Forum, or, Forty years full practice at the Philadelphia bar. Vol. II

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C|e innm.
THE
EORUM
FORTY YEARS FULL PRACTICE
ilaiiflplia far,
BY
DAVID PAUL BROWN.
MiGNUa DICENDI I.ABOR—MAQNA KE3, MAQ^^TA DIGiTITAS, 3DMMA AUTEM GRATIA."—CICERO
VOL. 11.
PHILADELPHIA:
ROBERT H. SMALL, LAW BOOKSELLER,
NO. 21 SOUTH SIXTH STREET.
1856.
Entered according to Act of Congress, in the year of our Lord 1856,
BY DATID PAUL BROWN,
in the District Court, for the Eastern District of Pennsylvania.
Eobb, Pile & M'ElToy, Prs.
Lodge Street.
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uij^tnlin^ tfl ^Ie |iii}um.
Adams, John B. -
Adams, Fred. M. -
Agnew, Daniel
Alexander, Wm. -
Alleman, H. Clay -
Allibone, S. Austin
Allison, R. P.
Alricks, Hamilton
Alsop, Robert
Arundel, R. J.
x\slimead, Greo. L. -
Ashmead, J. W.
Ashurst, John
Ashurst, Richard -
Atlee, W. a.
Austin, Samuel H.
Badger, William -
Baker, D. J.
Barry, Jos. B.
Bartesdale, W. H.
Barton, John
Bayard, James
Philadelphia.
Beaver, Pa.
Philadelphia.
York, Pa.
Philadelphia.
Lebanon, Tenn.
Harrisbnrg, Pa.
Philadelphia.
New York.
Philadelphia.
a
Lancaster, Pa.
Philadelphia.
Philadelphia.
Lancaster, Pa.
Philadelphia.
Lebanon, Tenn.
Pittsburg, Pa.
Philadelphia.
u SUBSCRIBERS TO THE FORUM.
Bell, Thos. S.
Belsterling, J. F. -
Bennett, Dan. K. -
Bennett; J. B.
Benton, Stephen -
Benton, W. B.
Biddle, Craig
' « Biddle, Geo. W. -
I Binney, Horace
Binney, Horace, Jr.
Binns, John
Blair, Saml. S.
Blakeley, Archbold,
Edmond Blankman,
Bliss, J. G. -
Boone, W. F.
Bowen, R. H.
Bowman, J. F.
Boyd, Jas.
Boyer, B. M.
Breitenback, John B.
Bredin, Edmund M.
Brewster, B. H.
m Brewster, F. Carroll
Brown, J. T.
Brown, L. B.
Brown, W. W.
Buck, Jerome
Budd, Walter J. -
Buchanan, Jas. M.
Bullett & Fairthorne,
Burke, A. -
Burton, A. M.
Byi-nes, J. F.
Burton, W. D.
Cake, Isaac N.
Calhoun, J. K.
Westchester, Pa.
Philadelphia.
Pottsville, Pa.
Philadelphia.
(C
Lebanon, Tenn.
Philadelphia.
Hollidaysburg, Pa.
Butler, Pa.
New York.
Beaver, Pa.
Philadelphia.
New York.
u
Norristown, Pa.
Butler, Pa.
Philadelphia.
a
New York.
Dunkirk, N. Y.
Lancaster, Pa.
Philadelphia.
Baltimore, Md.
Philadelphia.
Pittsburg, Pa.
Philadelphia.
u
Lebanon, Tenn.
Northumberland, Pa.
Kittanuing, Pa.
SUBSCRIBERS TO THE FORUM. Ill
Caldwell, Chas. W.
Campbell, Jolin H.
Campbell, St. G-eorge Tucker
Cannon, J. N. .
Cardoza, A. -
Carter, Paul B.
Carutliers, A.
Cliadwick & "Ways,
Chain, B. E.
Chalfant, E. D. -
Chamberlin & Cutbberton,
Chapin, J. C
Clarke, J. A.
Clay, Geo. H.
Clayton, Jobn
Clayton, Thos. J.-
Clement, John K.
-
Coyle, A. C.
Collaban, J. B.
Collins, Jobn M.-
Conrad, Osborn
Conrow, Wm. G. -
Conrow, G. Norman
Cook, Archibald
Cook, W. A.
Condray, N. A.
Coxe, Brinton
Craig, T>.
Cramond, H.
Crist, J. Alfred
Gumming, B. W. -
Cummins, Alexander G.
Cunningham, Thomas
Cuyler, Theodore
Philadelphia.
Franklin, Tenn.
New York.
Philadelphia.
Lebanon, Tenn.
Westfield, N. Y.
Norristown, Pa.
Philadelphia.
New Brighton, Pa.
Ridgway, Pa.
Greensburg, Pa.
Pottsville, Pa.
Philadelphia.
Sunbury, Pa.
Philadelphia.
Norristown, Pa.
Mercer, Pa.
Greensburg, Pa.
New Haven, Conn.
Philadelphia.
Newcastle, Pa.
Philadelphia.
Pottsville, Pa.
Philadelphia.
Beaver, Pa.
Philadelphia.
Dallas, George M.
Davenport, Joshua
Davis, J. B.
Philadelphia.
Davenport, Iowa.
Norristown, Pa.
IV SUBSCRIBERS TO THE FORUM.
Davis, T. E.
Dewees, F. P.
Dietricli, N. P.
Dillingham, J. P.
Dilworth, W. T. -
Dodge, W. H.
Durnel, Henry
Donnelly, Ignatius
Dorris, Wm., Jr.
Dougherty, D.
Dougherty, George L.
Drayton, Wni. H.
Dreer, F. J.
Drew, Joseph
Dropsie, Moses A.
Duff, A. D.
Dunlevy, J. A.
Dunlap, Thomas
Dunn, James
Eastman, H. W.
Easton, D. T.
Edwards, William A.
Eldridge, G-. M. -
Elton, Emmor
Erety, George
Fallon, C. & J.
Feather, A. G.
Fillmore, Millard -
Findley, John K. -
Fish, A. J.
Fleming, D.
Fisk, A.
Fisher, John A.
Forrest, Edwin
Foster, H. D.
Fox, D. M. -
Lebanon, Tenn. .
Pottsville, Pa.
Williamsport, Pa.
Woodville, Miss.
Philadelphia.
Adel, Iowa.
Sunbury, Pa.
Philadelphia.
Huntingdon, Pa.
Philadelphia.
Media, Pa.
Philadelphia.
Benton, 111.
Pittsburg, Pa.
Philadelphia.
Elmira, N. Y.
New York.
a
Philadelphia.
Westchester, Pa.
Philadelphia.
Philadelphia.
Norristown.
Buffalo, N. Y.
Philadelphia.
u
Harrisburg, Pa.
Sparta, Tenn.
Harrisburg, Pa.
Philadelphia.
Greensburgh, Pa.
Philadelphia.
SUBSCRIBERS TO THE FORUM.
Fox, Gr. Eodman Norristown, Pa.
Flanigan, F. C. Pittsburg, Pa.
Franklin, J. S. a
Franklin, Thomas A. Lancaster, Pa.
Frazier, N., Jr. Philadelphia.
Freedley, Henry Norristown, Pa.
Freeman, diaries D. Philadelphia.
Futhey, J. Smith Westchester, Pa.
Galbraith, John Erie, Pa.
Gauze, L. E. Darkanaville, Tenn,
Garten, Charles H. Norristown, Pa.
Gerard, James W. New York.
Gest, J. B. . . Philadelphia.
Gibbons, Charles ii
Gibson, James a
Gilpin, Charles (C
Gobrecht, Charles G. ((
Goepp, C. . . .
({
Golden, E. L. Kittanning, Pa.
Golliday, C. J. - Lebanon, Tenn,
Gowan, A. C. Philadelphia.
Graeff, James H.- Pottsville, Pa.
Graham, John Butler, Pa.
Green, A. . . . New York.
Greenfield, W. F. - Pine Blufi", Ark.
Griscom, George - Philadelphia.
Grout, H. T. = = "
Guillou, C. - . ,
((
Gutman, Joseph, Jr. (I
Hagert, H. S. Philadelphia,
Hamilton, P. - - Mobile, Ala.
Hall, A. Oakley - New York.
Hancock, B. F. - Norristown, Pa.
Hanna, John Philadelphia.
Harlan Charles u
Harrington & Goodman, ((
VI SUBSCRIBERS TO THE FORUM.
Harrison, G. L.
Hasbrouck, C.
Hasnell, J. Gr.
Hazen, D. H.
Hazlehurst, Isaac -
Begins, C. W.
Hepburn, H.
Heyer, Frederick -
Eeysham, Edward
Hirst, William L.
Hobart, J. H.
Hopper, Edward -
Hood, Samuel
Hood, William B.
Howard, Jobn K. -
Hughes, Theodore J.
Husbands, C. M. -
Husband, W. A. -
Hutchins, Mason F.
Philadelphia.
u
Hardensburg, Ky.
Pittsburg, Pa.
Philadelphia.
Pottsville, Pa.
Pittsburg, Pa.
Philadelphia.
Norristown.
Philadelphia.
Lebanon, Tenn.
Pottsville, Pa.
Philadelphia.
Imbrie, De Lorma -
Ingersoll, Charles -
Ingersoll, Edward -
Ingersoll, Joseph R.
Jacoby, W. -
Janney, John
Jenks, Gr. A.
Jennings, H. L.
Jermon, J. Wagner,
Johnston, J. F.
Johnson, Reverdy -
Jolly, Wm. H. -
Jones, Charles
Jones, E. P.
Jones, Horatio Gr. -
Jones, Joshua
Jordan, A.-
Beaver, Pa.
Philadelphia.
Norristown, Pa.
Leesburg, Va.
Philadelphia.
Chicago, 111.
Philadelphia.
Baltimore.
Altoona, Pa.
New York.
Pittsburg, Pa.
Philadelphia.
Norristown.
Sunbury, Pa,
SUBSCRIBERS TO THE FORUM. vu
Junkin, George, Jr.
Juvenal, W. W. -
Kagay, B. F.
Keene, H. E.
Kelly, William D.
Keim, G. De B. -
Kirkpatrick, J. M.
Kissam, B. T.
Kneass, Horn R. -
Knox, Thomas P. -
Kreider, Frederick C
Kutz, Charles A. -
Latimer, Thomas -
Law, Edward E. -
Lee, Robert M. -
Lehman, William E.
Lentz, Edward A.
Lewis, Elisha J. -
Lewis, Joseph J. -
Lewis, William D.
Lex, Charles E.
Livingston, John -
Loeser, Christopher,
# Logan, Jos. M.
Logan, Robert M. -
Longaker, A. B. -
Longaker, Henry, -
Longstreth, J. Cooke
Look, George H. -
Longhead, Joseph P.
Lowery, J. H.
Lloyd, Clinton
McAllister, W. G. -
M'Call, Peter
M^Calmont, A. B. -
Philadelphia.
Ewington, 111.
Philadelphia.
a
Pottsville, Pa.
Pittsburg, Pa.
New York.
Philadelphia.
Norristown, Pa.
Philadelphia.
Milton, Pa.
Philadelphia.
Westchester.
Philadelphia.
u
New York.
Pottsville, Pa.
Blountville, Tenn.
Philadelphia.
Norristown, Pa.
u a
u "
Greensburg, Ind.
Philadelphia.
Elkton, Ky.
Williamsport, Pa.
Philadelphia.
Pittsburg, Pa.
VUl
SUBSCRIBERS TO THE FORUM.
M'Clure, A.
M'Ckire, H.
M'Crea, Jolin
M'Elroy, George N.
M'Elroy, William J.
M'Fiery, J. F.
M'Guffin, L. L. and J. N.
M'Intyre, John
M'Mullen, N. G. -
~ M'Nair, Jolm
Mackey, Cliarles C.
Maclean, Jolin
Magaw, Samuel
Mann, A. Jr.
Marcer, J. F.
Markland, J. G. -
Markland, J. H. -
^ Marshall, W. L. -
Martin, A. B.
Moran, P. A.
. Maurice, W. H. -
Maxwell, W.
Mench, Ed. A.
. Meredith, Wm. M.
Michener, J. G. -
Miller, Andrew
Millette, J. G.
Mitcheson, M. J. -
Montgomery, J. P.
Morris, Dewitt C.-
Morris, D. S.
Morris & Martin -
Morris, P. Pemberton -
Morse, N. B.
Mulvany, D. H. -
Myers, Leonard
New York.
Williamsport, Pa.
Philadelphia.
Lancaster, Pa.
Philadelphia.
Lebanon, Tenn.
Newcastle, Pa.
Phila^delphia.
u
Norristown, Pa.
Philadelphia.
Princeton, N. J.
New Brighton, Pa.
New York.
Philadelphia.
Lebanon, Tenn.
Mercer, Pa.
Philadelphia.
Mercer, Pa.
Philadelphia.
Newcastle, Pa.
Philadelphia.
u
New York.
Norristown, Pa.
Philadelphia.
Neal, Chas. M. Philadelphia.
SUBSCRIBERS TO THE FORUM.
jSTewcombe, Bayse
Nichols, E. H.
Norris, Isaac
JSTorris, S. H.
North, Theodore
Northrop, George
Nott, Chas. C.
O'Brien, John
Orbison, W. P.
O'Connor, Chas.
O'Neill, Chas.
O'Neill, J. P.
Otterson, Jas. Jr.
Philadelphia.
New York.
Philadelphia.
Elmira, N. Y.
Philadelphia.
New York.
Philadelphia.
Huntingdon, Pa.
New York.
Philadelphia.
Parker, C. A.
Parker, A. H.
Page, James
Parsons, A. V.
Patterson, W. H.
Paxon, Ed. M.
Peale, S. R.
Pearson, Johnson
Penrose, Chas. B.
Perkins, S. H.
Perrine, W. B.
Pert, S. B. -
Phillips, J. A.
Phillips, Jonas B.
Picketts, B. B.
Pierce, Wm. S.
Pollock, Robert
Potter, C. N.
Potts, Howard N.
Price, Eli K.
Price, Wm. S.
Grouverneur, N. Y,
Media, Pa.
Philadelphia.
Elmira, N. Y.
Philadelphia.
Lock Haven, Pa.
Mercer, Pa.
Philadelphia.
Baltimore, Md.
New York.
Philadelphia.
New York.
Newcastle, Pa.
Philadelphia.
Pittsburg, Pa.
New York.
Philadelphia.
Quay, M. S. - Beaver, Pa.
•. SUBSCRIBERS TO THE FORUM.
Quiggle, J. W. - - - PliiladelpHa.
Rains, J. B. -
Randall, Josiah
Rankin, W. B.
Reed, Wm. B.
Remak, Gustavtis -
Remick, "William -
Ricliards, James H.
