Part 4 (1/2)

CHAPTER IX

The foregoing chapter will have shown sufficiently how largely in one great and necessary profession the element of moral compromise must enter, and will show the nature of some of the moral difficulties that attend it. We find ill.u.s.trations of much the same kind in the profession of an advocate. In the interests of the proper administration of justice it is of the utmost importance that every cause, however defective, and every criminal, however bad, should be fully defended, and it is therefore indispensable that there should be a cla.s.s of men entrusted with this duty. It is the business of the judge and of the jury to decide on the merits of the case, but in order that they should discharge this function it is necessary that the arguments on both sides should be laid before them in the strongest form. The clear interest of society requires this, and a standard of professional honour and etiquette is formed for the purpose of regulating the action of the advocate. Misstatements of facts or of law; misquotations of doc.u.ments; strong expressions of personal opinion, and some other devices by which verdicts may be won, are condemned; there are cases which an honourable lawyer will not adopt, and there are rare cases in which, in the course of a trial, he will find it his duty to throw up his brief.

But necessary and honourable as the profession may be, there are sides of it which are far from being in accordance with an austere code of ideal morals. It is idle to suppose that a master of the art of advocacy will merely confine himself to a calm, dispa.s.sionate statement of the facts and arguments of his side. He will inevitably use all his powers of rhetoric and persuasion to make the cause for which he holds a brief appear true, though he knows it to be false; he will affect a warmth which he does not feel and a conviction which he does not hold; he will skilfully avail himself of any mistake or omission of his opponent; of any technical rule that can exclude damaging evidence; of all the resources that legal subtlety and severe cross-examination can furnish to confuse dangerous issues, to obscure or minimise inconvenient facts, to discredit hostile witnesses. He will appeal to every prejudice that can help his cause; he will for the time so completely identify himself with it that he will make its success his supreme and all-absorbing object; and he will hardly fail to feel some thrill of triumph if by the force of ingenious and eloquent pleading he has saved the guilty from his punishment or s.n.a.t.c.hed a verdict in defiance of evidence.

It is not surprising that a profession which inevitably leads to such things should have excited scruples among many good men. Swift very roughly described lawyers as 'a society of men bred 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.' Dr. Arnold has more than once expressed his dislike, and indeed abhorrence, of the profession of an advocate. It inevitably, he maintained, leads to moral perversion, involving, as it does, the indiscriminate defence of right and wrong, and in many cases the knowing suppression of truth. Macaulay, who can hardly be regarded as addicted to the refinements of an over-fastidious morality, reviewing the professional rules that are recognised in England, asks 'whether it be right that not merely believing, but knowing a statement to be true, he should do all that can be done by sophistry, by rhetoric, by solemn a.s.severation, by indignant exclamation, by gesture, by play of features, by terrifying one honest witness, by perplexing another, to cause a jury to think that statement false.' Bentham denounced in even stronger language the habitual method of 'the hireling lawyer' in cross-examining an honest but adverse witness, and he declared that there is a code of morality current in Westminster Hall generically different from the code of ordinary life, and directly calculated to destroy the love of veracity and justice. On the other hand, Paley recognised among falsehoods that are not lies because they deceive no one, the statement of 'an advocate a.s.serting the justice or his belief of the justice of his client's cause.' Dr.

Johnson, in reply to some objections of Boswell, argues at length, but, I think, with some sophistry, in favour of the profession. 'You are not,' he says, 'to deceive your client with false representations of your opinion. You are not to tell lies to the judge, but you need have no scruple about taking up a case which you believe to be bad, or affecting a warmth which you do not feel. You do not know your cause to be bad till the judge determines it.... An argument which does not convince yourself may convince the judge, and, if it does convince him, you are wrong and he is right.... Everybody knows you are paid for affecting warmth for your client, and it is therefore properly no dissimulation.' Basil Montagu, in an excellent treatise on the subject, urges that an advocate is simply an officer a.s.sisting in the administration of justice under the impression that truth is best elicited, and that difficulties are most effectually disentangled, by the opposite statements of able men. He is an indispensable part of a machine which in its net result is acting in the real interests of truth, although he 'may profess feelings which he does not feel and may support a cause which he knows to be wrong,' and although his advocacy is 'a species of acting without an avowal that it is acting.'

