Part 1 (1/2)
Ethics in Service.
by William Howard Taft.
PREFACE
The legal profession discharges a most important function in a civilized community, and it seems to me that a discussion of the ethics and ideals of that profession would come within the purpose of the Page foundation, which is described by the donor as intended to promote ”the ethical side of business life, including the morals and ethics of public service.” I shall first ask your attention to the history of the profession, which shows that a paid advocacy is the only practical system, and to the rules of conduct to which lawyers must be held in order that such a system shall promote justice. I cannot claim to have any peculiar knowledge upon this subject other than that derived from a somewhat brief practice of five years at the Bar, from an experience of eleven years on the Bench of trial and appellate courts, from a somewhat varied experience in the responsibility of government, not only in this country, but in those far-distant isles of the Pacific in which the United States has been grafting the principles of free government upon a civilization inherited from Spain.
CHAPTER I
HISTORY OF THE PROFESSION OF LAW
It is not too much to say that the profession of the law is more or less on trial. It is certain that there is a crisis in the life of our courts, and that a great political issue is being forced upon the people, for they must decide whether the courts are to continue to exercise the power they now have, and what character of service they shall be required to render. Judges are lawyers. They ought to be trained pract.i.tioners and learned in the profession of the law before they ascend the Bench, and generally they are. Therefore, our courts, as they are now conducted, and our profession, which is the handmaid of justice, are necessarily so bound together in our judicial system that an attack upon the courts is an attack upon our profession, and an attack upon our profession is equally an attack upon the courts.
We have all noted on the stage and in the current literature the flippant and sarcastic references to the failures of the administration of justice, and we are familiar with the sometimes insidious and too often open impeachments of the courts, which appear in the press and upon the hustings. They are charged with failure to do justice, with bad faith, with lack of intelligent sympathy for socially progressive movements, with a rigid and reactionary obstruction to the movement toward greater equality of condition, and with a hidebound and unnecessarily sensitive att.i.tude of mind in respect to the rights of property. One count that looms large in the wide range of the indictment against our judicial system is the immoral part that lawyers are said necessarily to play in the perversion of justice by making the worse appear the better reason. Such a public agitation and such an issue in politics lead to a consideration of the fundamental reasons for the existence of our profession in the past, and a further inquiry as to the need for it in the future, as preliminary to a discussion of the rules of conduct that should govern its practice.
There are those who intimate that we can learn nothing from the past.
They don't say so in so many words, but they proceed on the theory that man, under the elevating influences with which they propose to surround him, is suddenly to become a different creature, prompted by different motives. But those of us who have been fortunate in having an education permeated with an atmosphere of common sense, and an idea of how to deal with human nature as it is, realize that the world is not to be reformed tomorrow or in a month or a year or in a century, but that progress is to be made slowly and that the problems before us are not so widely different from those which were presented to our ancestors as far back as the Christian era. Nor can we fail to derive some benefit from a consideration of such troubles, tribulations and triumphs of our profession in the past as suggest rules of conduct for lawyers in the future. I do not mean that we are not to aspire for better things. Nor do I wish to deny us the happiness of hope for reasonable and real progress toward higher ideals. I simply insist that we ought not to ignore the lessons of experience when we deal with conditions as they are and as everybody who is familiar with them knows them to be.
The three civilizations in which we may most profitably study the growth and development of the legal profession are the Jewish, the Roman and the English. Among the Jews, the Mosaic law, which went into the smallest details of personal life, was the guide to their rule of action. As it had religious sanction, the high priests became the actual ministers of justice and the preservation of religion and law was united in them. Acting as their a.s.sistants, and as a.s.sessors in the tribunals of which the high priests were the head, were the Scribes. They were learned in the law; had a religious and priestly character themselves; interpreted the Mosaic law with a view to its application to the various facts and issues which arose; and were in addition the teachers of law.
It was to them that the rabbinical injunction was made ”to make the knowledge of the law neither a crown wherewith to make a show, nor a spade wherewith to dig.” And again it was said, ”He who uses the crown of the law for external aims fades away.”
