free countries, but especially in all modern free countries, has the advocate assumed a prominent position. He is an important person as advocate, and as belonging to that profession from which the people necessarily must always take many of their most efficient law-makers, from which arise many of the greatest statesmen, whatever the English prejudice, even of such men as Chatham, to the contrary, may long have been, and which has formed in every free people many of their immortal orators. The advocate is part and parcel of the whole machinery of administering justice, as much so as the jury, the judge, or the prosecutor. He forms an integral part of the whole contrivance called the trial; and the only object of the trial is to find out legal truth, so that justice may be administered. In this trial, it has been found most desirable to place the judge beyond the parties, to let both parties appear before him and to let both parties say all they can say in their favor, so that the truth may be ascertained without the judge's taking part in the inquiry, and thus becoming personally interested in the conviction, or in either party. The advocate is essentially an amicus curiæ; he helps to find the truth, and for this purpose it is necessary that all that can be said in favor of his client or in mitigation of the law, be stated; because the opposite party does the opposite, and because the case as well as the law ought to be viewed from all sides, before a decision be made. The advocate ought not only to say all that his client might say, had he the necessary skill and knowledge, but even more; but the client or prisoner has no right to speak the untruth in his own behalf, nor has the lawyer the right to do it for him. Chief-Justice Hale severely reproves the misstating authorities and thus misleading the court, but why should this be wrong, and the misstating of facts not? Many prisoners would certainly misstate authorities if they could. Trials are not established for lawyers to show their skill or to get their fees, nor for arraigned persons to escape. They are established as a means of ascertaining truth and dispensing justice; but not to promote or aid injustice or immorality. The advocate's duty is, then, to say everything that possibly can be said in favor of his case or client, even if he does not feel any strong reliance on his argument, because what appears to himself weak may not appear as such to other minds or may contain some truth which will modify the result of the whole. But he is not allowed to use falsehood, nor to injure others. Allowing this to him would not be independence, but an arbitrarily privileged position, tyrannical toward the rest of society." To allow tricks to a whole profession, or to claim them by law, seems monstrous. Is there a separate decalogue for lawyers? 11 The famous case of Mr. Philips, now on the bench, when defending Courvoisier, is treated at considerable length in Townsend's modern State Trials, under the trial of Courvoisier. It must be allowed that the defence is not successful, though ingenious. On page 312 of vol. i. of that work the reader will also find the titles of numerous writings bearing on the moral obligations of the advocate, to which may be added those I have mentioned in the notes appended to my remarks on the advocate in the 2d vol. of the Political Ethics. I also refer to pp. 59 and sequ. in my Character of the Gentleman, Charleston, S. C. 1847. The lawyer is obliged, as was stated before, to find out everything that can be found in favor of the person who has intrusted himself to his protecting care, because the opposite will be done by the opposite party. He has no right to decline the defence of a person, which means the finding out for him all that fairly can be said in his favor, except indeed in very peculiar cases. Declining the defence beforehand would amount to a prejudging of the case, and in the division of judicial labor every one ought to be defended. The defence of possible innocence, not the defeat of justice, is the aim of counsel. 12 Great advocates themselves, such as Romilly, 13 have very distinctly pronounced themselves against that view which seems at present the prevailing one among the lawyers; and Dr. Thomas Arnold was so 12 At the very moment that these pages are passing through the press, a case has occurred in an English court, of a young man indicted for burglariously entering the room of some young woman. His counsel in the defence suggested that probably the young lady had given an appointment to the prisoner. "That is not in the brief,” cried the prisoner himself, and the court justly reprimanded the barrister. It ought to be added that in this case the barrister wrote a letter of submission to the court. This has not been done in other cases quite as bad in principle. Thus, another publicly reproved barrister insisted that he had done what the profession required, when he had resorted to the following trick. He had subpoenaed the chief witness against his client, so that he could not appear, and then argued that the prosecutor must know his client to be innocent, else he would certainly have produced his witness, &c. 13 There is a very excellent passage on this subject in the reflections of sir Samuel Romilly, on himself and the good he might do, should he be appointed Lord Chancellor, page 384 and sequ. of vol. iii. of his Memoirs, 2d ed. London, 1840. VOL. I.-23 deeply impressed with the moral danger to which the profession of the law, at present, exposes its votary, that he used to persuade his pupils not to become lawyers, while Mr. Bentham openly declared that no person could escape, and that even Romilly had not remained wholly untainted. It ought to be observed, however, that a more correct opinion on the obligations of the advocate seems to be fast gaining ground in England. At present it seems to be restricted to the public, but the time will come when this opinion will reach the profession itself. Like almost all reforms, it comes from without, and will ultimately force an entrance into the courts and the inns. We are thus earnest in our desire of seeing correct views on this subject prevail, because we have so high an opinion of the importance of the advocate in a modern free polity. CHAPTER XXI. SELF-GOVERNMENT. 43. THE last constituent of our liberty that I shall mention is local and institutional self-government.1 1 The history of this proud word is this: It was doubtless made in imitation of the Greek autonomy, and seems originally to have been used in a moral sense only. It is of frequent occurrence in the works of the divines who flourished in the sixteenth and seventeenth centuries. After that period it appears to have been dropped for a time. We find it in none of the English dictionaries, although a long list of words is given compounded with self, and among them many which are now wholly out of use; for instance, Shakspeare's Self-sovereignty. In Dr. Worcester's Universal and Crit. Dictionary the word is marked with a star, which denotes that he has added it to Dr. Johnson's, and the authority given is Paley, who to my certain knowledge does not use it in his Political Philosophy, nor have several of my friends succeeded in finding it in any other part of his works, although diligent search has been made. Whether the term was first used for political self-government in England or America I have not been able to ascertain. Richard Price, D. D., used it in a political sense in his Observations on the Nature of Civil Liberty, &c. 3d edition, London, 1776, although it does not clearly appear whether he means what we now designate by independence, or internal (domestic) self-government. Jefferson said in 1798 that "the residuary rights are reserved to their (the American States) own self-government." The term is now freely used both in England and America. In the former country we find a book on Local Self-government; in ours, Daniel Webster said, on May the 22d, 1852, in his Faneuil Hall speech: "But I say to you |