It is, of course, possible to adopt the principles of the Quaker and to condemn as unchristian all partic.i.p.ation in the law courts, and although the Catholic Church has never adopted this extreme, it seems to have instinctively recognised some incompatibility between the profession of an advocate and the saintly character. Renan notices the significant fact that St. Yves, a saint of Brittany, appears to be the only advocate who has found a place in its hagiology, and the wors.h.i.+ppers were accustomed to sing on his festival 'Advocatus et non latro--Res miranda populo.' It is indeed evident that a good deal of moral compromise must enter into this field, and the standards of right and wrong that have been adopted have varied greatly. How far, for example, may a lawyer support a cause which he believes to be wrong? In some ancient legislations advocates were compelled to swear that they would not defend causes which they thought or discovered to be unjust.[35] St.

Thomas Aquinas has laid down in emphatic terms that any lawyer who undertakes the defence of an unjust cause is committing a grievous sin.

It is unlawful, he contends, to co-operate with any one who is doing wrong, and an advocate clearly counsels and a.s.sists him whose cause he undertakes. Modern Catholic casuists have dealt with the subject in the same spirit. They admit, indeed, that an advocate may undertake the defence of a criminal whom he knows to be guilty, in order to bring to light all extenuating circ.u.mstances, but they contend that no advocate should undertake a civil cause unless by a previous and careful examination he has convinced himself that it is a just one; that no advocate can without sin undertake a cause which he knows or strongly believes to be unjust; that if he has done so he is himself bound in conscience to make rest.i.tution to the party that has been injured by his advocacy; that if in the course of a trial he discovers that a cause which he had believed to be just is unjust he must try to persuade his client to desist, and if he fails in this must himself abandon the cause, though without informing the opposite party of the conclusion at which he had arrived; that in conducting his case he must abstain from wounding the reputation of his neighbour or endeavouring to influence the judges by bringing before them misdeeds of his opponent which are not connected with and are not essential to the case.[36] As lately as 1886 an order was issued from Rome, with the express approbation of the Pope, forbidding any Catholic, mayor or judge, to take part in a divorce case, as divorce is absolutely condemned by the Church.[37]

There have been, and perhaps still are, instances of lawyers endeavouring to limit their practice to cases which they believed to be just. Sir Matthew Hale is a conspicuous example, but he acknowledged that he considerably relaxed his rule on the subject, having found in two instances that cases which at the first blush seemed very worthless were in truth well founded. As a general rule English lawyers make no discrimination on this ground in accepting briefs unless the injustice is very flagrant, nor will they, except in very extreme cases, do their client the great injury of throwing up a brief which they have once accepted. They contend that by acting in this way the administration of justice in the long run is best served, and in this fact they find its justification.

In the conduct of a case there are rules a.n.a.logous to those which distinguish between honourable and dishonourable war, but they are less clearly defined and less universally accepted. In criminal prosecutions a remarkable though very explicable distinction is drawn between the prosecutor and the defender. It is the etiquette of the profession that the former is bound to aim only at truth, neither straining any point against the prisoner nor keeping back any fact which is favourable to him, nor using any argument which he does not himself believe to be just. The defender, however, is not bound, according to professional etiquette, by such rules. He may use arguments which he knows to be bad, conceal or shut out by technical objections facts that will tell against his clients, and, subject to some wide and vague restrictions, he must make the acquittal of his client his first object.[38]

Sometimes cases of extreme difficulty arise. Probably the best known is the case of Courvoisier, the Swiss valet, who murdered Lord William Russell in 1840. In the course of the trial Courvoisier informed his advocate, Phillips, that he was guilty of the murder, but at the same time directed Phillips to continue to defend him to the last extremity.

