, let us go to bed. I have been thinking upon the question that you asked me, and I am not quite so sure that the conduct you represented will bring a man peace at the last.
Lord Eldon: Campbells Lord Chancellors, vii.: Life of Lord Eldon.
It is the boast of an Englishman that his property is secure, and all the world will grant that a deliberate administration of justice is the best way to secure his property. Why have we so many lawyers, but to secure our property? Why so many formalities, but to secure our property? Not less than one hundred thousand families live in opulence, elegance, and ease, merely by securing our property.
Let not the American student of law suppose that the same necessity does not here exist, as in England, to make this golden book [Coke upon Littleton] his principal guide in the real law. All precedent in this country contradicts such an idea. The present generation of distinguished lawyers, as well as that which has just passed away, have given ample proofs of their familiarity with the writings of Lord Coke; and our numerous volumes of reports daily illustrate that, with trivial exceptions, what is the law of real property at Westminster Hall is equally so in the various tribunals throughout our extensive country.
The popular dramatists of all ageswho hold the mirror up to naturehave invariably introduced members of my profession amongst their dramatis personæ, in this capacity: sometimes as ferrety, vivacious, impudent rogues; occasionally as heavy, solemn, oleaginous specimens of the class: invariably with some sinister design upon the happiness of the hero and heroine of the piece.
It happens, however, that we, though rogues, are not banished without the pale of friendship, but participate in the amenities of life, in common with the exciseman, the sexton, and even Jack Ketch, I am happy, for example, to own a friend in the parson. In the greater part of the disputed will cases which come before me in my roguish capacity, I recognize the kind hand of my clerical friend. The delightful ambiguity which exists in his mind with respect to such phrases as heirs, executors, administrators, and assigns; tenants in common, joint tenants, tenants in tail, etc., together with his insuperable partiality for making the will of a parishioner, which he commencesThis is the last Will and Testament, etc., and burdens with legal phrases, until it presents much the appearance of an Act of Parliament in convulsions, are esteemed by me as evidences of the sincerity of his affection. That he may long continue thus to attend to the temporal as well as spiritual concerns of his flock, is the sincere desire ofWeasel.
The Commentary [Coke upon Littleton] ought to be studied and mastered by every lawyer who means to be well acquainted with the reasons and grounds of the law, and to adorn the noble science he professes.
Great advocates themselves, such as Romilly, have very distinctly pronounced themselves against that view which seems at present the prevailing one among the lawyers; and Dr. Thomas Arnold was so deeply impressed with the moral danger to which the profession of the law, at present, exposes its votary, that he used to persuade his pupils not to become lawyers . It ought to be observed, however, that a more correct opinion on the obligations of the advocate seems to be fast gaining ground in England. At present it seems to be restricted to the public; but the time will come when this opinion will reach the profession itself. Like almost all reforms, it comes from without, and will ultimately force an entrance into the courts and inns. We are thus earnest in our desire of seeing correct views on the subject prevail, because we have so high an opinion of the importance of the advocate in a modern free polity.
Francis Lieber: On Civil Liberty and Self-Government. See, also, Lieber on The Character of a Gentleman. 3d ed., Phila., 1864. 12mo, 68, n.
Somers spoke last [in the Trial of the Seven Bishops]. He spoke little more than five minutes: but every word was full of weighty matter; and when he sat down, his reputation as an orator and a constitutional lawyer was established.
Lord Thomas Babington Macaulay: History of England, ch. viii.
How it chanced that a man who reasoned on his premises so ably should assume his premises so foolishly, is one of the great mysteries of human nature. The same inconsistency may be observed in the schoolmen of the middle ages. Those writers show so much acuteness and force of mind in arguing on their wretched data, that a modern reader is perpetually at a loss to comprehend how such minds came by such data. Not a flaw in the superstructure which they are rearing escapes their vigilance. Yet they are blind to the obvious unsoundness of the foundation. It is the same with some eminent lawyers. Their legal arguments are intellectual prodigies, abounding with the happiest analogies and the most refined distinctions. The principles of their arbitrary science being once admitted, the statute-book and the reports being once assumed as the foundations of reasoning, these men must be allowed to be perfect masters of logic. But if a question arises as to the postulates on which their whole system rests, if they are called upon to vindicate the fundamental maxims of that system which they have passed their lives in studying, these very men often talk the language of savages or children. Those who have listened to a man of this class in his own court, and who have witnessed the skill with which he analyzes and digests a vast mass of evidence, or reconciles a crowd of precedents which at first sight seem contradictory, scarcely know him again when, a few hours later, they hear him speaking on the other side of Westminster Hall in his capacity of legislator. They can scarcely believe that the paltry quirks which are faintly heard through a storm of coughing, and which do not impose on the plainest country gentleman, can proceed from the same sharp and vigorous intellect which had excited their admiration under the same roof and on the same day.
Johnson decided literary questions like a lawyer, not like a legislator. He never examined foundations where a point was already ruled. His whole code of criticism rested on pure assumption, for which he sometimes quoted a precedent or an authority, but rarely troubled himself to give a reason drawn from the nature of things.