Rielimond, H. L. -
Richmond, A. B. -
Risler, W. T.
Roberts, R. P.
Robinson J. H.
Rose, W. G.
Rowand, J. R.
Ronckamp, F. H. -
Rush, Benjamin
Rush, J. Miu-ray -
Scott, L. A. -
Scott, R. M. -
Scott, W. H.
Scovel, James M. -
Sergeant, Thomas -
Sergeant, William -
Seymore, Edmond B.
ShaeflFer, Bartram A.
Shea, G-eorge
Sherman, Samuel -
Shippen, Edward -
Shippen, William, Jr.
Shoener, John T.
Sinnall, H. F.
Skaats, B.
Smith, A. H.
Smith, E. L.
Smith, J. B.
London, Ala.
Philadelphia.
Pottsville, Pa.
Meadville, Pa.
u
Philadelphia.
Beaver, Pa.
Mercer, Pa.
a
Philadelphia.
Cincinnati, 0.
Philadelphia.
Philadelphia.
Louisiana.
New York.
Camden, N. J.
Philadelphia.
u
Evansville, Ind.
Lancaster, Pa.
New York.
u
Philadelphia.
u
Pottsville, Pa.
Woodville, Miss.
New York.
Lancaster, Pa.
Reading, Pa.
New York.
SUBSCRIBERS TO THE FORUM. XI
Smith, James M. -
Smith, James S.
Smith, William
Smyser, D. M.
Sommers, J. B. Y.
Sparks, Thomas
Spencer, J. A.
Spencer, Joshua
Sproat, H. L.
Stanard, John
Stanton, S. S.
Stevens, H. A • -
Stevens, Simon
Stevens, Thaddeus
Stewart, A. M.
Stewart, R. T.
Stewart, T. M.
Stewart, William
Stokes, J. W.
Stowe, E. H.
Stout, A. G-.
Stover, Lewis
Strong, N.
Stroud, G-eorge M. •
Strouse, Meyer
Sulger, Isaac
Sutherland, Joel B.
Swift, John
Tarr, A. De Kalb
Taylor, D. B.
Taylor, Robert
Tellow, F. R.
Thayer, M. Russell
Thompson, Aaron
Thompson, H.
Thompson, James
Thompson, R. E.
New York.
Philadelphia.
u
Norristown, Pa.
New York.
Philadelphia.
Utica, N. Y.
Philadelphia.
Pittsburg, Pa.
Gainsborough, Tenn.
Philadelphia.
Lancaster, Pa.
Philadelphia.
Norristown, Pa.
Philadelphia.
Mercer, Pa.
Philadelphia.
Pittsburg, Pa.
Philadelphia.
Pottsville, Pa.
Philadelphia.
Philadelphia.
New York.
Mercer, Pa.
New York.
Philadelphia.
a
New York.
Erie, Pa.
Lebanon, Tenn.
Xll SUBSCRIBERS TO THE FORUM.
Thome, George W. Philadelphia.
TituSj Jolin
a
Townsend, J. B.
a
Townshend, H. C -
li
Townshend, John New York.
Trunkey, John Mercer, Pa.
Tyler, John, Jr. Philadelphia.
Underhill, R. New York.
Underwood, J. M. - Greensburgh, Pa.
Vanderveer, John M. Philadelphia.
Vandyke, J. C a
Vansant, S. T. "
Vaux, Richard a
Vicks, Alexander, W. Lebanon, Tenn.
Walden, D. Y. - - New York.
Wallace, J., William Philadelphia.
Wallace, J., Wilson a
Webb, J. L. - Somerville, Tenn.
Welsh, M. B. - - Beaver, Pa.
Wetherell, Samuel - Philadelphia.
Wharton, Gleorge M. a
Wharton, Thomas I.
It
Wheeler, Charles cc
White, G-eorge Williamsport, Pa.
Whitesell, J. - - - Pittsburg, Pa,
Williams, Henry J. Philadelphia.
Williams, Thomas Pittsburg, Pa.
Wilson, A. P. - - Huntingdon, Pa.
Wilson, Alexander - Philadelphia.
Wilson, Samuel B. - Beaver, Pa.
Wollaston, Greorge W. Philadelphia.
Woodhull, Geo. S. - May's Landing, N,
Woodward, G. W. - Philadelphia.
Wyckoff, Peter a
Zane, A. V. - Philadelphia.
Zimmerman, Seth Mohrsville, Pa.
^aliU nf ©flutriits.
CHAPTER I., 25
FoRE^"SIC ETHICS AND ETIQUETTE—Their importance to success at the bar
Nothing without them—Oath ofstudent upon admission—Construction
All good "fidelity to court and client"—Its interpretation—"Delay no
man's cause for love or malice," embraces both parties—Oaths make bad
men worse—But rarely better—Best system ofethics derived from Divine
authority, "Do unto others as you would be done by," &c.—Explained
—
Lord Brougham's notion of the duties of counsel in Queen's case—Not to
be approved—Lord Erskine's—Sir Matthew Hale's—Chief Justice Gib-son's—
A lawyer not responsible for motives of client—But for his own—
Illustration—Not bound to take a case—Bound to refuse it, if unjust
Or to abandon it when he ascertains it to be so—Mingle kindness with
performance of duty—Not to treat all cases alike, but according to
desert—Right to take advantage of his power to support a good cause
—But not to sustain a corrupt one—In matters of doubt may incline to
his client—He can't decide a case—Nor is he answerable for its decision
—Not to contribute to gratify the malignity of a party—Instance—He
is no man's man—Bound to discourage vexatious suits—Not to be
judged by results of cases—Good cases may be lost and bad cases
succeed—^When assured that a case is honest, fight it through.—Case
of Commonwealth v. Von Vleit—Conviction—New trial—Acquittal
Case of Casuistry (ejectment)—Its discussion—Different opinions in re-gard
to it—Criminal cases—Difference between them and civil—Guilt,
VOL. II.—
2
Xlv
CONTEXTS.
according to law—Judicial cruelty—Public prosecutions left to public
officer—Private counsel should never take "blood money"—Cicero's
opinion—Obligations of counsel for defendant in capital felonies
Counsel are rarely able to determine upon guilt of party—Have no
rio-ht to do so—Young lawyer's notion rebuked—Dr. Johnson's opinion
Rawle's opinion—Judge Sharswood's—Sir William Grant's—A lawyer
cannot abandon a cause because it is hopeless—He often knows of a
defence which he is unable to exhiljit by testimony—Instances—Course
to be pursued on trial—Queen v. Courvoisier, for murder of Lord Rus-sell
—Charge against Charles Phillips—Condemned—Case of Adam
H n—Dr. Webster—Counsel depositary of client's secrets—Sigillum
confessionis less sacred—Sometimes carried too far—Knowledge de-rived
from client to be used for his benefit—Danger of being concerned
for adversaries, even in different cases
—
Etiquette—Its original signifi-cation—
Modification by time—Present use—Manners sometimes morals
—Reverencef07' age—Young cannot prosper without it—Forwardness
—Vulgarity—Estimate among Greeks and Romans—Old age a " crown
of glory"—Athenians and Lacedemonians—Due from court as well as
bar—Mr. N.'s Rebuke—Young America will become olt America
Bench and bar comparative characters—How they should be considered
—Talent, added to age, increases obligations and respect
—
Dress—Not
essential, but respectful towards others—Philadelphia lawyer (note)
Mr. Dunning—Difference between a martinet and a soldier—A dandy,
and a gentleman—Wigs and gowns laid aside—Necessary to be re-sumed
—
Deportment towards court—Appropriate apparel—Overcoats a
disgrace—Court avoid these errors
—
Address—Standing up talking
—
Lounging—Dozing—Sobriety of the bar—Freedom from antipathies
Temper—Of court and counsel—Mutual indulgence—Their troubles
and annoyances—Petulancy to be avoided—Composure preserved
Equality and self-possession great qualities
—
Business intercourse—
Kindness to your juniors—Respect for seniors—Courtesy to all—
(valuable note)—Etiquette of the office—System—Mind works bestwhen
heart at ease—Accumulation of papers—Cleanliness—Neatness
Punctuality—who wants thatj^anis, everything—Keep appointments
Taking grace—Want of punctuality destructive of business
—
Clients—
Consultation—Mode of receiving—Entitled to patient hearing
—
Profes-sional
correspondence—Importance—Letters to be answered forth-with—
Inconvenience and danger of omitting to answer Neatness of
writing—Lord Nelson—General courtesy—Anecdote—Students—Re-quire
more than books—Advice as to deportment—Deliver letters at
once—Aaron Burr—Napoleon (note)
—
Additional re7narks upon court
and counsel—Private interviews—Ex parte statements wrong—Unfaith-ful
to court—Washington and Tilghman—Counsel bound to support
CONTENTS. -jj-y
the court In its proper province—Duty of court—Rights of jury—Ver-dict—
Independence of bar—Brskine—Statute of Limitations plea
Contingent fees—Suits for fees discussed—lUustrative case—Mooney
and Lloyd overruled—Cases cited.
CHAPTER II., 76
Henry Baldwin, l.l.d.—Succeeds to Judge Washington—Appointed by
Jackson—would have been Secretary of the Treasury, if it had not been
for his views of the tariff—Samuel D. Ingham Secretary—Birth
Graduates at Yale—Reads law with A. J. Dallas—Admitted to practice,
1798—^Removes to Pittsburg—Extensive business—Talents and learn-ing—
Congress—Fidelity to duties—Departure from forms adopted by
Washington—Reception at Trenton—Judicial manners not equal to
his predecessors—no reproach—Amiability of temper and kindness of
feeling—Speculations—Effect upon Ms health—As an advocate—Ser-geant's
opinion of him—Death—Highly appreciated character—De-scription
of his person and manners—Great man with great men—hum-blest
with the humble—Benefit of his difficulties—Rough school—Poor
—Rich and poor—Overcomes his indolence by perseverance—Smoking
injurious, particularly to a judge—His sensibility and desire of appro-bation—
Health impaired—Mind shattered—Difficulty with the Re-porter
of Decisions of the Supreme Court of the United States—Shak-speare—
Letter to Chief Justice Marshall—Offensive motion for a new
trial—Kindness and generosity of the Judge in relation to it—Judicial
companionship with Judge Hopkinson—Description of Judge Hopkin-son—
Death, 15th January, 1832—Mind—Oratory—Great advocate
—
Not so great as a lawyer—Remarkable for repartee, not superior in
this respect to Sampson Levy—Exordium to his speech upon the im-peachment
of Judge Chase—Judge Baldwin died 21st of April, 1844
—Harmony with Hopkinson—Although but little mental resemblance
—Dr. Johnson's doctrine—Both eminent lawyers—Comparison—Ad-vocacy
of Hopkinson—Succeeded by Judge Randall—Notice of Judge
Randall—A Judge of Common Pleas—In 1842 appointed Judge of
the District Court of the United States—Excellent qualities as a judge
—Heavy responsibilities after the death of Judge Baldwin—His death.
CHAPTER III., 91
Robert Cooper Grier, l.l.d.—Introduction—Delicate task of speaking
of the living—Their destiny not yet accomplished—Yet a public life
should be subject to public scrutiny.—To speak justly of the living due
to posterity—Oblivion the worst reproach—No eulogy but history
;^yi CONTENTS.
Should neither praise without merit, nor condemn without cause
Faults in every profession—A Judas among the Disciples—Judge
Grier's birth—Parentage—Residence—His education—Good Latin and
Greek scholar—Enters Dickinson College half advanced—His aptitude
in the classics—Attention to Chemistry—Graduates in 1812—Returns
to his father to assist him—His father dies in 1815—Young Grier takes
his place as principal of the College—Faithful to all his duties—Com-mences
the study of law at Sunbury—Practises at Bloomsbury, Colum-bia
County—Moves to Danville—Practice increases—Appointed Judge
• of District Court of Allegheny—4th of May, 1846, appointed Justice of
the Supreme Court of the United States—^Removes to Philadelphia
Position on the bench—Judge Kane the District Judge—John Kintzing
Kane—A graduate of Yale—admitted to practice in 1817—Attorney
General of Pennsylvania—Appointed in place of Judge Randall to the
District Court—Character of Judge Kane—Amiable and pains-taking
Judge—Cannot please everybody—But performs his duty—His age
—
Personal appearance—Early promise—High honor—And unstained
fidelity—Return to Judge Grier—His age and vigor—Kindness of
heart—not equal to Washington, though of more general knowledge
Personal appearance and manners—Less favorable to slavery than
Baldwin, though not less observant of his duty.
CHAPTER IV., 102
Jeremiah S. Black, l.l.d.—Law undqr which elected—Judge Black
becomes Chief Justice—Terms chosen by other judges—Born in So-merset
county, 1810—Good education—Devoted to English literature
Books wanted—Fondness for Shakspeare—Better poet than farmer
Becomes a student in the office of Chauncey Forward—Admitted in
1831—Large business through his own industry and his father's influ-ence—
Appointed in 1842 Judge of Common Pleas—Extensive cir-cuit—
Continued until 1851, when elected to Supreme Court, and be-comes
Chief Justice—Deportment in banc and at Nisi Prius—His
opinions—Style of his composition—Where did he obtain it—Read
much—His alacrity in discharge of his official duties—Directness of
his opinions—Description of his person—Judicial courage and impar-tiality—
Quick, but not hasty—No commonplace man—His eulogy
upon Chief Justice Gibson—Memoir of General Jackson—Extracts
from both.
CHAPTER v., . . ... . . . . .118
Ellis Lewis, l.l.d.—Present Chief Justice—Born in Lewisburg—Age
CONTEXTS. Xvii
—Ancestors—Brothers—Loses his parents at nine years of age
—
Enters a printing-office—Goes to New York—Returns to Lewisburg
Studies medicine—Goes to Baltimore to resume his business as a prin-ter—
Does not succeed—Betakes himself to Williamsport—Studies law
in 1820—Admitted in 1822, and marries—In 1823 becomes Deputy
Attorney General—Faithful to his duties—Labors under distressing
diseases—Carried to York—^Restored to health—Removes to Bradford
—Lucrative business—Enters the political arena—Sent to State Con-vention—
Elected to legislature—Appointed Attorney General—1833
resigns, having been appointed Judge of Common Pleas—Continues in
that office twelve years—Appointed to Second Judicial District, (City of
Lancaster)—Professor of Law and Medical Jurisprudence in Franklin
College—Conducts a law journal—Amusing anecdote of a reversal
of the judgment of a Lynch Court—Case of Commonwealth v. Arm-strong—
Parental authority—Judge Lems's able opinion—Approval
and commendation by Chancellor Kent—Judge Grier—Dr. Wayland
—
Judge Lewis receives the degree of Doctor of Laws—1851, elected to
Supreme Court, and succeeds to Black, as Chief Justice—His un-equalled
industry and undoubted competency—The diversity of his
attainments—Personal description—Humane Judge—Indulgent to xhe
young—Courteous and impartial.