As there was overwhelming evidence that the murder must have been committed by some one who slept in the house, the only possible defence was that an equal amount of suspicion attached to the housemaid and cook who were its other occupants. On the first day of the trial, before he knew the guilt of his client from his own lips, Phillips had cross-examined the housemaid, who first discovered the murder, with great severity and with the evident object of throwing suspicion upon her. What course ought he now to pursue? It happened that an eminent judge was sitting on the bench with the judge who was to try the case, and Phillips took this judge into his confidence, stated privately to him the facts that had arisen, and asked for his advice. The judge declared that Phillips was bound to continue to defend the prisoner, whose case would have been hopeless if his own counsel abandoned him, and in defending him he was bound to use all fair arguments arising out of the evidence. The speech of Phillips was a masterpiece of eloquence under circ.u.mstances of extraordinary difficulty. Much of it was devoted to impugning the veracity of the witnesses for the prosecution. He solemnly declared that it was not his business to say who committed the murder, and that he had no desire to throw any imputation on the other servants in the house, and he abstained scrupulously from giving any personal opinion on the matter; but the drift of his argument was that Courvoisier was the victim of a conspiracy, the police having concealed compromising articles among his clothes, and that there was no clear circ.u.mstance distinguis.h.i.+ng the suspicion against him from that against the other servants.[39]

The conduct of Phillips in this case has, I believe, been justified by the preponderance of professional opinion, though when the facts were known public opinion outside the profession generally condemned it. Some lawyers have pushed the duty of defence to a point which has aroused much protest even in their own profession. 'The Advocate,' said Lord Brougham in his great speech before the House of Lords in defence of Queen Caroline, 'by the sacred duty which he owes his client, knows in the discharge of that office but one person in the world--that client and none other. To save that client by all expedient means, to protect that client at all hazards and costs to all others, and among 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 advocate, and casting them, if need be, to the wind, he must go on, reckless of consequences, if his fate it should unhappily be to involve his country in confusion for his client's protection.'

This doctrine has been emphatically repudiated by some eminent English lawyers, but both in practice and theory the profession have differed widely in different courts, times and countries. How far, for example, is it permissible in cross-examination to browbeat or confuse an honest but timid and unskilful witness; to attempt to discredit the evidence of a witness on a plain matter of fact about which he had no interest in concealment by exhuming against him some moral scandal of early youth which was totally unconnected with the subject of the trial; or, by pursuing such a line of cross-examination, to keep out of the witness-box material witnesses who are conscious that their past lives are not beyond reproach? How far is it right or permissible to press legal technicalities as opposed to substantial justice? Probably most lawyers, if they are perfectly candid, will agree that these things are in some measure inevitable in their profession, and that the real question is one of degree, and therefore not susceptible of positive definition. There is a kind of mind that grows so enamoured with the subtleties and technicalities of the law that it delights in the unexpected and unintended results to which they may lead. I have heard an English judge say of another long deceased that he had through this feeling a positive pleasure in injustice, and one lawyer, not of this country, once confessed to me the amus.e.m.e.nt he derived from breaking the convictions of criminals in his state by discovering technical flaws in their indictments. There is a cla.s.s of mind that delights in such cases as that of the legal doc.u.ment which was invalidated because the letters A.D. were put before the date instead of the formula 'in the year of Our Lord,' or that of a swindler who was suffered to escape with his booty because, in the writ that was issued for his arrest, by a copyist's error the word 'sheriff' was written instead of 'sheriffs,' or that of a lady who was deprived of an estate of 14,000 a year because by a mere mistake of the conveyancer one material word was omitted from the will, although the clearest possible evidence was offered showing the wishes of the testator.[40] Such lawyers argue that in will cases 'the true question is not what the testator intended to do, but what is the meaning of the words of the will,' and that the balance of advantages is in favour of a strict adherence to the construction of the sentence and the technicalities of the law, even though in particular cases it may lead to grave injustice.

It must indeed be acknowledged that up to a period extending far into the nineteenth century those lawyers who adopted the most technical view of their profession were acting fully in accordance with its spirit.