Lord Thomas Babington Macaulay: Boswells Life of Johnson, Sept, 1831.
Mr. Montagu maintains that none but the ignorant and unreflecting can think Bacon censurable for anything that he did as counsel for the crown, and that no advocate can justifiably use any discretion as to the party for whom he appears. We will not 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 perplexing another, to cause a jury to think that statement false.
Lord Thomas Babington Macaulay: Lord Bacon, July, 1837.
It is true that, after the Revolution, when the Parliament began to make inquisition for the innocent blood which had been shed by the last Stuarts, a feeble attempt was made to defend the lawyers who had been accomplices in the murder of Sir Thomas Armstrong, on the ground that they had only acted professionally. The wretched sophism was silenced by the execrations of the House of Commons. Things will never be well done, said Mr. Foley, till some of that profession be made examples. We have a new sort of monsters in the world, said the younger Hampden, haranguing a man to death. These I call blood-hounds. Sawyer is very criminal, and guilty of this murder. I speak to discharge my conscience, said Mr. Galloway. I will not have the blood of this man at my door. Sawyer demanded judgment against him and execution. I believe him guilty of the death of this man. Do what you will with him. If the profession of the law, said the elder Hampden, gives a man authority to murder at this rate, it is the interest of all men to rise and exterminate that profession. Nor was this language held only by unlearned country gentlemen. Sir William Williams, one of the ablest and most unscrupulous lawyers of the age, took the same view of the case. He had not hesitated, he said, to take part in the prosecution of the Bishops, because they were allowed counsel. But he maintained that, where the prisoner was not allowed counsel, the Counsel for the Crown was bound to exercise a discretion, and that every lawyer who neglected this distinction was a betrayer of the law. But it was unnecessary to cite authority. It is known to everybody who has ever looked into a court of quarter-sessions that lawyers do exercise a discretion in criminal cases; and it is plain to every man of common sense that if they did not exercise such a discretion they would be a more hateful body of men than those bravos who used to hire out their stilettoes in Italy.
Sir, be prevailed withal to keep constantly a Court of Chancery in your own breast; and scorn and fear to do any thing but what your conscience will pronounce consistent with, yea, conducing to, Glory to God in the highest, on earth peace, good will towards men. The very nature of your business leads you to meditations on a judgment to come. Oh that you would so realize and antedate that judgment as to do nothing but what you may verily believe will be approved in it! This piety must operate very particularly in the pleading of causes. You will abhor, sir, to appear in a dirty cause. If you discern that your client has an unjust cause, you will faithfully advise him of it. Utrum fallaciis et deceptionibus ad convincendum adversarium uti liceat? Whether it be lawful to use falsehood and deception for the purpose of defeating an opponent? This is the question. It is to be hoped that you will determine it like an honest man. You will he sincerely desirous truth and right may take place. You will speak nothing that shall be to the prejudice of either. You will abominate the use of all unfair arts: to confound evidences, to browbeat testimonies, to suppress what may give light in the case: you have nothing against that old rule of pleading a cause: Cognita iniquitate, a suscepto ejus patrocinio advocatus desistere debet: When the guilt of a client is ascertained, the advocate should refuse to defend him. I remember Schusterus, a famous lawyer and counsellor, who died at Heidelberg, A.D. 1672, has one admirable stroke on his epitaph:
Morti proximus vocem emisit,
Nihil se unquam suassisse consitio,
Cujus jam jam moriturum peniteret.
When at the point of death, he declared that he had never given counsel for which at that moment he was sorry. A lawyer who can go out of the world with such expressions were a greater blessing to the world than can be expressed.
If I were worthy to advise, the slow speaker, methinks, should be more proper for the pulpit, and the other for the bar; and that because the employment of the first does naturally allow him all the leisure he can desire to prepare himself, and besides his career is performd in an even and unintermitted line, without stop or interruption; whereas the pleaders business and interest compells him to enter the lists upon all occasions, and the unexpected objections and replies of his adverse party justle him out of his course, and put him upon the instant to pump for new and extempore answers and defences.
Michel de Montaigne: Essays, Cottons 3d ed., ch. x.
Let the student often stop and examine himself upon what he has read. It would be an excellent mode of proceeding for him, after having read a lecture or chapter, to lay aside the book and endeavour to commit the substance of it to writing, trusting entirely to his memory for the matter, and using his own language. After having done this, let him reperuse the section, by which he will not only discern what parts have escaped his memory, but the whole will be more certainly impressed upon his mind, and become incorporated with it as if it had been originally his own work. Let him cultivate intercourse with others pursuing the same studies, and converse frequently upon the subject of their reading. The biographer of Lord Keeper North has recorded of him that he fell into the way of putting cases (as they call it), which much improved him, and he was most sensible of the benefit of discourse: for I have observed him often say that (after his days reading) at his nights congress with his professional friends, whatever the subject was, he made it the subject of discourse in the company: for, said he, I read many things which I am sensible I forgot; but I found, withal, that if I had once talked over what I had read, I never forgot that.
Judge George Sharswood: Blackstones Comment., Study of the Law, note.