CHAPTER VL, .......... 134
Justices of supreme court—Justice Woodward—Judicial qualities
Learning—Morality and manners—Judges have hard time—Can't please
everybody—Judges have duties as well as counsel, and are not unduly to
be complained of—Judge Woodward's birth—Parentage and training
—Studies law with Judge MaUary—Admitted to practice—Upon Mal-lary's
appointment, business transferred to Woodward—His industry,
fidelity, and ability—Rapid advancement—Health fails—Becomes
president of Fourth Judicial District—Term of office expires in 1851—
Declines reelection—Declines a nomination, on State ticket, for Supreme
Court—^Returns to practice—Upon death of Judge Coulter, in 1852,
appointed by Executive in his place—Afterwards elected for fifteen years
—Age and personal appearance—Deportment on the bench—His
charges and opinions—Resemblance to Judge Gibson in person, not in
mind—Mental differences—Member of the convention—Speech on judi-cial
tenure.
Justice Knox—Birth—Family—Education—Admitted to the bar, in
1839—Appointed Deputy Attorney General, in 1840, for Tioga—Con-tinues
three years-Elected to the legislature—Popularity—Receives all
the democratic votes for speaker—Appointed, in 1848, Judge of Tenth
Xviii CONTENTS.
Judicial District—Under the elective system, in 1851, chosen President-
Judge of Eighteenth Judicial District—May, 1853, appointed provision-ally
to fill the vacancy occasioned by death of Judge Gibson, on bench of
Supreme Court—October of same year, elected to fiU same post for fif-teen
years—Industry and character of his judicial services—His man-ners—
Temper—Person.
Justice Lowrt—His punctuality—His reading—Well-posted in cases
Civil code—A conscientious, and decorous judge—Not well adapted
to Nisi Prius—Patient, but premature—Justice not to be sacri-ficed
to time—The counsel and jury to be considered, as well as the
court—Hasty opinions pernicious, and sometimes incurable—Judge
Lowry a great favorite in banc, but not at Nisi Prius—Throws his im-pressions
o^facts too much into the jury-box—Contrary to the policy of
jury trials—On 1st of January, 1851, he became, by election, a judge
of Supreme Court—Excellent qualifications for that post—To which he
was transferred from the judgeship of the District Court of Allegheny,
where he had succeeded to Judge Grier—His urbanity of manner, and
purity of intention—His age—Size—Features, &c.—His inflexible firm-ness—
A very good, or a very bad, quality—Better, at all events, than a
JUDICIAL weathercock:—General remarks on the court—Its terms and
its prospects.
CHAPTER VII., 151
District court for city and county of Philadelphia—Most efficient
court in the State—Sits ten months in a year—Organized in 1811
—
Its incumbents, powers and jurisdiction—Terms—Judges—Eemodeled
in 1835—Early judges—Present constitution.
George Sharswood, l.l.d. (President)—Birth—Graduated with high
honors—Becomes a student of law with J. R. IngersoU—Admitted to
practice—His studies after admission—His indefatigable labor—
A
model for a student—Thoughtful, cheerful, modest—^Would not have
been an effective jury lawyer
—
hut unequalled in an argument in bane
—Elected to legislature—To select council—Again elected to legisla-ture—
Received, in 1845, appointment of judge of District Court—1848,
becomes President—In 1851 elected President of the court—Abundant
capacity—Chosen Professor of Law in University of Pennsylvania
Lectures before Commercial Institute—Patience, industry, and energy —Personal description—But one defect in judicial manner—Excellent
mode of charging a jury—Great clearness, precision, simplicity, and
impartiality.
George M'Dowell Stroud, l.l.d.—Competency, rectitude and industry —Appointed judge in 1835—The only objection in the earlier part of
C N T E x\ T S. ^^^
his career, was too great strictness and rapidity—previously unusual,
. and never surpassed—Reason for this—Its advantages at the time-
After ten years, returns to the bar—Continues nearly three years
—
Again appointed judge—Dec, 1851, elected for ten years—Calendar
or list diminished by industry of the court—Held in high considera-tion—
Their equality—Courtesy—Judge Stroud of a Quaker stock-
Born in Stroudsburg, 1793—Educated at Princeton College—Graduated
with honor—Became a student of law with Judge Hallowell—Ad-mitted,
and commences practice under most favorable auspices—Mar-ries
the daughter of his preceptor—Judge Hallowell's business and
influence passes to his son-in-law—Had Mr. Stroud declined ofBce, he
would have ranked with the ablest members of the bar—He was well-founded
in legal principles—Familiar with cases—Excellent and prompt
memory, and great quickness of apprehension—His temper—His
generosity—His active charity—His age and personal appearance—
His various publications.
J. I. Clark Hare, l.l.d.—With few exceptions, the youngest judge in
Pennsylvania—His ancestry—Birth—Graduates at Pennsylvania Uni-versity—
Studies law with William M. Meredith, (an able lawyer,) and
admitted to practice in 1841—(Vide note)—His improvement of time —Influence of his excellent manners—His law publications—Married
a daughter of Mr. Binney—In October, 1851, nominated for judge-
Elected by a large majority—A judge for ten years, from. December,
1851—He would have been a successful advocate—His social and judi-cial
deportment—His person described—His advantages on the bench —An accomplished gentleman and a good judge.
CHAPTER VIII., 169
The judges of the court of common pleas—The first judge, Benja-min
Chew—Succeeded by John Coxe—Upon his resignation, Jacob
Rush appointed—Judge Rush a graduate of Princeton—A man of
' ability, and great firmness and decision of character—Eloquent—Ex-amples—
Charges to jury, upon moral and religious subjects—Died in
1820—Succeeded by John Hallowell—Judge Hallowell an eminent
lawyer—very satisfactory to the bar—Not a man of much industry
His situation rather irksome—In April, 1825, transferred to District
Court, to make room for Edward King in the Common Pleas—The
machinery by which this exchange was brought about—Judge King's
appointment not generally satisfactory at first—He proved an admi-rable
judge—Equal to any in civil matters, and superior in criminal
cases—^His charges—Want of firmness—Of gravity—Impaired judicial
influence—His manners—His improvement—His high judicial repu-
X;x CONTENTS.
tation when superseded—His early education—His industry—His abili-ties
overcame his faults.
Judge Randall, (one of the Associates,) afterwards transferred to Dis-trict
Court of United States—Modest deportment—A great favorite
—
Always equal to his duty—Never one jot above it—Education limited
—Good sense abundant—The just medium—Succeeded by James
Campbell, present Post-Master-General of the United States.
J. RicHTER Jones—Another Associate—Conscientious—Superior to Ran-dall
in literary, but not scientific knowledge—Not deficient in decision
—Or in industry or integrity—In year 1851, judges became elective
—Judge Parsons had resigned—Judge King and Campbell were
dropped, and Oswald Thompson, William D. Kelly, and Joseph Alli-son
were elected, and now form the court—General remarks upon the
courts under the amended constitution.
Oswald Thompson, l.l.d.—A judicious choice—His age—Place of birth
—Personal appearance—Graduated at Princeton—Studied law under J.
R. Ingersoll, and was admitted to practice in 1832—Commissioned
President Judge of First Judicial District, in 1851—A well-read lawyer
—Never enjoyed a large practice—His impartiality on the bench
Courtesy—Mildness and gentleness—Done much by his deportment to
reconcile the public to an elective judiciary—His obstinacy or firmness
—Founded in conscientiousness.
William D. Kelly—Born in Northern Liberties—Read law with James
Page—Admitted to practice lYth of April, 1841—Deputy Attorney
General in connection with F. I. Wharton—Associate Judge of the
Common Pleas, in 1847, and afterwards elected, in 1851, by a large
majority, to the same judicial post, under the new constitution—Early
education limited—Fine natural parts—Energy and ambition—Placed
in early life at a mechanical trade—Proud of it—Its advantages—An
eloquent speaker—A philanthropist—Held in great favor—Present
fidelity but evidence of future elevation.
Joseph Allison—The youngest judge in Pennsylvania—Birth and pa-rentage—
Studies law—Admitted in 1843—Energy and perseverance
Modesty—His early promise at the bar and success in business—Un-stained
morality—and kind heart—Great industry—Will make a dis-tinguished
judge—Personal description—Commendable patience—De-votion
to judicial duty.
CHAPTER IX., 192
Present relations of courts and counsel—Honest bar and bench
found together—Their mutual dependence discussed—Courtesy of bar
towards bench—Few instances to the contrary—Subserviency secures
CONTENTS. Xxi
favors—The court does not depend upon the bar—But the bar benefited
by the court—Ambition for court favor—Judge Washington pro-nounced
the Philadelphia bar, " the model bar of the United States"
—
Tendency of the courts lately against the advancement and interest of
the profession, especially the younger members—Rules of court touching
this subject, and their effects—Bad in civil cases—Worse in criminal
cases—Of recent introduction—Its origin—Limitation of counsel
Limitation of speech, and time—Remarks from " Legal Intelligencer"
—Cases exhibiting the severity and consequence of such rules, in the
Nisi Prius—And Oyer and Terminer—Want of mutual respect and libe-rality
between court and bar, produces mutual injury, besides affecting
the community—Liberality between members of the bar should be pro-moted
by the judges—Mr. H. J. Williams' application to release an
antagonist from a nonsuit—Judicial views on the subject—Exception
to those views, and the grounds thereof.
CHAPTER X., 205
JoHK Sergeant, l.l.d.—New era, in 1810 —Embracing members of
bar admitted between 1790 and 1800, inclusive—The names of the pro-minent
counsel—Their prospects and progress—(Vide note, relating to
James Gibson and Anthony Morris, the only survivors of those admit-ted
before the year 1792)—Mr. Sergeant—Early character, drawn by
Mr. Binney—Parentage—Enters college—Graduates—Becomes a stu-dent
in the office of Jared IngersoU—admitted, in 1799, under good
auspices-—Died at the age of seventy-three—Forty years in large and
lucrative practice—merited all confidence—His learning and piety
—
Died in November, 1852—Unsuspecting character—Frankness—Broke
down in his last speech at Washington, being over the age of seventy-
Horace Binney—The last lone star, speaks of the mental powers of
Mr. Sergeant—Description of Mr, Sergeant's person—Reference (in
note) to his portrait—His power with a jury—His high character-
Good general scholar—Devoted to legal and political science—His want
of memory for poetry—His nervousness in commencing his speeches,
in which he resembled Cicero, Fox, Townsend, and Burke—His great
success—Warmth of heart—Great system and propriety—Youthful
aspirants at the bar—Confidence in a first speech, no indication of suc-cess—
Mr. Sergeant—Magnanimity in regard to Schuylkill Navigation
Company—He was the pride of the bar, and his great charms were his
frankness, simplicity, and warmth of feeling.
Xxii CONTENTS.
CHAPTEE XL, ... - 219
Forensic medicine, or medical jurisprudence—its importance to
LAWYERS AND DOCTORS—The three great sciences—their designs
—
Theology—Medicine—and Law—The necessities for a knowledge of
Forensic Medicine—Disciples of one science should have a knowledge
of their sister sciences—ignorance of lawyers on subjects of medical
science—The greater ignorance of Metaphysics—In France and Italy,
the knowledge of Forensic Medicine required in order to admission
to practice—Doctors know less of the law than lawyers know of medi-cine—
Doctors as witnesses—Their duties—Their unwillingness to con-fess
want of knowledge—Frost's case—The case of suicide—Answer of
Doctor Gibson—Description of suicide by Shakspeare—The objects of
medical jurisprudence—The folly of the doctrine that a knowledge of
one science is incompatible with that of another—Doctor Rush and his
opinions—Physicians, as witnesses, should be very cautious in their
opinions affecting human life—So chemists in regard to poisons and
their tests, in testifying, should be as explicit as possible, and avoid
all unnecessary technical terms—Cases of poison referred to—New-fangled
systems, or experiments, require the tests of time and ex-perience.
CHAPTER XIL, 242
Good fellowship of the bar—Liberality and Harmony of the body
of the profession—no irreconcilable difference for half a century
more than can be said of other bodies of literary and scientific men
Medical faculty the reverse—Their differences proverbial—Rarely shake
hands—The cause of this and of the superior amicable relations of the
bar—Doctors of divinity—Advantage of intercourse with society—
A
difference between worldly men and worldly ministers—Worldly men
do not know the world—Clergymen mingle, like doctors of medicine,
too little in society—Too much reserve—Acerbity not necessary to
their divine office—Not the lesson taught by their great Exemplar
Cause of the good fellowship of the bar—Brought into amicable relations
by their clients—The true interests of the bar adverse to professional
feuds—Excitement in debate—Mutual forbearance—The battle is lost
and won, and all differences forgotten or forgiven—Zeal in argument
does not indicate anger, but is rather a safety-valve to pent-up feeling
—
Lawyers rarely lose their self-command—An irritable man will never
prosper, and renders himself more unhappy than he does others—
shrewd adversary can destroy him—He is shunned by his brethren and
loses his clients—mutual confidence of the bar.
CONTENTS. Xxiii
GHAPTER XIII,, - 251
English and American practice.—Introduction—Passing notice of Ro-man
law and advocates—Athens—England—Division of the profession
into Attorneys, Special Pleaders, Barristers and Sergeants—In the
United States these different departments are combined—Barristers
here not dependent upon attorneys—No division of labor—Difference
between the lawyers and orators of Rome, and the attorneys and counsel
of England and the lawyers of the United States—The labours and ad-vantages
of the American system—Objections to the English practice —Queen v. Strange—Disadvantage of special pleading—Dilatory pleas
lately discouraged in England—Extract from an essay on the Eng-lish
bar, taken from Blackwood's Magazine—Valuable suggestions as
to the necessary qualifications of a lawyer—Education too much ne-glected—
Admission too easy—Injurious to the character of the bar and
to the community.
CHAPTER XIV., 267
Ornamenta bationalia, or germs and gems of genius—Taken from
the Diary of the author of the Forum—Original and selected.
CHAPTER XV., 333
Anecdotes and wit of the bench and bar.
CHAPTER XVI., 405
Romance of the forum, or, facts against fiction—The suicide
—
Case of Lucretia Chapman—Love, jealousy, and murder—Murder and
magnanimity—Supposed mutual murder—Infanticide—Case of Dr.
Eldridge ; forgery—Perils of infidelity—Trial of John Windsor for mur-der—
Insanity—Reason and method in madness—The craft of insanitv —Walking on the water—Double insanity—Von Vleit's case—Julia
Macbeth—Princess Carraboo—The United States v. , before
Judge Kane—Case of Commonwealth v. Russell—Defeating a rogue
George G- .—Case of conscience—Case of Felix Murray—Question
of personal identity—Remarks.