Few, if any, departments of English legislation and administration were till near the middle of this century so scandalously bad as those connected with the administration of the civil and the criminal law, and especially with the Court of Chancery. The whole field was covered with a network of obscure, intricate, archaic technicalities; useless except for the purpose of piling up costs, procrastinating decisions, placing the simplest legal processes wholly beyond the competence of any but trained experts, giving endless facilities for fraud and for the evasion or defeat of justice, turning a law case into a game in which chance and skill had often vastly greater influence than substantial merits. Lord Brougham probably in no degree exaggerated when he described great portions of the English law as 'a two-edged sword in the hands of craft and of oppression,' and a great authority on chancery law declared in 1839 that 'no man, as things now stand, can enter into a chancery suit with any reasonable hope of being alive at its termination if he has a determined adversary.'[41]

The moral difficulties of administering such a system were very great, and in many cases English juries, in dealing with it, adopted a rough and ready code of morals of their own. Though they had sworn to decide every case according to the law as it was stated to them, and according to the evidence that was laid before them, they frequently refused to follow legal technicalities which would lead to substantial injustice, and they still more frequently refused to bring in verdicts according to evidence when by doing so they would consign a prisoner to a savage, excessive, or unjust punishment. Some of the worst abuses of the English law were mitigated by the perjuries of juries who refused to put them in force.

The great legal reforms of the past half-century have removed most of these abuses, and have at the same time introduced a wider and juster spirit into the practical administration of the law. Yet even now different judges sometimes differ widely in the importance they attach to substantial justice and to legal technicalities; and even now one of the advantages of trial by jury is that it brings the masculine common sense and the unsophisticated sense of justice of unprofessional men into fields that would otherwise be often distorted by ingenious subtleties. It is, however, far less in the position of the judge than in the position of an advocate that the most difficult moral questions of the legal profession arise. The difference between an unscrupulous advocate and an advocate who is governed by a high sense of honour and morality is very manifest, but at best there must be many things in the profession from which a very sensitive conscience would recoil, and things must be said and done which can hardly be justified except on the ground that the existence of this profession and the prescribed methods of its action are in the long run indispensable to the honest administration of justice.

The same method of reasoning applies to other great departments of life. In politics it is especially needed. In free countries party government is the best if not the only way of conducting public affairs, but it is impossible to conduct it without a large amount of moral compromise; without a frequent surrender of private judgment and will. A good man will choose his party through disinterested motives, and with a firm and honest conviction that it represents the cast of policy most beneficial to the country. He will on grave occasions a.s.sert his independence of party, but in the large majority of cases he must act with his party even if they are pursuing courses in some degree contrary to his own judgment.

Every one who is actively engaged in politics--every one especially who is a member of the House of Commons--must soon learn that if the absolute independence of individual judgment were pushed to its extreme, political anarchy would ensue. The complete concurrence of a large number of independent judgments in a complicated measure is impossible.

If party government is to be carried on, there must be, both in the Cabinet and in Parliament, perpetual compromise. The first condition of its success is that the Government should have a stable, permanent, disciplined support behind it, and in order that this should be attained the individual member must in most cases vote with his party. Sometimes he must support a measure which he knows to be bad, because its rejection would involve a change of government which he believes would be a still greater evil than its acceptance, and in order to prevent this evil he may have to vote a direct negative to some resolution containing a statement which he believes to be true. At the same time, if he is an honest man, he will not be a mere slave of party. Sometimes a question arises which he considers so supremely important that he will break away from his party and endeavour at all hazards to carry or to defeat it. Much more frequently he will either abstain from voting, or will vote against the Government on a particular question, but only when he knows that by taking this course he is simply making a protest which will produce no serious political complication. On most great measures there is a dissentient minority in the Government party, and it often exercises a most useful influence in representing independent opinion, and bringing into the measure modifications and compromises which allay opposition, gratify minorities, and soften differences. But the action of that party will be governed by many motives other than a simple consideration of the merits of the case. It is not sufficient to say that they must vote for every resolution which they believe to be true, for every bill or clause of a bill which they believe to be right, and must vote against every bill or clause or resolution about which they form an opposite judgment. Sometimes they will try in private to prevent the introduction of a measure, but when it is introduced they will feel it their duty either positively to support it or at least to abstain from protesting against it. Sometimes they will either vote against it or abstain from voting at all, but only when the majority is so large that it is sure to be carried. Sometimes their conduct will be the result of a bargain--they will vote for one portion of a bill of which they disapprove because they have obtained from the Government a concession on another which they think more important. The nature of their opposition will depend largely upon the strength or weakness of the Government, upon the size of the majority, upon the degree in which a change of ministry would affect the general policy of the country, upon the probability of the measure they object to being finally extinguished, or returning in another year either in an improved or in a more dangerous form. Questions of proportion and degree and ulterior consequences will continually sway them. Measures are often opposed, not on their own intrinsic merits, but on account of precedents they might establish; of other measures which might grow out of them or be justified by them.