The work [Coke upon Littleton] is one which cannot be too highly prized or too earnestly recommended to the diligent study of all who wish to be well grounded in legal principles. For myself, I agree with Mr. Butler in the opinion that he is the best lawyer who best understands Coke upon Littleton.
There is perhaps no profession, after that of the sacred ministry, in which a high-toned morality is more imperatively necessary than that of the law . High moral principle is his only safe guide; the only torch to light his way amidst darkness and obstruction. It is like the spear of the guardian of Paradise:
If a lawyer were to be esteemed only as he uses his parts in contending for justice, and were immediately despicable when he appeared in a cause which he could not but know was an unjust one, how honourable would his character be! And how honourable is it in such among us, who follow the profession no otherwise than as labouring to protect the injured, to subdue the oppressor, to imprison the careless debtor, and do right to the painful artificer! But many of this excellent character are overlooked by the greater number; who affect covering a weak place in a clients title, diverting the course of an inquiry, or finding a skilful refuge to palliate a falsehood: yet it is still called eloquence in the latter, though thus unjustly employed: but resolution in an assassin is according to reason quite as laudable, as knowledge and wisdom exercised in the defence of an ill cause.
The lawyer who is vehement and loud in the cause wherein he knows he has not the truth of the question on his side, is a player as to the personated part, but incomparably meaner than he as to the prostitution of himself for hire: because the pleaders falsehood introduces injustice; the player feigns for no other end but to divert or instruct you.
The law is a science of such vast extent and intricacy, of such severe logic and nice dependencies, that it has always tasked the highest minds to reach even its ordinary boundaries. But eminence in it can never be attained without the most laborious study, united with talents of a superior order. There is no royal road to guide us through its labyrinths. These are to be penetrated by skill, and mastered by a frequent survey of landmarks. It has almost passed into a proverb that the lucubrations of twenty years will do little more than conduct us to the vestibule of the temple; and an equal period may well be devoted to exploring the recesses.
Judge Joseph Story: Discourse on John H. Ashmun: Storys Life and Letters, ii. 145.
Sir Matthew Hale, whenever he was convinced of the injustice of any cause, would engage no more in it than to explain to his client the grounds of that conviction; he abhorred the practice of misreciting evidence, quoting precedents in books falsely or unfairly, so as to deceive ignorant juries or inattentive judges; and he adhered to the same scrupulous sincerity in his pleadings which he observed in the other transactions of life. It was as great a dishonour as a man was capable of, that for a little money he was hired to say otherwise than he thought.
Richard Whately: Lect. on the Intellectual and Moral Influences of the Professions: License of Counsel.
A pleader of powers far above the average is not, as such, serviceable to the Public. He obtains wealth and credit for himself and his family; but any special advantage accruing from his superior ability, to those who chance to be his clients, is just so much loss to those he chances to be opposed to: and which party is, on each occasion, in the right, must be regarded as an even chance. His death, therefore, would be no loss to the Public; only to those particular persons who might have benefited by his superior abilities, at their opponents expense. It is not that advocates generally are not useful to the Public. They are even necessary. But extraordinary ability in an advocate is an advantage only to himself and his friends. To the Public, the most desirable thing is, that pleaders should be as equally matched as possible; so that neither John Doe nor Richard Roe should have any advantage independent of the goodness of his cause.
I will add one remark upon the danger incurred by the advocateeven if he be one who would scruple either wilfully to use sophistry to mislead a judge, or to perplex and browbeat an honest witnessof having his mind alienated from the investigation of truth . A judge, or any one whose business it is to ascertain truth, is to decide according to the preponderance of the reasons; but the pleaders business is merely to set forth as forcibly as possible those on his own side. And if he thinks that the habitual practice of this has no tendency to generate in him, morally any indifference, or intellectually any incompetency, in respect of the ascertainment of truth,if he considers himself quite safe from any such danger,I should then say that he is in very great danger.
Richard Whately: Annot. on Bacons Essay, Of Judicature.
I think that the kind of skill by which a cross-examiner succeeds in alarming, misleading, or bewildering an honest witness may be characterized as the most, or one of the most, base and depraved of all possible employments of intellectual power. Nor is it by any means the most effectual way of eliciting truth. The mode best adapted for attaining this object is, I am convinced, quite different from that by which an honest, simple-minded witness is most easily baffled and confused. I have seen the experiment tried, of subjecting a witness to such a kind of cross-examination by a practical lawyer as would have been, I am convinced, the most likely to alarm and perplex many an honest witness, without any effect in shaking the testimony; and afterwards, by a totally opposite mode of examination, such as would not have at all perplexed one who was honestly telling the truth, that same witness was drawn on, step by step, to acknowledge the utter falsity of the whole. Generally speaking, a quiet, gentle, and straightforward, though full and careful, examination, will be the most adapted to elicit truth; and the manuvres, and the browbeating, which are the most adapted to confuse an honest simple-minded witness, are just what the dishonest one is the best prepared for. The more the storm blusters, the more carefully he wraps round him the cloak which a warm sunshine will often induce him to throw off.
Richard Whately: Annot. on Bacons Essay, Of Judicature.