1

the basest and most mercenary gain. The king immediately sent a message post-haste back, confirming the order of the parliament, and enjoining the advocates on their allegiance to obey it. Those who had stripped off their gowns, were, at the same time, commanded to resume their profession. The refractory barristers did not dare to disobey the royal mandate, but returned to their duties, and thus the tumult was appeased. The law, however, as De Thou informs us, soon afterwards fell into desuetude. Fournel, in his narrative of this contretemps, tries to make out that the advocates were successful in their resistance, and that the king gave way. This, however, is a mistake. With a pardonable zeal for the credit of his order, he represents the royal commands to the barristers to resume their gowns, as a privilege accorded to them of practising, notwithstanding that they had, by their own act, disbarred themselves. And he thus infers, that as no evil consequence resulted from their contumacy, the king never intended the ordinance to be obeyed.2

1 Such is the account given by De Thou; but it is not easy to see how the modesty of the bar was affected by this law, unless indeed the amount of fees was so large that the fortunate recipients were too bashful to acknowledge the high price at which their services were valued. Meyer however says, "Le refus des avocats au parlement de Paris de se soumet. tre à une taxe, était non seulement noble, mais beaucoup plus dans l'intérêt des parties, que les ordonnances mesquines qui, sous prétexte de veiller à des exactions, décréditent la pratique judiciaire, et laissent le public en proie à l'avidité des patriciens subalternes."— Inst. Jud.vi. 554. 2 Histoire des Avocats ii. 394.

CH. X.]

FORENSIC CASUISTRY.

427

CHAPTER X.

FORENSIC CASUISTRY.1

Judicis est semper in causis verum sequi; Patroni nonnunquam verisimile, etiam si minus sit verum, defendere. . CICERO.

A WORK which professes to treat of the office of an advocate, would be incomplete if it did not embrace what we may call the ethics of the question, and examine how far it is consistent with morality and good conscience, to be ready to espouse either side of an argument, to lend the aid of great abilities to shelter guilt from punishment, and become the consenting instrument whereby malice and iniquity are too often enabled to accomplish their designs.

For doubtless it does seem a startling fact, that there should exist in the community a body of men, preeminent in intellect, and held in honour and esteem, whose occupation it is to employ all the resources which wit and learning can supply, in advocating whatever cause they are paid to undertake, and in specious and plausible attempts to make the worse appear the better

The subject of this chapter has been discussed with much earnestness and deep religious feeling in a posthumous work by the late Edward O'Brien, which appeared a few years ago, called "The Lawyer, his character and rule of holy life." The author adopts a lofty standard, and tries the profession of the law, of which he was himself a member, by a severer test than is usually applied to it. It is impossible, however, to read the book without admiring its pure morality and uncompromising tone.

side; who throw the shield of their eloquence over the innocent and the guilty alike; and whose most signal triumphs frequently consist in arresting the arm of justice, when public expectation demands that it should strike the offending criminal.

If a traveller from Atlantis or Utopia were told that the man to whom he has lately been introduced — and who conversed with him so wisely and so well upon some of the deep questions in ethics and religion—who seemed to be an earnest inquirer after truth whose character stands high for integrity, and whose friendship is valued by all who know him - did, after quitting his society, immediately proceed to invest himself in a particular costume-and then in the solemn temple of justice, successfully attempt to convince a jury that a culprit arraigned on the charge of murder, of whose guilt he had not himself the shadow of a doubt, was innocent, and afterwards, within a brief interval, exert all his ingenuity to prove that a will, by which a family would be disinherited and reduced to beggary, was valid, though in his own mind he was satisfied that the testator was at the time of the execution of it, insane we may imagine the surprise and incredulity of the stranger, and how far from easy it would be to explain to him the apparent inconsistency.

The case is here stated strongly, for it is better not to conceal or disguise the difficulty. The venality of lawyers has been a favourite theme for declamation in every age, and in pagan Rome and Christian England alike, has afforded ample materials for satire and reproach. In the following lines Ben Jonson has drawn a picture which few, I fear, will have charity enough to pronounce a caricature:

CH. X.]

BEN JONSON, HALL, AND SWIFT.

I oft have heard him say how he admir'd
Men of your large profession, who could speak
To every cause, and things mere contraries,
Till they were hoarse again, yet all be law :
That with most quick agility could turn
And return, make knots and undo them,
Give forked counsel, take provoking gold
On either hand, and put it up.

These men

He knew would thrive with their humility

And for his part he thought he should be bless'd
To have his son of such a suffering spirit;

So wise, so grave, of so perplexed a tongue,

And loud withal, that could not wag, nor scarce
Lie still, without a fee.1

429

And Bishop Hall thus disports himself in verse at their expense::

Woe to the weale where many lawyers bee;

For there is no such store of maladie !

'Twas truly said, and truly 'twas foreseene
The fat kine are devoured of the lean."

So fair a mark for sarcasm was not likely to escape the caustic pen of Swift, who accordingly, in the voyage to the Houyhnhnms, makes Gulliver tell his master, the Grey Horse, that "there was a society of men among us, bred up from their youth in the art of proving, by words multiplied for the purpose, that white is black, and black is white, according as they are paid. To this society all the rest of the people are slaves. It is likewise to be observed, that this society has a peculiar cant and jargon of their own, that no other mortal can understand, and wherein all their laws are written, which they take especial care to multiply; whereby they have wholly confounded the very essence of truth and falsehood, of right and wrong, so that it will take thirty years to decide whether the field left 1 Volpone, or the Fox. • Virgidemiæ, or Satires.

me by my ancestors for six generations belongs to me or to a stranger three hundred miles off........ Here my master interposing, said it was a pity that creatures endowed with such prodigious abilities of mind as these lawyers, by the description I gave of them, must certainly be, were not rather encouraged to be instructors of others in wisdom and knowledge. In answer to which, I assured his honour, that, in all points out of their own trade, they were usually the most stupid and ignorant generation amongst us1, the most despicable in common conversation, avowed enemies to all knowledge and learning, and equally disposed to pervert the general reason of mankind in every other subject of discourse, as in that of their own profession."

Nor is the charge against them of moral obliquity confined to England. M. Cormenin, better known perhaps under his assumed name of Timon, in one of those brilliant sketches, entitled, Etudes sur les Orateurs Parlementaires, thus scoffs at the idea of any fixed principle, or moral sense in an advocate. "We are told that M. Sauzet has no principles: but pray inform me where is the advocate to be found who has principles? When one has been employed for twenty years of his life about the true and the false-and been occupied only in stitching up, as he best may, the holes in the coats of clients, through which their fraud and malice find vent, it is difficult, - nay, impossible, to have any fixity of principle.”

Such passages might be easily multiplied; but it would be an ungracious task, and it is impossible to read the current literature of the day, without seeing how prevalent is the opinion, that the profession of an advo

1 "Vous en ferez, je crois, d'excellents avocats:

Ils sont fort ignorants."— Les Plaideurs, Act. ii. Sc. 14.