CHAPTER XVIL, . . . : 515
Literature of the bar.
CONCLUSION, 519
THE FORU
CHAPTER I.
FORENSIC ETHICS AND ETIQUETTE. '"•''
We opened our first volume with an Essay upon
Forensic Eloquence. We now introduce the second,
with what are quite as essential to honorable eleva-tion
at the Bar—Ethics and Etiquette. Eloquence may
enable us to obtain practice, but Ethics and Etiquette
can alone render it secure and permanent. Good
morals and good manners would seem to belong to
each otherJ and we therefore take leave to unite them.
Without these, the golden round of professional fame
can never be attained—indeed, nothuig can be accom-plished
:
—
" Every grace that marks the orator,
The force of rhetoric and flowers of speech
VOL. II.—
3
2Q THE FORUM.
That Athens practised, or Minerva taught,
Thongh all were summoned to j^erform the task,
Would all be bafBed in the weak attempt."
In entering upon the practice of tlie law, the candi-date,
while assuming what the Romans called the to^a
virilis, takes an oath, " To support the Constitution of the
United States and of the State, wherein he is admitted
—to behave himself in the office of an attorney, accord-ing
to the best of his knowledge and ability, and with
all good fidelity, as well to the Court as to the client—
to use no falsehood, nor delay any person's cause for
lucre or malice."
Properly understood, he is not only bound not to
delay his dienfs cause for lucre or malice, but not to
delay /or his client, the cause of his adversary, unless
where it is believed to be necessary, for the purpose
of doing justice to the case he supports. He must
not knowingly do wrong to any one, but always re-member
that he is a minister of justice.
Such, then, is the oath taken by every member of
the bar, upon his admission. That part of it which
relates to supporting the Constitution of the United
States and of the State, resulted, from comparatively
recent enactment, but the other portion was the form
of qualification prescribed by .the Act of Assembly of
Pennsylvania, of 1752. The force and effect, how-ever,
of this obligation, depends, at last, upon its con-
ETHICS AND ETIQUETTE. 27
scientions interpretation. It may be so restricted as
to. render it almost ineffective—like all human provi-sions,
safeguards, or inventions, it may be invaded or
avoided by the craft or cunning of bad men.
The phrase, "All good fidelity to the Court and
the client," might be construed to mean more devo-tion
or obsequiousness than sound morality would
require or allow. And the phrase, " Nor delay any
man's cause for lucre or malice," if restricted as some
appear inclined to restrict it, to the delay of your own
client's cause, would, we think, obviously fall short of
the spirit of that portion of the oath, " which requires
that 3^ou should delay no man's cause." So that it
comes to this, that the potency of the oatK depends
,
as much upon the principles of him who takes it, as
upon its own terms. Oaths may make bad men worse,
but rarely make bad men better.
The system of ethics that is derived from such an
oath, may, or may not, be worthy of approval. The
best system of forensic ethics or moral philosophy, as
applied to the legal duties of men, is of divine autho-rity
: " Do unto others as you would be done by ;"
that is, as you justly deserve to be done by; "Love
your neighbors (or your clients,) as yourself;" which
means, do the same justice to them that in their con-dition
you would be rightly entitled to expect—^you
are not to do more for them than you would rightly
expect ; nor to love them better than yourself—not to
28 THE FORUM.
sacrifice your conscience or your heavenly hope to
them—and certainly not to adopt Lord Brougham's
notions, in his defence of Queen Caroline before the
House of Lords, which run thus :
—
" An advocate, by tlie sacred duty he owes lais client, knows, in
the discharge of that office, but one person in the world—^his
client, and none others. To save his client, by all expedient
means ; to protect that client at all hazards and costs, to all others,
and amongst others^ to himself, is the highest and most unquestioned
of his duties; and he must not regard the alarm, the suffering,
the torment, the destruction which he may bring upon any other.
Nay, separating even the duties of a patriot from those of an advo-cate,
and casting them, if need be, to the winds, he must go on,
reckless of the consequences, if his fate it should unhappily be, to
involve his country in confusion for his client's protection."
These principles—if they are so to be considered
—
being uttered, no doubt, under high professional excite-ment,
can certainly never be approved by any just or
reasonable man. They would, if carried out to the
extent suggested, make the advocate worse than a
highwayman, and r,ender him, under cover of the law,
a virtual outlaw.
Lord Erskine maintains almost as bold, but much
more tenable ground, in holding this language :
—
" I will for ever, and at all hazards, assert the dignity, inde-pendence,
and integrity of the English Bar, without which, impar-
ETHICS AND ETIQUETTE. 29
tial justice—the most valuable part of the English Constitution
can have no existence. From the moment that any advocate can
be permitted to say, that he will, or will not, stand between the
crown and the subject arraigned, in the court where he daily sits to
practise—from that moment Jhe liberties of England are at an end.
If the advocate refuses to defend, from what he may thiiik of the
charge or the defence, he assumes the character of the judge
—
nay, he assumes it before the hour of judgment, and in proportion
to his rank and reputation, puts the heavy influence, of perhaps a
mistaken opinion, into the scale against the accused, in whose
favor the benevolent principles of the English law make all pre-sumptions,
and in which they command the very judge to be his
counsel."
The doctrine of Lord Hale, however, comes nearer
to the true rule, than either of the great authorities to
which I have adverted, when he says :
—
" I never thought that my profession should either necessitate a
man to use his eloquence, by extenuations or aggravations, to make
any thing look worse or better than it deserves, or could justify a
man in it : to prostitute my eloquence or rhetoric in such a way, I
ever held to be most basely mercenary, and that it was below the
worth of a man, much more a Christian, to do so."
But Chief Justice Gibson places the obligation of
counsel upon a much more honorable and conscien-tious
footing, than any of these distinguished Lords, in
2 Barr's Pennsylvania State Reports, 189 :
—
^' It is," says he, "a popular, but gross mistake, to suppose that
30 THE FORUM.
a lawyer owes no fidelity to any one except liis client, and that the
latter is the keeper of his professional conscience. * * *
" He violates his official oath, when he consciously presses for
an unjust judgment; much more so, when he presses for the con-viction
of an innocent man. * * * The high and honorable office of
a counsel, would he degraded to that of a mercenary, were he com-pelled
to do the biddings of his client against the dictates of his
conscience."
A lawyer is not morally responsible for the act or
motive of a party, in maintaining an unjust cause, but
lie is morally responsible, if lie does it knowingly,
lioweyer lie may "plate sin with gold." We do not
speak now of the mere impression or opinion of coun-sel,
but actual Jcnoivledge. Suppose an action brought
to recover from a widow or an orphan, all they have
in the world, and the counsel is informed that only
half the money was due by the husband or father of
defendant, as co-partner with the plaintiff, and these
facts could not be shown by defendant—what lawyer
would claim to recover in such a case? We repeat it, a
lawyer is bound to refuse a case that he believes to be
dishonest, or to retire from it, the moment he discovers it
to be so. And he is also bound to avoid litigation, unless
it is necessary, and when necessary or unavoidable, al-ways
to adopt the least offensive means for bringing it to
a satisfactory result. The law is the handmaid of jus-tice,
and in its administration should never be attended
with undue severity or malevolence. He is not bound,
ETHICS AND ETIQUETTE. 3]^
even in every just cause, to accept the retainer of his
client or to bring a suit. Some men profess the doc-trine,
that a lawyer might sue his own father, or any
other person. That would he a gross impropriety, and
would ruin any man that would perpetrate it. Do-mestic
and social obligations are always to be regarded.
Even suits against members of your own profession,
should always be reluctantly and delicately entered
into, and except in rare cases, never with the exac-tion
of professional compensation. In short, always
mingle as much kindness as possible, with the perform-ance
of duty; and you never will, or never ought to,
make an enemy or lose a friend. When we say as
much kmdness as is possible, it is not to be understood
that you are to treat all cases alike, in this respect.
Kindness to some, would be a dereliction from duty.
The heartless oppressor, the crafty trickster, the bold
and blushless villain, the wanton calumniator, or the
cold-blooded assassin, hardly belong to humanity, and
can scarcely claim the protection of human sympathy
or generosity.
A lawyer has a right to take all the advantage his
learning and talents afford him, in order to sustain a
good cause or defeat a corrupt one ; but he has no privi-lege
to substitute his talents or learning for the honesty
of a case, and thereby render iniquity triumphant.
Where he has doubts as to the correctness of Ms posi-tions,
he may fairly incline in favor of the party he
32 THEFORUM.
represents, and sustain Ms views by every authority
and fact that the law or evidence may supply, leaving
it, of course, to the court and jury to ratify or reject
them. He is not to decide the case, nor is he morally
answerable for the correctness of its decision ; but he
is answerable for the correctness of the motives by
which he is influenced. We are not about to suggest
a reward for a virtue, for that would be to render the
virtue questionable ; but this we may say, that if an
advocate were always governed by this principle,
though he may not always gain his cases, he would at
least, always be certain to gain such cases as he did
not deserve to lose.
He is not only not knowingly to urge an unjust
cause, but he is not to contribute to the gratification
of his chent's malignant passions, in the discussion
of any cause, however just, but as far as he can,
retui'n good for evil. A chent called suddenly upon
counsel, and laid a heavy fee upon the table—"I
am," said he, " the defendant in a case which is now
going on, and I wish to engage you, and hope you will
treat the opposing party with some severity, as he has
practised great severity upon me." "Before I take
your fee," said the lawyer, "let us understand each
other ; do you wish me to treat the plaintiff with se-verity,
whether I may think he deserves it or not ? If
I think he deserves it, I shall do it without your stipu-lation
; and if I think he does not deserve it, I shall
ETHICS AND ETIQUETTE. 33
not do it for any fee you can pay." Of course, the
client saw his folly, and the case proceeded upon the
fair and honorable terms of the counsel.
A lawyer, we assert, is not bound to take every cause
that is tendered to him—^he is no man's man. He is the
adviser, but not the slave or serf of his client. He is
not only not bound to take a case which he clearly
perceives to be unconscientious, but he is bound to
discourage its institution. Yet it must not be sup-posed,
because counsel may fail in the result, that the
cause was unfounded and unworthy of support—much
less that he Jcnew it to be so. Sometimes the most
honest case may be destitute of evidence to sup-port
it ; whereas, upon the opposite side, craft, indus-try
and fraud, may present impassable obstacles to
recovery. The counsel is not to be adjudged merely
from results, or from the opinion of those, who know
nothing of the condition of the parties and their rela-tive
rights, but what appears upon the trial. Every
lawyer knows that there are cases in which he is per-fectly
assured of two things—first, the honesty of the
case ; secondly, the corruption of the adversary. And
yet he is almost as certain that his case must fail, and
the opposite party triumph. What is he to do ? He
is to lead the forlorn hope—throw himself into " the
imminent deadly breach ;" and, to use a strong figure,
conquer or die. What can the spectators or auditors
know, while they presume to judge him, of the nature
34 THE FORUM. '
'
of the information of wliicli lie is the sacred deposi-tory,
and upon which must mainly depend the ques-tion
as to his conscientious rectitude? There nei^er
was a lawyer in full practice, who has not lost cases
equal in merit to any that he ever gained. Death,
"
accident, loss of papers, absence of witnesses—too
much confidence in the honesty and candor of the ad-verse
party, an ignorant, partial, or prejudiced jury,
and all the thousand shapes that craft may assume,
and all "the ills that flesh is heir to," ma}^ defeat the
best case and support the worst; and yet the counsel
upon both sides may be utterly deceived or exempt
from blame. To show a glaring case, in which men of
the highest honor were concerned, let us direct atten-tion
to The Commonwealth v. Van Yliet, a case of
great notoriety and of unparalleled inicjuity.
The defendant was prosecuted for having stolen
three thousand dollars in foreign gold,- (sovereigns.)
The prosecutrix swore that she had that amount of
money, which she had been collecting for a long time
;
that the prisoner upon one occasion introduced himself
into her house, under pretence of desh-mg to buy old
watches or jewelry; that at the time he entered she
was engaged in counting her gold, but put it in her
bureau, for the purpose of bringing down an old watch;
that when she came down, after a few minutes conver-sation
the prisoner left the house, and upon her then
going to the drawer, the gold was gone. She swore,
ETHICS AND ETIQUETTE. 35
also, to the identity of the prisoner, who was a French-man
and speaking very broken English, and somewhat
' deformed in person.
The next witness was a confederate, who testified
that he knew the defendant, and had lived with him for
about two weeks ; that on the day of the alleged loss
of money, the defendant came home and had with him
a large quantity of gold, of the description sworn to
;
that they counted it together, and that the number of
sovereigns exactly corresponded with the amount lost
that the day after, these sovereigns were melted down
by the mint, and that the product, in new American
coinage, was handed over to the defendant. The officer
of the mint proved the meltmg, and the payment to
the defendant. The new coin was all found on the
person of the defendant.
Now, upon this testimony, what could be plainer
than the guilt of the defendant ?
The defendant was a stranger—he denied his guilt
;
nobody knew him. He averred he had brought the-money
from Liverpool—^produced some little evidence
that he had such money on his arrival. But this would
not do; he was convicted, and the money was about
passing into the hands of the prosecutrix.
Newly discovered testimony, was the ground of mo-tion
for a new trial. The new trial was granted, and
by consent of the Attorney General, a commission
issued to England.
3g THEFORUM.
Upon the second trial it appeared tliat tlie prosecu-trix
had no such money.
That the defendant had received English sovereigns
for French gold, in Liverpool.
That he had employed the confederate to interpret
for him for two weeks, and had counted the money
with him, and then carried it to the mint and obtained
in lieu, American gold.
That having dismissed his interpreter, that person
concocted the above scheme, with the prosecutrix, for
the purpose of gratifying his revenge, obtaining the
money, and dividing the spoils.
He was, of course, acquitted.
Three eminent gentlemen were concerned for the
prosecution ; they, no doubt, thought the man guilty.
The defendant's counsel were convinced of his innocence,
but his isolated situation deprived him of the benefit of
testimony. Indeed, if the rule which forbids a com-mission
in a criminal case, had not been relaxed, he
might probably have even been convicted on the second
trial.
As there is no difficulty as to what counsel should
do in an honest, though feeble case, neither is there
any question as to what he should do, when, after
having been retained, he discovers that his case is un-sound
and dishonest. He is bound to abandon the
cause at once. He is not bound, as has been observed,
to do more for a client than the client could justly do for
ETHICS AND ETIQUETTE. 37"
himself. Or if he has, in error, advanced so far in the
cause, that he cannot abandon it without compromising
too far the interests of his client, he must at least he
careful, while he watches its progress, not to adopt
its principles, and thereby forfeit his own self-respect
and the approval of his own conscience.