In describing the principles of non-remuneration to the Scribes, the learned German Professor Schurer says: ”In Christ's censures of the Scribes and Pharisees, their covetousness is a special object of reproof. Hence, even if their instruction was given gratuitously, they certainly knew how to compensate themselves in some other way.” And it is because of this evasion of this rule that we find those pa.s.sages in the eleventh chapter of Luke, the 46th and 52d verses, which read:
Verse 46. ”And he said, Woe unto you also, ye lawyers! for ye lade men with burdens grievous to be borne, and ye yourselves touch not the burdens with one of your fingers.”
Verse 52. ”Woe unto you, lawyers! for ye have taken away the key of knowledge: ye entered not in yourselves, and them that were entering in ye hindered.”
The line between the judicial and advisory functions of the Hebrew Scribes was not closely or clearly drawn. They were evidently supposed to occupy a disinterested position toward those who consulted them and to be in a sense the a.s.sociates of the judges. Since the motive which prompted their study of particular cases was supposed to be only that of vindicators of general justice, the rules which nominally guided their action, as announced by the lawgivers, required that their services should always be gratuitous. But quite naturally their consultation with private litigants prompted such litigants to influence their view of the law, and command their skill in debate. And so to evade the rule which prevented remuneration they established the custom of giving presents in advance. These presents given in advance to secure the kindly favor of the Scribes are interesting as the precursors of that inst.i.tution dear to every English barrister, and not unknown--nor even objectionable--to American lawyers, to wit, the Retainer. In fact it was the impossibility of finding men who could remain judicial in their att.i.tude when the thought of remuneration moved them to advocate the cause of one of the litigants, that put the Scribes of those days in an indefensible position and led to the attacks upon them that we find in the New Testament.
And so it was in Rome. There the progenitor of the lawyer was first the priest, the _Pontifex_, mingling judicial and advisory functions, and then the _patronus_ or the orator, a man of wealth and high standing in the community, who had gathered about him freed men and Plebeians as his supporters. The latter were known as his _clientes_, from which term our word is derived. When one of his clients became involved in a lawsuit, the _patronus_ appeared to advise the judge--a magistrate acting only as vindicator of general justice and often not learned in the principles of law--and was not supposed to receive any compensation. Less than the _patronus_, but exercising similar functions, was the _advocatus_--who, though perhaps not so learned in the law, nor so formidable as a person, was able to a.s.sist the _patronus_ before the tribunal on behalf of others. There was in addition a body of men called ”jurist consults,”
learned in the law and able to advise, who came to be recognized as the members of a select profession in the time of Augustus.
In the year 200 before Christ, the Cincian law was enacted, requiring that service of the _patronus_ and the advocate should be gratuitous, but it was soon evaded even as the Jewish laws had been. Again presents were made to secure the skilled advocacy of men learned in the law and acute in debate. These gifts like the Hebrew ones were paid in advance and were called ”honorariums,” another term which suggests the modern retainer. Neither an _advocatus_ nor a _patronus_ could sue for such honorarium at law because it was a violation of law, but once paid, the honorarium could not be recovered. Cicero boasted that he never violated the Cincian law, but historians of his period intimate that by secret loans and testamentary gifts his practice proved to be very profitable.
And it is certain, at least, that many of his contemporaries were made very rich by professional remuneration. Augustus directed the pa.s.sage of another law forbidding compensation to orators and advocates, but it was disregarded and subsequent emperors contented themselves with fixing limits for the fees to be charged. In the golden age of the Roman law, therefore, the payment of the profession became recognized as legitimate and the profession itself became a definite body with clearly understood functions.
