Изображения страниц

there was no written law of Rome against adultery, did he nevertheless break an eternal law when he offered violence to Lucretia. For there was a reason proceeding from the nature of things, impelling to the right and dissuading from the wrong, which in fine begins to be law not when it is written, but when it originates. But it originates simultaneously with the divine mind. Wherefore the true and chief law apt for commanding and obeying is the unswerving reason of highest Jove." 1

Law as administered by lawyers, is something narrower than this. It consists of rules of human conduct which organized political society recognizes and undertakes to enforce. But the soul of this law is not force but right. Law in human society is made for man. It is made for beings having in every country-considered as a mass - certain general notions of moral justice. These notions are the unwritten constitutions no positive law violating which can long endure.

The same thing is true of custom, and of judicial decisions supporting custom. If they are contrary to moral justice, the day will come when they will be abrogated, if not by legislation nor by disuse, then by the courts themselves.

Standards of social approval, in respect to law in all its senses, may change from age to age. If antiquated morality and antiquated law do not disappear together, one does not long survive the other. As Sir Frederick Pollock has remarked, "Legal justice aims at realizing

1 Cicero, De Legibus, Lib. II, Cap. 4. Cf. ibid. Lib. I, Cap. XV, quoted infra, on page 147.

moral justice within its range, and its strength largely consists in the general feeling that this is so. Were the legal formulation of right permanently estranged from the moral judgments of good citizens, the State would be divided against itself." 1

The power of recognizing and enforcing law in the United States is vested in the courts. Our legislatures make part of this law; the customary rules of conduct approved by the community, and accepted by the judicial authority, make another and greater part. For ascertaining what it is at any particular time and how it applies to any particular case, the decisions of the courts are the ultimate authority. The more important of those rendered in each State and in the United States are officially published from time to time, under the name of "Reports." They constitute in each case the ground of a judgment which secures the termination of a controversy in a particular manner ordered by the courts, after hearing from lawyers representing each of the opposing parties. They are often substantially an adoption of the line of reasoning presented at the bar on one side or the other. It is the function of lawyers to put their clients' cases before the court, and that of the judges to dispose of them according to law.

Human experience has shown that judges need the help of lawyers to aid them in coming to just conclusions. Hence in most of the United States there is no right to practice law except by a grant or license from

1 Pollock, First Book of Jurisprudence, London, 1896, p. 31.

the State. Such a right is in the nature of a public franchise.1

In England, for centuries, men had to plead their own causes. If one who was ignorant or tongue-tied! sued or was sued, he must nevertheless speak for himself. His adversary had a legal interest in the disadvantage due to his failings in these respects.2

It was found that this was not seldom the occasion of great injustice. Gradually the law was changed, and it became first the general rule and afterwards the universal rule, that parties to a lawsuit, whether it were civil or criminal, had the right to appear by counsel. Regulations were also adopted to secure to those who desired to enter the bar adequate opportunities for learning the law, and to require of them proof of good character, to be established by the favorable opinion of those already admitted to the profession.3

From the days of the earliest settlements in the United States, it has been generally recognized here that the institution of the bar made for good government. It promoted justice, and the lawyer was therefore given a certain status in the official organization of the judicial department. Every American lawyer is a minister of justice. He is an officer of court as fully as the Judge on the bench, or the sheriff who preserves order in the proceedings, or the clerk who records

1 In re Co-Operative Law Co., 198 New York Law Reports, p. 479; 92 Northeastern Reporter, p. 15.

2 Maitland and Montague, edited by Colby, A Sketch of English Legal History, New York and London, 1915, p. 94.

3 O'Brien's Petition, 79 Connecticut Law Reports, p. 46.

them. He has a longer tenure of office than any of them. He holds for life. He never need retire, and never can be recalled, except as the court may disbar him, after a hearing, for some grave offense.

He may, however, be censured by the court, or otherwise subjected to discipline which stops short of disbarment. In arguing a cause, he must conform to the proprieties of the occasion and the settled rules of judicial procedure. As an officer of the court he speaks in a certain sense by its authority, and always in its presence. It is the duty of the Judge to interpose if he abuses his privileges by urging considerations obviously foreign to the cause, or invoking prejudice instead of reason. Such a course may not only call upon him a rebuke from the bench, but cost his client a verdict, should he afterwards obtain one. There are words and appeals which, once uttered to a jury, do their work on the instant beyond all power of remedy.1


It has been sometimes said that the existence of lawyers made men litigious. To one who feels that he has been wronged, the power to get the opinion of a competent and disinterested adviser as to whether he has been or not and, if it be favorable to his claim, the opportunity to have it presented in proper form for the consideration of a court, certainly increases the number of meritorious actions brought. It probably

1 See Hennessy vs. Metropolitan Life Ins. Co., 74 Connecticut Law Reports, pp. 699, 708-710.

2 See a discussion of this subject in Cicero, De Legibus, quoted infra on page 151.



Set up and electrotyped. Published, January, 1920

« ПредыдущаяПродолжить »