An action of ejectment was brought, many years
ago, to recover a large tract of land lying in
county. The defendants relied, for theii defence, upon
an adverse possession of upwards of twenty-one years.
The facts, so far as they are necessary to be known,
are these :—The defendants entered upon a tract of
several hundred acres, and cleared and occupied some
four or five acres, leaving the remainder of the tract
unenclosed and unimproved. Subsequently, however,
to the original occupancy, they caused the rest of the
tract to be marked off, the trees to be notched, &c., &c.
The case came on for trial—as to the three or four
acres, there was no difficulty ; but the struggle rested
upon the rest of the tract. The defendants' counsel
sent for the axe-carrier, who had notched the trees,
but upon his private examination it appeared clearly,
that the appropriation of the "debatable land" had
been made but twelve years before the action brought.
Then arose the question of ethics—and the first ques-tion
was, whether they should examine their witness ?
Of course that was easUy disposed of, and the witness
was dismissed. This being done, the case went to the
38 THE FORUM.
jury upon tlie evidence and inferences as tliey previ-ously
stood, and the trial eventuated in a verdict for
the defendant for the entire tract. The counsel for
defendant, however, were compelled, upon the argu-ment,
to urge presumptions upon the jury; which,
though consistent with the ei^dence submitted, were,
of course, inconsistent with the actual state of the
case, as it would have been exhibited by the axe-bearer.
This verdict, though gratifying to professional
pride, was not very satisfactory to the conscience of
the counsel ; and having met the plaintiff, who was a
man of wealth and liberality, they suggested to him,
that as their chents were poor men, and as the case
had been tried, they thought some terms might be
agreed upon to settle the question forever, and to give
the defendants a marketable title. "Very well," said
the plaintiff, " the property is worth ten dollars an acre,
but as you have got a verdict, and as you say the occu-pants
are poor, let them pay me a dollar an acre for
the land, and I will execute a deed to them." The
money was paid—the conveyance executed, and the
controversy ended.
Upon this case being mentioned to some members
of the bar, different opinions were expressed in relation
to it. A gentleman of a high moral standard and an
eminent lawyer, expressed the opinion, that the course
pursued was entirely justifiable. First, because the
counsel were not bound to call the witness, who would
ETHICS AND ETIQUETTE. 39
destroy tlieir client. Secondly, that tliey were per-mitted
to maintain tliat, upon the evidence the plain-tiff
was not entitled to recover. Another gentleman
admitted the first proposition, but observed, in relation
to the second, " that the defence did not rest upon any
alleged insufficiency of the plaintiff's title, but upon
maintaining affirmatively the possession of the defend-ant
for twenty-one years, and endeavoring to induce
the jury to believe what his counsel knew was not the
fact f which was utterly inconsistent with every prm-ciple
of moral philosophy. Even in a criminal case,
which is the severest test to which counsel can be sub-jected—
though counsel may contend that the case for
the prosecution is not made out by the evidence
they have no right to contend that presumptions may
be built upon the evidence, which, although the evi-dence
may possibly warrant them, the counsel know
to be contrary to fact and truth.
In these remarks I have referred mostly to civil
proceedings; it is proper that something should be
said in regard to criminal, or State trials. There is,
let it be remembered, a vast difference between civil
and criminal cases. A sympathetic heart may be
allowed to soften the rigor of the sternest and most
inflexible justice. A man may be morally guilty
—
that is to be left to his Creator. The only question
submitted to a court and jury is, whether he is guilty
according to law—guilty . upon the issue tried. A
40 THEFORUM.
learned judge, forgetful of this principle, pressed the
conviction of a prisoner, where the evidence was some-what
doubtful, and gave, as a reason, that there had
been several other charges against him. And the same
judge passed a sentence of three years (the full limit
of the law,) in a case of larceny ; stating, in excuse,
that the prisoner had been acquitted upon a former bill,
of robbery, of which he no doubt was guilty.
Men, who take pubHc offices, must discharge public
duty; but private counsel should never prosecute a capi-tal
charge
—
never take blood money.* The Attorney
General, or District Attorney, is bound to perform the
function of pubhc prosecutor, yet even he should do it,
firmly, liberally, humanely. He should be a " sacrificer,
but no butcher." " Still," in the language of Cicero, "it
is always more honorable to defend, than to prosecute.
It seems to be the part of a harsh character, or rather
of one that is scarcely a man, to bring the lives of men
into jeopardy." In addition to this, it is not only more
* A most atrocious murder, which occurred in Delaware county, bj
which the feelings of the entire county were outraged and incensed, led
to an application to a member of the bar of this city, whose services, it
was supposed, would secure a conviction. He had scruples as to the pro-priety
of taking the price of blood, and said so, but desired some time to
consider the subject. He then wrote to Mr. Eawle, stating the case, and
requesting his opinion. The answer was brief, and thus it ran : " Cicero
thought, and I think so, too, that it is always more honorable to defend
than to prosecute, where life or death is the issue." Of course the case
was declined.
ETHICS AND ETIQUETTE. 4]^
consistent with humanity, but with sound policy. It
adds much to the general influence of the arguments of
counsel. If a lawyer is found to-day prosecuting a petit
larceny, and to-morrow defending a highway robber
—
mamtaining one sentiment at one time, and another at
another, what confidence or reliance can be reposed m
him ? Besides, it hardens the heart, and substitutes
suspicion for confidence.
But what are the obligations of counsel for a de-fendant
in felony—and especially in capital felony?
StiU to act conscientiously, to serve his cHent honestly,
to the best of his abilities. He must utter no false-hood,
resort to no subterfuge, and carefully guard
the accused against every attempted invasion of his
rights and privileges, either from court, counsel, or
witnesses. The advocate is sworn to give to his
client the fuU protection of the law, according to the
best of his skill. But it may be asked, " Will you
defend those whom you know, or strongly suspect, to
be guilty ?" The answer is, " Counsel are, in most
cases, not able, and perhaps, in no cases have the
right, to determine the question that they are called
upon to argue—its determination must depend upon
the judges and the jury."*
A young member of the bar, who has since reached
* A lawyer is not to usurp the province of the jury and of the judge,
and determine what shall be the effect of evidence, or what shall be the
result of legal argument.
—
Dr. Johnson.
VOL. II. 4
42 THE FOEUM.
some eminence, when applied to in a first case, which
was somewhat complicated and doubtful, waited on
the late Mr. E-awle, stated the case, and remarked at
the same time, that he thought it a bad one. "You are,"
said Mr. Rawle, "a presumptuous young man, thus to
venture in the outset to determine, what a comt and
jury only can decide after hearing all the testimony."
Judge Sharswood—at once a good example and
high authority—in his able treatise upon professional
ethics, has well defined the position of court and
jury, when he says, " Every case is to be decided by
the tribunal before which it is brought for adjudica-tion,
upon the evidence and upon the principle of the
law applicable to the facts, as they appear iq^on the
evidence. No court or jury are invested with any
arbitrary discretion to determine a cause according to
then mere notions of justice. Such discretion, vested
in any body of men, would constitute the most ap-palling
of despotisms. Law, and justice accoeding to
LAW ; this is the only secure principle upon which the
controversies of men can be decided. It is better,
on the whole, that a few particular cases of hardship
and injustice, arising from a defect of evidence or the
unbending character of some strict rule of law, should
be endured, than that general insecurity should pervade
the community."*
^ It is not so material that these arbitrary rules should be fixed one
^-ay or another, as that that they should be fixed.—ySzV William Grant.
ETHICS AND ETIQUETTE. 43
You might as well expect a physician or ia surgeon
to abandon a patient, who he thinks must die, as to
expect a lawyer to abandon a cause of which he has
little hopes. It rarely, if ever, happens, that the
offender in a grave criminal charge admits his guilt,
even to his counsel. He may admit the bare act
charged against him, but he suggests, in connexion
with it, such causes, motives, and influences, as to de-prive
the act of the essential character of a crime, or
affect it, in its degree. A man is charged with mur-der—
it is known, and he admits to his counsel, that
he struck the fatal blow, but also states that the de^
ceased, at the instant, had treated him with great
indignity—had pulled his nose, or spat upon him, or
committed an outrage upon his domestic peace and
honor. This is killing, it is true, but no murder, either
in fm^o humano, or perhaps, in foro c&nscientki. What
shall prevent honorable counsel from maintaining that,
at most, it is but manslaughter, or Jiomicide se defendendo.
The time of trial arrives—the counsel takes his po-sition
by his client—he knows what, perhaps, no one
else but that chent knows ; he carefully surrounds his
defence with every possible safeguard—from a preju-diced
jury, from zealous witnesses, from illegal ques-tions
or answers, from perverted views of the law or
evidence, from inflammatory appeals of the prosecuting
counsel, and from the errors of the court. It is for
the prosecution to prove its case.
44 THE FORUM.
After the prosecutor's case is established, of course
the defendant's counsel is not to deny the blow, though
he is not comjDelled to admit it. He is certainly not to
suggest that the blow was struck by another. Heaven
forbid ! but he is to introduce such evidence as he has,
of general reputation, or relative or direct facts, tend-ing
to furnish a correct view of the true character of
the transaction, and the causes which gave rise to it.
Certainly no Christian would deny the propriety of
such a course.
In the case of The Queen v. Courvoisier, for the mur-der
of Lord William Hussell, it was charged against Mr.
Charles Phillips, one of the counsel for the defend-ant,
that after he had been informed by his client of
his guilt, he actually attempted to maintain that the
murder had been committed by a person known to
be mnoceyit, in order to protect the prisoner against
condign punishment.-"^' Now, such a course could rest
only upon the erroneous and flagitious doctrine of Lord
Brougham in the Queen's case. Certainly no dispas-sionate
and honest man can justify or vindicate it for
a moment. Where is the oath of the counsel, to "con-duct
himself with all good fidelity, as well to the court
as to the client." Where is his duty to himself? where
is his still higher duty to the Judge of judges ?
In the case of Adam H , who was tried for the
* This proved to be an unfounded accusation.
ETHICS AND ETIQUETTE. 45
murder of his wife, and who afterwards dissected her
body with a case-kiiife. The defendant, before trial,
acknowledged his guilt to his counsel in Philadelphia,
and afterwards confessed it upon the gallows; still,
there were some flaws and discrepancies in the evi-dence
for the prosecution, and a number of surgeons
were honestly prepared to swear (and some on the
trial did swear,) that the dissection was so skilful and
scientific, that it was almost impossible that any man,
except with appropriate surgical instruments, and with
a knowledge of surgery, could have accomplished the
dissection in the manner in which it was performed.
The counsel knowing the guilt of his client, declined
resting the defence on the ground that the prisoner had
not committed the homicide—but was willing to rest
it upon the alleged provocation to the act. Which,
allow us to say, with great respect for those who
know more and think differently, would have been the
only available rehance for the unhappy Dr. Webster,
charged with the murder of Dr. Parkman, of Massa-chusetts.*
Those who condemn professional men most, know
the least of them., and censure in the very blindness of
ignorance and prejudice. We do not believe a respect-
* Adam H was defended by gentlemen of liigli legal character in
Baltimore, Avho, not being cognizant of bis confession, were, of course,
not embarrassed by any conscientious scruples, arising from such know-ledge.
The defendant was convicted and executed.
45 THE FORUM,
able lawyer ever defended a prisoner, whom he had
not some reason to think, if not innocent, not guilty to
the extent of the charge. Can it then be required of
counsel that, by withholding their aid, they shall not
only 23rejudice a case, but prejudice it unfavorably to
the party who has applied to them in his extremity,
and who, according to his own statements, which he
hopes to establish, is a man more sinned agamst than
sinning. Certainly, the humanity of those Avho aid
then' fellow-creatures in distress and imprisonment, is
some voucher for the rectitude of those feelings from
which that aid springs.
The counsel is the depository of all the most import-ant
secrets and interests of his client—life, hberty,
property, character, every thing. And to say that
they should be most religiously guarded and preserved,
is to say no more than to remind him of honor's sacred
tie, and the oath that binds him to fidelity.
Even the " sigillwn confessionis' is nothing in compari-son
with the sanctity and inviolability of the confidence
reposed by a client in his legal adviser. Every thing
entrusted to counsel that can possibly affect his client's
interest, should be kept as close as "nature's tacitur-nity."
Pvemember, you are "his other self,"—no
earthly power can compel you to reveal what he has
confided to you—he may waive this protection, but
you cannot violate its obligations. A lawyer who
would, in any circumstances, divulge what he has
ETHICS AND ETIQUETTE. ^^
learned under professional sanction, would at once, and
directly lose caste. We have known this, however,
carried to rather an absurd extent. There may be
cases in which the communication might be of the ut-most
importance to a client, and we are not so clear
that the counsel is not bound—unless the chent forbids
it—to give his chent the benefit of his evidence, where
the injudicious examination of the opposite party affords
the opportunity. This obligation does not only rest upon
the lawyer in court, but it binds him wherever he may
be. There is scarcely a lawyer in full practice, either
in civil or criminal cases, who, if he divulged all that
he must know of the affairs of his chenis, would not
ruin a large portion of the community.
Another rule to be observed is, always to consider
that the knowledge derived from your chent, is held
by you in trust, and can be used only, for his pur-poses.
Suppose you hold two judgments against C,
one for A. and the other for B. ; and B., whose judg-ment
is the latest, directs you to issue a testatum execu-tion
into the adjoining county against property belong-ing
to defendant. You could not, with propriety, issue
your execution upon the first, to the exclusion of the
second judgment, allowing you are equally bound to
both the clients—as he that is most vigilant, is most
regarded in law and conscience.
One of the most difficult positions, and most to be
avoided, is to be the counsel of adversaries—of course
^g THE FORUM.
not in the same case—in different cases. It always
leads to suspicion and confusion, even wliGn the man-agement
of counsel is the most unexceptionable. But
passing from morals to manners :
—
Etiquette, which originally signified but a card or
ticket, or letter, by which intercourse or information
between men was facilitated and improved, by the
modification of time and fashion, has now become a
word significant of the ceremonies that belong to the
decorum of society. It still, in one sense, retains its
original signification, although no longer confined or
applied to its original purpose. Then it was a mark or
card appended to a package, expressive of its contents.
Now it has become a rule, regulating the manners and
refinements of fashionable, professional, and social in-tercourse.
It is our purpose simply to apply it to
forensic life, and not merely as . relating to habits, but
to the morals and influence of the profession. In-deed,
it may almost be considered as vktually belong-ing
to the ethics of the bar—manners are sometimes
morals.
Reverence for age.—No young man can prosper in
his profession, who is unmindful of due respect to
seniors at the bar. He that is so, breaks down his
own safety and dignity, should he live to be old—in
respecting them, he respects himself. Flippancy, fro-w^
ardness, a forwardness exhibited by the youthful
towards the aged barrister, is a mark of vulgarity
ETHICS AND ETIQUETTE. 49
and low breeding, which, however it might gratify the
vulgar and the low^, must ever disgust those w^hose
good opinion and support are worth preserving. We
speak not now of comparative talents, but simply of
years, or stages in life.