In England, for two hundred years after the Conquest, the priests were the only learned men, and they, too, like the Scribes, acted as judges and advisers of litigants. Even as late as the time of Henry VIII, as we know, the Keeper of the King's Conscience and the head of the Court of Equity, was an Ecclesiastic in the formidable person of Cardinal Woolsey. About the reign of King John, laymen became lawyers, and in Henry III's time the Pope forbade priests to fit themselves in civil law or to act as advisers in respect to it. We may properly say that the profession of the Bar, as a recognized English inst.i.tution, had its beginnings in the struggle for individual rights by which the English race forced the great charter from King John. We find that in the history of the early English administration of justice, bailiffs, undersheriffs, clerical attaches and the underlings of the courts had gone into the business of acting as attorneys, of cheating their clients, and of stirring up litigation. While statutes were directed against their abuses, I cannot find that there was any English statute forbidding lawyers to receive compensation for their services, although the action of the Pope in forbidding his priests to study and practice law in England may indicate some such abuses. It is certain that legal services were not regarded as creating a debt due from the client to the lawyer who had served him. By statute, now, attorneys and solicitors in England are ent.i.tled to fixed fees for professional services. But in the case of barristers, down to the present time, while they may demand a retainer for their services in advance, they still cannot recover by suit if the services are rendered without receiving it. This may possibly be derived from the early Roman and Jewish view of the professional relation and suggests the probability that early in English history professional services were deemed to be gratuitous.
The grant of Magna Charta by King John, in response to the demand of the Barons at Runnymede, gave birth to the Bar in its modern character.
Articles 17 and 18 of that instrument provided that Common Pleas should not follow the court of the King, but should be held in a certain place, and that trials upon certain writs should not be taken outside of their proper counties. It provided further that the King or the Chief Justice should send two justiciaries into each county, four times in the year, to hold certain a.s.sizes within the county, with four knights of the county, chosen by it, on the day, and at the place appointed. The 45th article promised that the King would not make Justiciaries, Constables, or Bailiffs excepting of such as knew the laws of the land and were well disposed to observe them. The result of this provision by which Common pleas courts came to be held at Westminster, while regular a.s.sizes were held in the counties, was the establishment of the four Inns of Court, so-called, Lincoln's Inn, the Inner and the Middle Temple, and Gray's Inn, together with a number of others known as Chancery Inns, which have of late years disappeared. Henry III took these Inns under his especial protection and prohibited the study of law anywhere in London save in the Inns of Court. They were the homes of the Bar, for within their walls lawyers had their offices, and there students of the law received their education. In fact, they may be said to const.i.tute the foundation of the modern profession of the law in the English-speaking race.
The Inns of Court were at first an aristocratic inst.i.tution, and only men of good blood were permitted to practice in them. Indeed, that was the case in the early days in Rome. Pliny reports that no one could become a _jurist consult_, an _advocatus_ or a _patronus_ except he be of the Patrician cla.s.s. But soon after the Empire began, this rule broke down and the Roman Bar became open to all. So, too, in the English Bar at first admission was controlled by the Benchers or governing bodies of the Inns of Court and the students were chosen only from good families.
It was probably this that led to their unpopularity and to the denunciation which they received in Wat Tyler's day, in the fourteenth century, and from Jack Cade's followers whom Shakespeare makes wish to kill all the lawyers in the next century. Their exclusive spirit pa.s.sed away, however, and while aristocratic cla.s.s distinctions were rigidly maintained in English society, the Bar became most democratic through the avenue to positions of highest influence on the Bench and in politics which it freely offered to able men from the people. And, indeed, there is no part of English history that is so full of interest as the stories of her great lawyers, who, beginning in the humblest conditions of life, fought their way by real merit into positions of control in the government and thus gave ability and strength to the aristocracy of which they became a part.
In the three centuries or more after the establishment of the Inns of Court, no division appeared in the profession of the law, and it was not until about 1556 that the profession became separated into attorneys at law and solicitors in chancery, on the one hand, and barristers on the other. The former dealt directly with clients and performed the preliminary work of drafting doc.u.ments and preparing briefs, while the latter, the barristers, drafted the pleadings and presented the causes in court. A similar division of functions prevailed in the Roman Bar. I shall have occasion later to comment on the advantages and disadvantages of this division, but this summary reference is sufficient for my present purpose in tracing the history of the Bar in England. During this period, after the establishment of the Inns of Court, the unpopularity of the Bar manifested itself in the enactment of statutes forbidding the election of lawyers to Parliament. This gave rise to the noted Parliament known as the ”Dunces Parliament,” because everybody who knew anything about the law, and therefore about the framing or the operation of statutes, was excluded from members.h.i.+p.