Not unfrequently it happens that a section of the dominant party is profoundly discontented with the policy of the Government on some question which they deem of great importance. They find themselves incapable of offering any direct and successful opposition, but their discontent will show itself on some other Government measure on which votes are more evenly divided. Possibly they may oppose that measure.

More probably they will fail to attend regularly at the divisions, or will exercise their independent judgments on its clauses in a manner they would not have done if their party allegiance had been unshaken.

And this conduct is not mere revenge. It is a method of putting pressure on the Government in order to obtain concessions on matters which they deem of paramount importance. In the same way they will seek to gain supporters by political alliances. Few things in parliamentary government are more dangerous or more apt to lead to corruption than the bargains which the Americans call log-rolling; but it is inevitable that a member who has received from a colleague, or perhaps from an opponent, a.s.sistance on a question which he believes to be of the highest importance, will be disposed to return that a.s.sistance in some case in which his own feelings and opinions are not strongly enlisted.

Then, too, we have to consider the great place which obstruction plays in parliamentary government. It constantly happens that a measure to which scarcely any one objects is debated at inordinate length for no other reason than to prevent a measure which is much objected to from being discussed. Measures may be opposed by hostile votes, but they are often much more efficaciously opposed by calculated delays, by multiplied amendments or speeches, by some of the many devices that can be employed to clog the legislative machine. There are large cla.s.ses of measures on which governments or parliaments think it desirable to give no opinion, or at least no immediate opinion, though they cannot prevent their introduction, and many methods are employed with the real, though not avowed and ostensible object of preventing a vote or even a ministerial declaration upon them. Sometimes Parliament is quite ready to acknowledge the abstract justice of a proposal, but does not think it ripe for legislation. In such cases the second reading of the bill will probably be accepted, but, to the indignation and astonishment of its supporters outside the House, it will be obstructed, delayed or defeated in committee with the acquiescence, or connivance, or even actual a.s.sistance of some of those who had voted for it. Some measures in the eyes of some members involve questions of principle so sacred that they will admit of no compromise of expediency, but most measures are deemed open to compromise and are accepted, rejected, or modified under some of the many motives I have described.

All this curious and indispensable mechanism of party government is compatible with a high and genuine sense of public duty, and unless such a sense at the last resort dominates over all other considerations, political life will inevitably decline. At the same time it is obvious that many things have to be done from which a very rigid and austere nature would recoil. To support a Government when he believes it to be wrong, or to oppose a measure which he believes to be right; to connive at evasions which are mere pretexts, and at delays which rest upon grounds that are not openly avowed,--is sometimes, and indeed not unfrequently, a parliamentary duty. A member of Parliament must often feel himself in the position of a private in an army, or a player in a game, or an advocate in a law case. On many questions each party represents and defends the special interests of some particular cla.s.ses in the country. When there are two plausible alternative courses to be pursued which divide public opinion, the Opposition is almost bound by its position to enforce the merits of the course opposed to that adopted by the Government. In theory nothing could seem more absurd than a system of government in which, as it has been said, the ablest men in Parliament are divided into two cla.s.ses, one side being charged with the duty of carrying on the government and the other with that of obstructing and opposing them in their task, and in which, on a vast mult.i.tude of unconnected questions, these two great bodies of very competent men, with the same facts and arguments before them, habitually go into opposite lobbies. In practice, however, parliamentary government by great parties, in countries where it is fully understood and practised, is found to be admirably efficacious in representing every variety of political opinion; in securing a constant supervision and criticism of men and measures; and in forming a safety valve through which the dangerous humours of society can expand without evil to the community.

This, however, is only accomplished by constant compromises which are seldom successfully carried out without a long national experience.