In ancient Rome and Greece, gray hairs were con-sidered
"a crown of glory"—at the forum, in the sen-ate,
at the Olympic games—everywhere. We may all
remember, from the reading of boyhood—W'hich, well
applied, furnishes admirable lessons for after life—the
anecdote related of an aged citizen, presenting him-self
among a mixed and crowded assembly m Greece.
The Athenians beckoned him to take a seat among
them, but upon approaching for that purpose, they
closed their ranks and laughed at his disappointment,
whereupon, disgusted with this insolent cruelty, the
youthful Lacedemonians at once relinquished their
seats, to render the old man comfortable. " I see how
it is," said the aged citizen, in terms of well-deserved
rebuke, " the Athenians understand politeness, but the
Lacedemonians practise it." Irreverence towards old
age, in those ancient States never was tolerated, much
less sanctioned. Themistocles was rebuked by Pho-cion
for speaking out of his place, and taking prece-dence
of his seniors. But there is a better rule, and
of higher authority, which runs thus : " Speak, young
man, if there be need of thee, and yet scarcely when
thou art twice asked. If thou be among great men,
gQ THE FORUM.
make not thyself equal to them, and when ancient
men are in place nse not many words."
The senators, conscript fathers, nay, kings and
tyrants almost always manifested due regard for age,
and listened to its precepts with deference, or beheld
its infirmities with sympathy.
Among us, let it further be said, that respect for ad-vanced
life, is not simply inculcated upon the bar—it is
due from the court, itself, as an example to the bar. If
we are considerate to the young, and encourage them
where they falter, and raise them when they fall, we are
equally bound to sympathise with second youth, and re-vere
those men who, exhausted by a life of learning and
labor, like dying ancestors, are dechning into the nar-row
house, after having garnered up wisdom, experi-ence,
and honors, of which we are to be the inheritors.
"We must be pardoned in saying, that while respect for
office is necessary, respect for old age is natural and
most commendable. When, therefore, a judge U2Don
the bench, elected by the " most sweet voices" of the
populace, builds his hopes of popular distinction upon
an assumption of learning superior to that of a man of
twice his age; or familiar with some modern case, smiles
at the venerable advocate, who ventures to refer to the
ancient land-marks of the law, Ms faltering steps not
having kept pace with modern improvements—-judicial
vanity may be gratified, but prudence and propriety
are forgotten.
ETHICS AND ETIQUETTE. 51
" That is not tlie law now/' said a learned judge
'to Mr. N., "it has been overrnled by the case of Den
V. Fen, published in the last volnme of Earr's Ee-ports,
or in the Legal InteUigencer of last week." " I
don't know," was the humble reply, "any thing of the
case the court refers to ; I know that what I maintain
tvas the undisputed law for more than a century
—
there have been no legislative changes ; the judges have
been changed, it is true, and if the law has changed
with them I did not know it, and I could not help it."
^ Of course, the court have the right to suggest to the
counsel what they please, in regard to the points of law
involved in an argument; but there is a manner and a
time for all things—they should aid the young, but they
should, at least, hsten to the old. There is a wisdom in
years, that at all events inculcates the propriety of an
apparent deference to its opinions. Young America, we
trust,, will live to be old America ; and the pernicious
example of to-day will be a precedent for centuries
to come. " The poisoned chalice shall be commended
to our own lips," or the lips of those who, for want
of a safeguard, become its ready victuns. The courts
will sometunes listen for ten "mortal hours," to a
speech made up of a " Eattle of the Books," refreshed
only by an occasional comphmentary reference to recent
newspaper opinions of their own. Eut everything that
is older than the court itself, or the new constitution,
in conformity with the spirit of the times, should not
52 THE FORUM.
be looked at with doubt^ or treated with contempt.
Every new generation is wiser than the past. The
pupils laugh at the lessons of the masters ; and even
some judges forget that they derived their lofty honors,
not from their superiority at the bar, their unequalled
learning, or their great experience, but in some cases
from then" party and political influences. Look at the
judges before they graced the bench ! Did they. main-tain
a higher position than their legal brethren ? Cer-tainly
not. Does it require greater learning or talents
to make an accomplished judge, than an eminent bar-rister
? Far from it—it requires different, but not bu-perior
qualifications. The judge who decides, encoun-ters
less difficulty than the advocate, who is to argue
and to convince. The former is aided and instructed
by the labor, research, and talents of the latter. We
thmk, in all modesty it may be said, that the bar, in
its different departments in this country, and in every
part of the world, has always been, at least equal to the
bench : it may be construed treason, to say more. It
is true, there have been Hales, Holts, and Mansfields
on the bench in England—and so have there been
Erskines, Garrows, Dunnings, Plumers, Nortons, and
Broughams, at the bar. True, there have been Mar-shall,
Wasliingtons, Kents, and Tilghmans with us
—
and so have there been Pinckneys, Websters, Wirts,
Lewises, Wilsons, Hamiltons, Ligersolls, Rawles, Bin-neys.
Sergeants, Chaunceys, and a long list of forensic
ETHICS A/ND ETIQUETTE. 53
stars, that in their individual and accumnlated splen-dor
"pale the ineffectual fire" of the judiciary. But to
take another view, the judges in England have often
heen suspected of pandering to a corrupt ministry, or
a worthless king; whereas, there is no evidence on
record, of a lawyer of any note, under any influence,
ever having deserted or betrayed his post. An eminent
lawyer writing on this subject, says : " The absurd tend-ency
of the public mind seems to be, to giorif}^ the
bench, even at the expense of the bar. According to
my observation for thirty years, the bar has always
been equal to the bench, in all qualities which adorn
the profession in Pennsylvania." Rightly understood,,
the judges and the bar should be considered as integral
branches of a great system, relatively necessary to
each other, and through each other to the community
—deriving their utility and efficiency from their com-bined
and harmonious adaptation to the great objects
of public justice. So much for due reverence to age,
independently of talent.
If, with seniority you couiole lofty talent, the obliga-tions
of respect are increased in strength. There is
then an intellectual, as well as moral power, to which
we should freely submit, not as slaves, but as generous
aspirants for professional honors. This submission
is the first step towards a superiority or equality of
worth. A reverence for the great attainments of others,
and their modest acknowledgment, gives an assurance
54 THE FORUM.
that we know their yalue and our oivn deficiencies.
The man who is conscious of his own intellectual
wants, will soon learn how to supply them. The man
who clearly discerns his own faults, is surest to amend
them ; and he that admires and aj)proYes the vu'tues
of others, becomes incapable of envy, in the desire
of rivalry. But to turn from the inner to the outer
man:
Dress.—It is certainly by no means essential to a
member of the bar, that his dress should be studiously
considered or nicely adjusted, but still a proper regard to
decency of exterior and the claims of the profession, as
evincing a becoming respect for the opinions of others,
may contribute to enlarge his sphere of influence, and
to recommend him to those portions of society whose
perspicacity never enabled them to discover virtue in
poverty, or genius in rags.* The annals of the bar in-form
us that Dunning, the putative author of Junius,
who became one of the chief lawyers of his time, lived
for years in poverty, without a second coat to his
* One of tlie best lawyers of his day, who was admitted in the year
1791, and who for learning and acuteness, had but few suj^^^'i^rs, in the
latter part of his professional life lost his fortune, and became careless of
his personal appearance. His business, too, seemed to get thread-bare,
with his apparel. In this state of things he complained to a friend, and
asked what he would advise ? "I advise you," was the reply, " to order
an entire new suit of black, shave every day, and take your stand regu-larly
at the bar, that you may be seen of men—clients never flock around
those who appear to stand in need of their support."
ETHICS AND ETIQUETTE. 55
back, and without a case on tlie docket. Tlie only
Jiahits that recommended him to notice, were his habits
of indiish'i/, and even those would hardly of them-selves
have brought him into favor, but that the East
India Company, in an emergency requiring immediate
preparation, was referred to him, as having nothing
else to do. He performed the work so much to theu'
satisfaction, as to place him in a position in court
which led to all his future fame and fortune.
Further—-justice, in addition to her celestial quali-ties,
is invested with female privileges, and is rarely to
be wooed or won by neghg^t or slovenly suitors—
a
begrimed face or sullied hands scarcely become the
purity of her temple, and the apparel of her ministers
should be appropriately adapted to her august ceremo-nials
and decrees.
A martinet is one who, though prim and precise in
dress and drill, shrinks from the scars of war—that is,
he is all outside. A prig or a dandy is one who, while
he wears fine clothes, wears them for his personal adorn-ment,
is constantly in fear of their bemg injured, and
tliinks of Httle else. But a gentleman, in the true
sense of the word, is one wdio regards dress and fashion
as a tribute to the usages of society, but as constituting
no merit in liimself.
We are no sticklers for wigs or gowns—the former
often cover an empty pate, and the latter a hard or
corrupt heart ; but a consistent professional dress, is
56 THE FORUM.
just as necessary in a court room, as is a fasliionable
dress in a ball room, and mucli more important.
In England, the bar at one time applied to Lord
Denman for permission to lay aside their wigs and
*gowns. His Lordship, like a reasonable man, gave
permission, simply enjoining, in lieu thereof, that they
should appear in what might be called a becoming
court dress. For a few days the new regulation
worked very well, but at last the bar seemed to have
lost its identity. Clothes of all colors and descriptions
were intermixed—" black spirits and wliite, blue spirits
and gray," flitted through Westminster's sacred halls.
The bar and the people were confounded together
—
manners were as much changed as habiKnients, and at
last it became indispensable that the offcast trappings
should be again resumed.
But, as has been said, we are no advocates for the
imitation of foreign example. Let a lawyer dress as
he chooses, provided he always dresses as a gentle-man.
We care nothing for the texture, value, color, or
fashion of his garments. He should be clean ; for if
he is dirty outside, rely upon it, he is dirty in.
Dejjortment totvards the Court.—A lawyer should not
address the Court with his gloves and overcoat on
;
he might as well do so with his hat on. It is most
remarkable that such matters should require to be
mentioned, ordinary gentility would seem to forbid the
necessity. Nay, he should not be permitted to remain
ETHICS AND ETIQUETTE. 57'
in court with his cloak or overcoat on, to the annoy-ance
of every one about him, and to the disgrace of
the har. The judges never fall into this error. They
dress simply and becomingly, instead of carrying their
whole wardrobe upon their backs. If the bar ever
expects to be looked upon as a class, the success of
their anticipations must depend upon themselves, and
their due observance of high social and professional
courtesy and refinement.
Again, dress without consistent address, is nothing.
We never saw a barrister standing up within the rails in
Westminster Hall or Lincoln's Inn, unless he were
engaged in a cause. We never saw one sitting in any
manner unbecoming a gentleman—never saw one loll-ing
upon a settee or dosing in his chair, or agitating or
settling a personal dispute, or complaining of the court,
or propitiating his chent upon a lost suit, or forgetting
that he belonged to a privileged order, and was bound
to act up to his high calhng. We are sorry to say,
among us, there are not equal exterior observances of
decorum. Still, though our manners are less conven-tional
or artificial, we have some merits of which
they cannot boast on the other side of the Atlantic.
The members of the bar with us are more united in
feeling, more liberal, less technical, less sectional, and
less jealous of each other. There is, indeed, no body
of men more free from antipathies than the Philadel-phia
Bar. This is somewhat attributable to the ab-
VOL. II.—
5
58 THE FORUM.
sence of attorneys and special pleaders^ wliOj in the
mother country are apt to foment and prolong dis-putes,
not only between clients, hut even among their
barristers or counsel.
There is another matter for which the entire Ameri-can
Bar of the present day, bear an honorable com-parison
with any other bar withm the scope of our
information—we mean sobriety or temperance. We
know them well, and we are not going too far when
w^e say that there are, in a profession of five hundred
lawyers in Philadelphia, (which, in this respect, justly
represents the entire bar of the United States,) not
five who are tainted with the vice of intemperance, or
who, in more figurative and classic language, worship
at the infernal shrine of Bacchus.
In this regard, we have even improved upon the
state of the bar some forty years ago. At that time
the members of the bar scarcely exceeded one hundred
—all men of education. Of these one hundred, perhaps
five, (over whose names charity draws the veil,) rarely
appeared in court without having apparently indulged
in " potations pottle deep," at some other bar. In the
interior of the State, until within the last twenty years,
iit was still worse. Sobriety f^nd inebriety, in some
counties were about equally divided—a sort of half-andrhalf
mixture. But to their credit, be it said, it is
not.soi^o?^, and has long ceased to be so. In a very
general practice, we remember no recent instance in our
ETHICS AND ETIQUETTE. gg
own State, or the neighboring States, of such shameful
'abandonment of moral and professional decorum. The
time used to be, when topers excited sympathy—now
they produce disgust. In former times, we have known
many an inebriate who has had credit for great talents,
upon a very slight capital, merely because it was won-derful
that he should have an?/, when a temperate
man, exhibiting greater ability, would not have been
considered many removes from a fool—such was the
admirable consistency of popular opinion. But, as we
have said, the times are now changed, and we are
changed with them.
Temper.—" Counsel," says a learned judge,* in treat-ing
of professional ethics, " should bear in mind the
wearisomeness of a judge's office. How much he sees
and hears in the course of a long session, to try his
patience and temper. Respectful submission,—nay,
even cheerful acquiescence, in a decision, when, as is
most generally the case, no good result to his cause
can grow from any other course,—is true wisdom, as
well as propriety. An exception may be noted to the
opinion of the bench as easily in an agreeable and
respectful, as in a contemptuous and insulting mamier.
The excitement of a trial of a cause, is no doubt often
the reason and apology for apparent disresj^ect in man-ner
and language ; but it is to be observed, that petu-
" Judo'e Sharswood.
go THE FORUM.
lance, or conflicts with the bencli, which render the
trial of causes disagreeable to all concerned, has more
generally an injurious result upon the interest of chents.
It is highly important that an advocate should be always
equal. He should most carefully repress anything like
excitabihty or irritability. When passion is allowed to
prevail, the judgment is dethroned ; words are spoken,
or things done, which the parties afterwards wish could
be unsaid or undone. Equanimity and self-possession
are quahties of unspeakable value."
This is all perfectly sound and true, and the doctrine
should be closely observed by the court, as well as by
COUNSEL. Petulancy produces petulancy, and is not
confined to, nor does it always originate with, the bar
;
and, although the "wearisomeness" of the judge's office
should be borne in mind, the vexations to which coun-sel
are subjected, are also entitled to be remembered.
