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the jury and of the judge, and determine what shall be the effect of evidence,— what shall be the result of legal argument. As it rarely happens that a man is fit to plead his own cause, lawyers are a class of the community, who, by study and experience, have acquired the art and power of arranging evidence, and of applying to the points at issue what the law has settled. A lawyer is to do for his client all that his client might fairly do for himself, if he could. If, by a superiority of attention, of knowledge, of skill, and a better method of communication, he has the advantage of his adversary, it is an advantage to which he is entitled. There must always be some advantage, on the one side or the other; and it is better that advantage should be had by talents than by chance. If lawyers were to undertake no causes till they were sure they were just, a man might be precluded altogether from a trial of his claim, though, were it judicially examined, it might be found a very just claim."
Cicero, in discussing the same question, speaks with more hesitation: "This precept of duty is to be carefully obeyed, never to prosecute an innocent person on a charge of a capital crime, for this cannot be done without guilt, whatever agreement may be made. Nor, the less, as this is to be avoided, is it to be held a sacred duty, to defend a guilty man sometimes; only not if he be nefarious and impious. This the majority of the people desire; usage permits; humanity even urges. is the part of a judge always to pursue the truth in causes heard before him; of an advocate (patroni)
sometimes to defend what looks like the truth, even if it be less than true."
It must always be remembered, not only that every man who is sued in court must be heard in defense, unless he waives it, or acknowledges that he is in the wrong, but that he can only be heard to good purpose, through a lawyer.
Hence no one at the English bar can, without the approval of the benchers, refuse to accept a retainer for the defendant in a criminal cause. For the American bar there is no such rule, but the reason for it equally exists. It controlled, in a noted instance, the professional conduct of William Wirt, afterwards Attorney General of the United States. In 1806, George Wythe, a signer of the Declaration of Independence, and Chancellor of Virginia, lived in Richmond, and a nephew named Swinney, to whom it was known that he had left most of his property by will, was one of his family. One morning Swinney came into the kitchen and in the presence of a negro cook, dropped what she described as something white in the coffee pot. The Chancellor soon after breakfast became violently ill, with symptoms of arsenical poisoning. A man servant drank of the same coffee and died with similar symptoms. The coffee grounds were thrown out in the back yard, and some chickens which ate them died. An examination by chemists showed the presence of arsenic in the coffee grounds, in large quantity.
1 Cicero, De Officiis, Lib. III, Cap. 14.
The Chancellor lived long enough to alter his will and revoke its dispositions in favor of his nephew, who was soon afterwards indicted for murder.
Swinney's mother applied to Wirt to defend him. He took counsel with one of the judges of the State, who advised him strongly to do so, and said that he ought not to hesitate a moment. He accepted the retainer and appeared for the accused.
There was a perfect defense. The law of Virginia at that period excluded the testimony of negro witnesses when offered against a white man. The negro cook was the only witness that could connect Swinney with the crime. She being excluded, the jury, when the case came on, rendered a verdict of acquittal.1
Wirt was right. If Virginia then had an ill-considered statute, which prevented the State from offering legal proof of the guilt of the accused, the defense was perfect. Swinney could have honestly raised that point, for himself, had he known what every lawyer knew, namely, the objection to the evidence and the proper manner of taking advantage of it. Not knowing these things, he was entitled to ask the aid of those who did.
But such a case as that is extremely unusual. In most matters in which counsel are asked to engage, there may well be a difference of opinion as to the rights of the parties. Plain cases are seldom tried. In every legal controversy there are apt to be some points favor
1 Kennedy, Memoirs of William Wirt, New York, 1872, Vol. I,
able to the plaintiff and some favorable to the defendant. It was the remark of an eminent English lawyer of large experience that men usually imagine that all law suits are either black or white, whereas the great majority are neither black nor white, but gray.
There are many also as to which an impartial eye can see that they can fairly be decided for either party, though to each of them an adverse judgment would look like the rankest injustice. A lawyer is naturally inclined to share his client's point of view. Once in a cause he is apt to grow more and more confident that it is a meritorious one. He studies it from the position of an advocate. His mind becomes, as to this subject of discussion, more and more identified, so to speak, with that of his client.
Joubert said that it is a great disadvantage in a disputation to be impressed with the weakness of your own claims and with the strength of those of your adversary. The lawyer seldom finds himself in such a position. He looks at things through his client's eyes. He has thought over his points, till they seem convincing, and found an answer of some kind to every contention which he thinks likely to be put forward by the other side.
All civilized nations have not created the legal profession, and created it as soon as they even approached civilization, without a real justification for it.
1 Pensées, No. 639, “C'est un grand désadvantage, dans le dispute, d'être attentif à la faiblesse de ses raisons, et attentif à la force des raisons autres."
would be none, if its members were expected to be cheats and liars. As Coleridge has said, in his Biographia Literaria," it would be a sort of irreligion, and scarcely less than a libel on human nature to believe that there is any established and reputable profession or employment in which a man may not continue to act with honesty and honor."
2. The Tendency of the Legal Profession to Foster a Spirit of Roughness and Antagonism
Habits form character. A lawyer risks becoming hypercritical; first a fault-finder in court and then at home. He must learn not to treat any legal controversy as his own. Nor every hostile witness as a liar.
A man's intellectual habits are a large part of him. They go far to determine the quality of his life, and its success. In forming them, then, he should be careful to avoid any that would militate against his own happiness or that of others. In choosing a calling, he should carefully consider what, if any, will be its effect in this direction.
Law is a science of reciprocal relations. Those who cultivate it are naturally led to draw fine distinctions, and will often have to choose between opposite opinions. These will require critical examination and close comparison.
A lawyer, in the ordinary course of his practice in court, is continually questioning or denying the soundness of the propositions put forward by his professional opponent. There is always danger that a habit of mind