Mutual forbearance produces mutual satisfaction, and
adds grace to dignity. Respect for the court is neces-sary,
but regard for counsel is not less to be inculcated
;
and above all, a strict maintenance, in all circumstances,
of the rights of a client. We are told that, when Home
Tooke, in the course of one of his late trials, asserted that
" there was not a single counsel who would venture to
support Ms own conscientious conviction, against the
opinion of a presiding judge, there was not at the time
a single lawyer present, whose hollow bosom did not
echo the sentence, and silently admit its truth." Thank
ETHICS AND ETIQUETTE. g]^
heaven this is a reproach that has never rested^ and
we trust never will rest, upon the American bar.*
Business intercourse.—Passing to the direct profes-sional
business intercourse between counsel, what rules
shall be laid down ? Fnst, kindness to your juniors
;
reverence towards your seniors, and* frankness and
courtesy to all. Firmness and fidelity are perfectly
reconcilable with courtesy and kindness.
By all means, in aU circumstances, maintam your com-posure;
if you lose that, you lose aU. If asked what is
the most deskable attainment of a lawyer, we would say,
—composure. A wealthy and venerable gentleman of
this city, whose only son had recently been admitted to
* In a work publishecl some tliirty-seven years ago, upon the decline of
tlie Britisli bar, there are the following hints, which are worthy of onr
regard :—" It cannot be denied, that there is a servile and crouching spirit
in the bar towards the bench, inconsistent with the equality on which all
gentlemen are placed, and with the liberal nature of their early education
and attainments. It may perhaps be conceded, that a small portion of
this subserviency may arise, among the younger barristers, from timidity
or misapprehension, without attributing to it a baser motive, more espe-cially
where political questions are involved, where the reputation or
liberty of an individual is concerned, it is impossible to trust to them
;
they win not speak out with decision and fearlessness ; for the conse- ,
quences of doing so stare them full in the face ; they therefore shrink
from the performance of their duty, and rather abandon a man to a dun-geon
than abandon their own hopes of success in their profession ;—not
that the bench should not be treated with all becoming deference ; but
there is a deference due to ourselves, and the cause of truth and justice."
—
Criticisms on tlie Bar, hy Amicus Curice. London, 1819.
g2 THE FORUM.
practice, called upon us, and, with a perfectly natural
interest in the future advancement of his son, inquu-ed
what course we would recommend in order to his success
at the bar. " Your son," was the reply, " has had an
excellent education in literature and in law ; all that
he will require' in order to render his faculties and
learning available, is composure." "Aye," said the
anxious parent, "but how is that to be acquired?"
'' That," we replied, " must depend upon himself, and
upon time and circumstances. He must learn it, as
Peter the Great learned to conquer, by being flogged
and defeated over and over again ; deriving instruction
from every overthrow. In short, he must let no man
be master of his temper, but himself."
But to pass from the Forum, to the etiquette of the
office or chamber, of counsel. Here, wherever you affix
your sign, you must observe the most rigid system
;
your hours of business should be early and regular;
your papers should be preserved in perfect order,
indorsed and labelled ; and when not in use, deposited
under their appropriate letter in your case. This costs
but httle time, and saves much, to say notliing of its
obviating an appearance of neghgence 'and confusion.
Never retke to your bed without having arranged all
your business for the next day. You will then sleep
soundly, and awake cheerfullj^; and cheerfulness is
important in carrying you through the cares and tur-moils
that await you. The mind always works best
ETHICS AND ETIQUETTE. gg
when the heart is at ease. Keep your table always
clear of surplus documents or papers. Any such unne-cessary
accumulation springs from indolence, and pro-duces
distraction. I know the practice in this respect,
among members of the bar, varies greatly. Mr. Lewis's
office was an Augean stable ; Mr. Rawle's was much bet-ter,
but nothing to boast of; Mr. Ingraham's, although
he was a man of system in most matters, was a sort of
omnium gatherum, where you could find everything, and
nothmg. On the contrary, Mr. J. R. Ingersoll's, Binney's,
Sergeant's, and Chauncey's, were models of cleanliness,
neatness, and system. We remember, in referring to
to the difference of opinion and practice on this subject,
a distinguished lawyer and senator of the United States,
from Virginia, who called upon me at my office, in com-pany
with Mr. Dallas. The office table had but few
papers upon it, and he half jokingly observed, " Cer-tainly,
judging from your table, and that of Mr. Dallas,
you must, both of you, do but little business ; you
should see my table; it is covered and piled with
papers, half way to the ceihng."
Punctuality
.
—It has been truly said, that the man
who wants punctuality, wants everything. Keep your
appointments as faithfully as possible. Avoid attend-ing
before your appropriate time, for that is a loss to
yourself; and avoid coming after, for that is a great
loss to others. There are men who ncA^er keep a busi-ness
appointment, except by chance, whereas chances
(34 THE FORUM.
or unforeseen contingencies should be tlie excuse for
breaking tlieni. There are others again, that always
take the half hour grace, as it is called, which may be
grace, but it is not honesty ; for it compels the punc-tual
to pay the debts of the negligent. Grace is in-tended
for religion, and not mere worldly business ; in
the latter it is improperly named—^it should be called
disgrace—^and the man who adopts it will be doomed
to the fate of the foolish yu'gin—ever coming too late,
and being unprepared when he does come. Other
h'.siness, is no excuse; indeed, the truly busy men
rarely attempt such excuses. Want of punctuality is
the vice of the indolent and indifferent, and in youth
it is particularly to be deplored. We have never known
a young man, who practised upon this principle, that
ever acquired any professional distmction. Punctuahty
is not only an important \Trtue in itself, but it is a
voucher for all the other virtues.
Clients.—As to consultation and communication with,
and advice to chents, the mode of receiving and dismiss-ing
them, these are matters so dependent upon cii'cum-stances,
convenience, habits, and tastes, that no sug-gestions
of ours could be serviceable, and certainly none
can be required. Of course, men who confide to you
thek business or then- character—their Hberty or lives
—are entitled, in return, to a patient, generous, and
grateful consideration.
The last subject to which I shall advert, is ;profes-
ETHICS AND ETIQUETTE. 55
sional correspondence—perhaps one of tlie most im-portaht
duties of coimsel, not only as relates to Ms
clients, but Ms bretMen of the bar. A letter should
never remain unanswered, if it be merely to acknow-ledge
its receipt. Great inconvemence sometimes arises
from an omission in tMs respect. The obligations of
duty should be strengthened by a rigid habit, wMch
every succeedmg day will render easier. There are
some men who rarely write, and never answer letters
and their indolence increasmg by indulgence, m time it
will become a labor to write their own names. We
waive all consideration of the neatness of the writing,
folding, and sealing, wMch have formed a subject of
special notice from high authority.*
"When Lord Nelson, off Copenhagen, in reply to a
letter from the governor, took particular care to fold and
seal Ms letter, observing at the time that he must not
appear to be in a hurry, by omitting any ceremonies
;
he had a reason for the course he adopted. But promp-titude
is more deskable than perfumed, bath, or gilt
paper ; and the best impression for the seal is, Instanter.
In these remarks, we have confined oui'selves to
office business or intercourse ; but we may conclude
* Judge Sliarswood's Professional Ethics, "A plain, legible liand-writin?
everv man can m.-ite, tvIio takes pains. A good handwriting is a
passport to the favor of clients, and to the good graces of judges, when
papers come to be submitted to them." .
gg THE FORUM.
by saying, tliat courtesy should not Ibe confined to
place, but should be manifested at all times, and to all
persons,—even to a tribe almost as numerous as the
plague of Egypt, and as great a curse; we refer to
the applicants for subscription to all sorts of books,
and every kind of phantastical experiments. Still,
civility is cheap ; and we should therefore be civil, for
fear we may fall into some error. We remember a
case in point. Passing out of the office in great haste
to attend court, a rather rough though intelligent-look-ing
man, with a large book under his arm, stopped me
on the steps, saying, "I want your signature." "What
is it ?" was the hasty answer, supposing it to be a con-tribution,
or subscription to some literary work. " Some
music," said he, in a half quizzical way. " Well," was
the answer, "walk along with me,—I can't go back,—
•
and as soon as I reach a convenient place, I will sub-scribe.
Accordingly, reaching my grocer's, we walked
in, and, upon opening the book to sign it, I found a check
for a thousand dollar fee ! the signature required was
simply to the receipt. This was music indeed, and of
a most silver sound. Suppose I had treated this per-son
coldly, though I should, of course, have received
the money, I should have made an enemy, besides
having the story reported at my expense.
Having thus referred to the Etiquette of the Bar,
strictly so called, allow us to bestow a passing notice
upon the students of law, who at least require some
ETHICS AND ETIQUETTE. Q'J
attention. The young gentlemen who have assumed
the to^'a candidus, that is to say, who have become can-didates
for admission to this highly honorable profes-sion,
should bear with them the constant recollection,
that it requires more than the perusal of books in order
to their becoming accomphshed practitioners. Civility
and politeness should also be part of their learning.
Engaged as they are in their studies, in the receiving
room of their preceptor, they are necessarily brought
into contact with the clients and members of the bar.
They partake of some of the privileges of the counsel, and
also share in some of his obligations. In this position
they should be careful to manifest proper attention to
those who call; to observe due ceremony towards all, and
especially to the aged ; in short, never to forget that they
are gentlemen. You can generally tell the preceptor
by the pupil, and they mutually suffer for each other.
In some of&ces, a visitor is furnished with a chair;
kindly informed when his turn comes for admission to
the sanctum of the ofS.ce, or, if the principal is absent,
when he will return; thus contributing to. the com-fort
of the client, and making him comparatively at
home. In other offices, the students will be found
loungiag on the settee or their chairs, with their feet
above their heads ; never rising when they are ad-dressed;
apparently offended at being interrupted, and
returning short and surly answers to the most kind,
respectful, and natural inquiries. This is not the worst
gg THE FORUM.
of it. The tree afterwards inclines to tlie bent of the
twig. Their roughness grows upon them, and they are
never able to acquire that gentleness and sympathetic
kindness that should belong to the profession, and
which was so invariably displayed by the late Charles
Chauncey, who, in this respect, and indeed m all others,
was an admirable model for imitation. His practice
was among the largest at the bar ; and it was as much
^attributable to liis cordial manner, as even to his emi-nent
legal abilities.
A churlish student never acquires a large practice
;
while, on the contrary, blandness and courtesy of de-meanor
enhst the affections of those with whom we are
in habitual intercourse ; and if they do not always in-dicate
great learning, they at least adorn that which
we possess. If, therefore, your natural good feelings
will not teach this lesson, let your future hopes become
the inducement.
Thus much for your reception of clients. As to the
preceptor himself, there is Httle to be said. If, by his
own example, he has not taught you to respect others,
he has no right to complain, if he himself is not re-spected.
Observe neatness, and system, and care with your
books. After having finished with them, return them
u.ninjured to their proper places. Keep the office and
the papers confided to you, in order. Dehver the let-ters
or documents of wliich you are the messengers,
ETHICS AND ETIQUETTE. gQ
23romptly—delay nothing. Tlie biographer of Burr,*
states that his rule was, never to do to-day, what might
be done to-morrow ; it is a much safer rule not to post-pone
what can be done this moment, to the next. No
one can command to-morrow ; and, certainly, in regard
to important professional concerns ; " We know not
what a day may bring forth." A fortune may be lost,
—reputation may be lost,—life itself may be lost,
—
by the neglect of improving a single hour ; and what
is the remorse, and where is the consolation for your
own voluntary neglect, to which all these evils may be
justly attributable. Ethics and etiquette combine in
enjoining promptitude and attention.
So much for the relations of Counsel and Client
some further notice is due to the relative position of
Counsel and Court.
Private interviews of counsel with the Court, in order
to make private or exparte statements, or to endeavor
to impress their views, is undoubtedly wrong, and tends
to corrupt justice. So, to send, or authorise chents, to
have such interviews. No gentleman will adopt this
course ; it is unfaithfulness to the Court. But it is not
unfrequently invited by the Court itself Judicial
ethics must not be lost sight of. What client ever
* It is also stated of Napoleon, that he at times allowed letters to remain
tinopened for days ; and assigned as a reason, that time answered one
third ; one third required no answer, and the remainder deserved no
answer.
70 THE FORUM.
spoke to Judge Waslimgton or Judge Tilghman ?
When judges read newspapers on the bencli, and con-sult
with reporters during a trial, or confer with tip-staves,
or advise parties, or receive private complaints
against counsel, they invite to every evil, that is thus
reprehended. The judge has no right to hear anything
of a cause out of Court, and he can always prevent it;
and if he do not prevent it, he encourages it.
That counsel are bound to support the Court in its
proper province, when it comes in conflict with the
jury, no lawyer will deny. But counsel are equally
bound to resist an encroachment by the court upon
the proper province of the jury—fidelity to the client
demands it. The judge may lay down the law cor-rectly,
and the jury is bound to conform to it ; but no
judge has the right to determine upon the character of
the witnesses, the weight of the testimony, or the ap-phcation
of the evidence submitted to the jury. If
the court leave, as they are bound to leave, the facts
to the jury, telling them, that if they find them in one
way, theu' verdict should be for plaintiff—if another
way, for defendant, the verdict ought to stand, un-less
the law be erroneously laid down, or injustice
manifestly done, of which, when convinced, a new
trial may be granted, and all injustice avoided. If the
judges broadly decide that the plaintiff or defendant
cannot, in point of law, succeed upon the facts proved,
they encroach as much upon the rights of the jury, as
ETHICS AND ETIQUETTE. 7]_
the jury encroaches upon the Court, by finding a ver-dict
against the law—both would be wrong. The lat-ter,
however, might be remedied much easier than the
former.
In some cases the counsel may say, " he does not
ask a verdict against the charge of the Court ;" but
there are cases in which his course should be different.
Suppose, according to his view, the charge should be
grossly wrong—the amount in controversy large—^he
is concerned for defendant; if the verdict go against
him, he is to carry up the case—give security for more
than he is worth—toil through years of anxiety and
delay—afterwards encounter difficulties as to the facts
out of which the law arises, or as to the character of
the witnesses from whom they are derived. Are these
no reasons to forbid a time-serving acquiescence in the
views of the Court; which he believes to be WTong ?
Was this Erskine's doctrine in his conflict with BuUer?
It is such deference as this, that has done more to
break down the independence of the bar, than all
other causes combined.
As to the morality of pleading the Statute of Limi-tations,
a word should be said,—this plea is authorised
by law, and has the sanction of reason. The statute
rests upon the probability of payment—death, destruc-tion
of papers, loss of receipts, &c. The lawyer has
the right to rest upon this presumption, furnished by
his own science; nevertheless, if he actually knows
72 THE FORUM.
that tlie note is due, unless there he some statute
against conscience, he had better not undertake the
case. A lawyer that would maintain such a defence,
would file such a plea to avoid the payment of a debt
known to be just.
As to suits for fees—the Homan and English advo-cates,
it has been said, consider it dishonorable to sue
for fees. The Romans get their fees beforehand, in the
shape of gifts, and therefore this honorable doctrme
costs them nothing. The Enghsh barristers ' receive
their fees from the attorney, before they enter upon
their duties.
Perhaps the better course is, to make the rich pay,
and let the deserving and impoverished poor, the indi-gent
widow and helpless orphan go free. Not only do
not ask, but do not consent to receive fees from them.
The Lord is their treasurer, and will pay their debts
abundantly.
As to contingent fees—Judge Sharswood says, that
contingent fees, depending by agreement upon final
success, are altogether indefensible, at least in all ordi-nary
cases. And Judge Eogers has declared, that the
practice that has obtained of contingent compensation,
has been a subject of regret.
Certainly, contingent fees are generally and properly
condemned, but should not be imiversaTly condemned.
The first men at this, or any other bar, have received
them, but in peculiar circumstances. I remember an
ETHICS AND ETIQUETTE. •j'g
action brought for a valuable square of city property
—
the claim was surrounded by great difficulties, and
liable to heavy expense. The claimants were destitute.
Where was the moral or professional impropriety, in
stipulating that in case of recovery, the counsel should
receive ten or twenty per cent, of the land, as a re-quital
for theu^ services and expenses ? What can be
the objection, on the score of morals or professional
honor, to this mode of securing a just compensation ?
It is much more honorable, than to refuse to bring the
suit because the client cannot pay a fee.
There never was an eminent judge on the bench,
who previously had been eminent at the bar in this
country, that has not received contingent fees. In
fact, fees are always more or less contingent ; first, it
is a contingency sometimes whether you get them at
all—then the amoimt must somewhat depend upon
the extent of labor, and lastly upon its success. A
lawyer rarely charges, and never receives, as much
for failure as for success. The old practice of paying
beforehand does not now exist, and when it did exist, it
was not as advantageous to the client as the present
system of professional compensation, and it was much
more humihating to the counsel.
How far it may be judicious to sue for a fee, may
be questionable, and must depend upon circumstances.
We do not consider it to be dishonorable to resort to
the law to vindicate a meritorious and just claim—it
VOL. II.—
6
74 THE FOEUM.
may not be eligible. It does not degrade the bar to
maintain its legal rights. It is a strange doctrine, that
the law will vindicate the rights and redress the wrongs
of all but her own immediate family—her own children.
This is to encourage wrong against them, and to make
their suffering more than equal to their honors. Judges
receiving stated salaries, and an elective judiciary,
somewhat dependent upon the favor of the people,
may very safely and complacently advocate this doc-trine;
but it is pernicious in its influence upon the
character and interests of the profession.
A member of the bar may refuse, and often does
refuse, to receive a fee when he is entitled to it ; that
is charitable—^it is honorable : but where is its charity
or honor, when he is told that it is virtually optional
with the client to pay him or not. The doctrine con-tended
for unsuecessfuUt/ in the case of Mooney v.
Lloyd, 5 Sergeant & Rawle, 412,=^ (though afterwards
adopted,) is the true doctrine upon the subject.
The last matter in this rambling essay that I beg
leaA^e to present, before recurring to the series of pro-fessional
portraits, is the present mode of administering
* A suit cannot be sustained by a gentleman of tbe bar against bis
client, for a compensation for services over and above the attorney's fee
allowed by act of assembly. But if tbe client gives a note or bond for
such compensation, an action lies thereon. Physicians may sue for their
fees. Contra, Gray v. Brackenridge, 2 Pennsylvania Reports, 181. Foster
V. Jack, 4 Watts, 337. Adams v. Stevens, 26 Wendell, 451.
ETHICS AND ETIQUETTE. '75
oatlis in courts of justice^ as impairing the sanctity of
the obligation, and the solemnities of judicial tribunals.
The very foundation of justice rests upon the oaths of
witnesses and juries; yet hmo are they admuiistered?
not, as in some of the courts of Great Britain, by the
dignified oflacer of the Court, but by some blundering
subordinate, who runs over the ceremony in a manner
neither inteUigible to others nor himself. What sanctity
can there be in such an obligation? The jury are
huddled hurriedly together, especially in our criminal
courts, like sheep in a pen—all is haste and confusion,
and in the hurly burly, the great object of their pro-ceedings
is lost sight of. A well-behaved dog should
be tried with more ceremony. The tip-staves are
bawling, children crying, the judge scolding, the dis-trict
attorney grumbling, the clerk taking recognizances,
the sheriff calling the jury, the defendant making his
challenges, the crier calling the witnesses, the deputy
is talking to the Court, the grand jury have just been
into Court, and in the midst of all this uproar, oaths are
administered. Now imagine such a scene as this, and
then tell me, whether this is a Court of Justice
—
or a
rout. It is in vain to say that these matters cannot be
managed better—order is nature's first law. Why not
at least make an effort to establish some system, that
will combme comfort with propriety, and at the same
time conduce to the promotion of justice ?
CHAPTER IT.
HENRY BALDWIN, L.L.D.,
ASSOCIATE JUSTICE OF SUPKEME COURT, UNITED STATES.
BORN, 1777—DIED, APRIL, 1844.
Judge Baldwin was the successor of Judge Wasli-ington,
and received his appointment on tlie 6th day
of January, 1830, from President Jackson, to whose
cause he had always been devotedly attached. It was
understood when Mr. Baldwin was invited to Wash-ington,
after Jackson's election, that it was the inten-tion
of the President to appomt him Secretarj^ of the
Treasury. Jackson, however, with all his infirmities
of temper, was a man of cool and discriminating judg-ment,
and a moment's reflection convinced him, that
from the views entertaiaed by Baldwin on the subject
of the tariff, an uTeconcilable difference of policy
would be the consequence of such an appointment.
The result was that the Treasury was given to Samuel
D. Ingham, whose notions were supposed to be more
HENRY BALDWIN, L.L.D. fJ>J
congenial with those of the Executive. Jackson, how-ever,
was not a man to overlook either his friends or
his enemies, and he seized the first opportunity of
requiting the fidelity of Baldwin, by appointing him,
without sohcitation, the successor of the lamented
Washington, upon the bench of the Supreme Court of
the United States.
Hemy Baldwin was born in New England, and be-came
a gi^aduate of Yale. He removed to Pennsylvania
in early life, read law with A. J. Dallas, and was admit-ted
to the bar on the 6th of March, 1798. He was in
fuU practice for many years in the city of Pittsburg,
where his business was very extensive, and his cha-racter
for rectitude, talents, and legal learning, distin-guished
and imblemished. His industry was most
untiring, and his zeal in behalf of his chents deserving
of the highest praise. Even in CongTess, to which the
suffrages of his feUow-citizens elevated him, and where
he continued for years, he exhibited the same business
tact, the same powerful grasp of his subject, and the
same unremitted fidelity to his duties, for which he
had always been renowned, giving a practical refuta-tion
of the doctrine, that lawyers are never remarkable
as statesmen, or distinguished in legislative or national
councils. Our business with him, however, relates to his
character as a Judge ; and assuredly no judge that ever
sat upon the bench in this country was subjected to a
severer test than that to which he was doomed.
78 THE FORUM.
He was the successor, as has heen said, of Bush-rod
Washington, who had held his post for thirty
years, with the admiration and approval of all who knew
him. Any man to succeed Mm, without thorough
competency, would have suffered so much by the
comparison, or contrast, as to have been utterly de-stroyed.
Judge Washington, though a most unostentatious
man, always paid due observance to those forms which
appertained to his judicial office, and which had received
the sanction of centuries. The city of Trenton belonged
to the third district; and there the practice had always
prevailed, of the Marshal and his attendants, with the
appropriate symbols of their office, receiving the Circuit
Judge upon his arrival to open the court, in order to
escort him to liis lodgings, and thence to the Court.
After the death of Judge Washington, his successor,
Judge Baldwin, was thus received and attended upon to
his lodgings, where he was waited for until he Avas in
readiness for Court. Upon coming out, instead of ap-pearing
to appreciate the ceremony, he turned face-tiously,
and with apparently great simplicity, to the
assemblage, and exclaimed, in seeming surprise—"Why
what's the matter, boys—what are you doing with all
these sticks ?" This, of course, was the death of this
time-honored custom.
The judicial manners of Judge Baldwin were cer-tainly
not equal to those of his predecessor. This could
HENRY BALDWIN, L.L.D. yg
scarcely be considered a reproacli, for certainly, in that
respect, Washington had no rival ; hut the amiahility,
kindness, and generosity which Judge Baldwin always
displayed, contributed very much to lessen the dis-parity
; and the profoundness of his legal learning, and
his indefatigable devotion to his duties, were such as in
a measure to compensate the public for the bereavement
they had sustained. A kinder and more conciliating
judge, and one who had stronger sympathies for the bar,
or tenderer consideration for its youthful aspkants,
rarely, if ever, graced any bench. Towards the close of
his life, the severity of his studies, and some unfortunate
speculations, by which he had become embarrassed,
materially affected his physical health, through which
his temper was rendered somewhat more irritable, the
equanimity of his mind disturbed, and the. serenity of
feehngs temporarily overcast. Few men, however,
under similar annoyances or afflictions, would have
manifested equal philosophy or fortitude.
As an advocate, prior to his appointment to the bench,
though prominent in his own district, he was but httle
known, except by reputation, in the Eastern District of
the State. He had, however, upon several occasions
been engaged in important cases in this city, and in the
language of John Sergeant, (who was generally engaged
with him,) it might be truly said, " He was a powerful
man, and never struck a blow without leaving his mark."
In the year 1844, after lingermg for some months,
80 THE FORUM.
and with very little hope entertained of his recovery,
he passed to that "bourne whence no traveller returns."
Few men during his time were more identified with
the history or interests of Ms State. Few men to great
learning united greater simphcity of demeanor; and few
men, as citizens, lawyers, orjudges, were more highly ap-preciated
while Hving, or more deeply deplored in death.
Judge Baldwin was a man of sturdy frame, some
five feet ten inches high, dark complexion, round and
agreeable face, indifferent but not careless in his dress,
and of the most open frankness, familiarity, and cordi-ahty
of feehngs. He was not, perhaps, calculated to
shine in the circles of fashionable life, although his
manners were exemplary, but he was calculated to
shine in those higher spheres in which, mere fashion-able
life, never dared to show itself. He was a great
man among great men, and among the humble he was
the humblest. Content with the riches of his own
resources, and the permanency of his own fame, he had
no occasion to envy others ; and instructed by his own
difficulties, in the obstacles to advancement, he looked
with commiseration and charity upon all those who had
attempted it in vain.
He had been brought up in a rough school, but there
was still much unction in his manners ', it could hardly
be otherwise, from his naturally amiable feehngs. That
is a merit which education rarely gives, and still more
rarely takes away. He had been poor, rich, and poor
HENRY BALDWIN, L.L.D. g;^
again, and from all these conditions had derived im-
'provement. He was disposed to be indolent, but be-came,
by persevering habit, a man of untiring industry.
He was unhappily, like Lewis, addicted to the vice of
smoking excessively—a great fault in a lawyer, and
much greater in a judge ; and there is but little doubt,
that although it might at times have been matter of
enjoyment, at others it subjected him to considerable
annoyance, and probably eventually led to his death.
These views perhaps require explanation :—a con-firmed
smoker or opium eater becomes nervously irri-table,
when deprived of his indulgence. Of course, a
judge cannot smoke on the bench, and he is rendered
uneasy, inattentive, and sometimes petulant. In this
respect chewers and snuff-takers have a great advan-tage,
as any one will perceive who notices the relative
effects of tobacco, with regard to those diiferent uses,
upon the judiciary. The man who can avoid them all,
may felicitate himself (and congratulate others,) in
having escaped these physical evils, and their conse-quent
pernicious influence upon the composure and
equilibrium of the mental structure.
Judge BaldwiQ was a man of great sensibility, and
was particularly alive to his judicial character. Perhaps
he had too great a desire for the approval of others, in
which he differed widely from Judge Washington,
who seemed utterly dependent upon his own scrupu-lous
convictions of right; who would not have flat-
82 THE FORUM.
tered " NeiDtime for his trident, nor Jove for Ms power
to thunder ;" and to whom, the syi^en voice of popular
favor was matter of total indifference. If he ever desii^ed
popularity, m the language of Lord INIansfield, it was
" that popularity that folloivs, not that which leadsr
It has been said, that during the last four years of
liis judicial hfe, the health of Judge Baldwin was ma-terially
impaired, which was somewhat produced by
habitual smoking, but much more by personal trou-bles
and anxieties. Even the mind, through the me-dium
of a disordered nervous system, for a short time
seemed to lose its balance, and to share in his physical
infirmity. But it was so ordered by the beneficent Cre-ator
of earth and heaven, that with this tendency, his
temporal career was not so prolonged as to substitute a
drivelling state of mental chaos, for the glories which
he had garnered up, and the spotless temple which he
had erected by his honesty, industry, and intellectual
wealth.
Heaven forbid that his frailties should be " dragged
from then- dread abode," to be exhibited unnecessarily
to a censorious world. But to show how jealous he
was of his judicial reputation, even when his faculties
were under a temporary shadow, but a short time before
his death, at the close of the day's session, taking a
member of the bar by the arm, he requested him to
go with him to his chambers. While there. Judge
Baldwin manifesting great nervous agitation, turned
HENRY BALDWIN, L.L.D. 33
to his companion with a very anxious countenance,
and said, "I think I have heard you observe, that
there is scarcely any occurrence or incident of life, of
which Shakspeare in the universahty of his genius, has
not expressed clearer and more satisfactory views, than
can be found in any, or in all other writers combined."
"Why," said his friend, "the whole world s&js that, and
you must not give me as its author." "Well, then," re-joined
the judge, " can you point me to any passage of
the poet, in which he expresses an opinion of the case
which I shall now state ? A dissenting opinion was
delivered by one of the judges of the Supreme Court
at Washington, which was erroneously reported in re-gard
to its principles, ui the ensuing volume of United
• States Reports. The judge spoke to the reporter, and
explaiaed to him the errors, which the reporter pro-mised
to correct in his subsequent Reports; when,
strange as it may seem, the next volume, instead of
containing the promised correction, reasserted the cor-rectness
of the opinion as originally reported. Now,
sir," said the Judge, his eye lighted up with indigna-tion,
" can you furnish me, from Shakspeare, with any
expression or sentiment reprobating conduct so unwor-thy
as that ?" The person to whom he thus addressed
himself knowing something of the difference between the
judge and the reporter, and desirous of avoiding further
colloquy, rephed, " Certainly, I can show you passages
that condemn the whole series of The U. S. Reports."
84- THE FORUM.
The Judge was delighted—handing down f