[12] Burnet's Life of Hale, 1 Hale's Works, 59, 60. "He began," says Lord Campbell, "with the specious but impracticable rule of never pleading except on the right side, which would make the counsel to decide without knowing either facts or law, and would put an end to the administration of justice." 1 Lord Campbell's Lives of the Chief Justices, 412. There is the following curious note by Baxter in Burnet's Life of Hale. "And indeed Judge Hale would tell me that Bishop Usher was much prejudiced against lawyers because the worst causes find their advocates; but that he and Mr. Selden had convinced him of the reasons of it to his satisfaction; and that he did by acquaintance with them believe that there were as many honest men among lawyers, proportionably, as among any profession of men in England (not excepting bishops or divines)." 1 Hale's Works, 106.
[13] 2 Wynne's Eunomus, 557.
[14] "Although Serjeants have a monopoly of practice in the Common Pleas, they have a right to practice, and do practice, at this bar; and if we were to assign one of them as counsel, and he were to refuse to act, we should make bold to commit him to prison." Per C. J. Hale. 2 Campbell's Lives of the Chief Justices, 20; citing Freeman, 389; 2 Lev. 129; 3 Keble, 424, 439, 440.
[15] Let the circumstances against a prisoner be ever so atrocious, it is still the duty of the advocate to see that his client is convicted according to those rules and forms which the wisdom of the legislature have established, as the best protection of the liberty and security of the subject. Professor Christian's note to 4 Blackst. Com. 356. From the moment that any advocate can be permitted to say that he will or will not stand between the crown and the subject arraigned in the court where he daily sits to practise, from that moment the liberties of England are at an end. If the advocate refuses to defend from what he may think of the charge or of the defence, he assumes the character of the judge, nay, he assumes it before the hour of judgment; and in proportion to his rank and reputation, puts the heavy influence of perhaps a mistaken opinion into the scale against the accused, in whose favor the benevolent principle of English law makes all presumptions, and which commands the very judge to be his counsel. Lord Erskine, 6 Campbell's Lives of the Chancellors, 361.
[16] Per Gibson, C. J., in Rush v. Cavenaugh, 2 Barr, 189.
[17] "There are many who know not how to defend their causes in judgment, and there are many who do, and therefore pleaders are necessary; so that that which the plaintiffs or actors cannot or know not how to do by themselves, they may do by their serjeants, attorneys, or friends." Mirr. of Justices, ch. 2, sec. v.
[18] Rush v. Cavenaugh, 2 Barr, 189. If the client in any suit furnishes his attorney with a plea which the attorney finds to be false, so that he cannot plead it for the sake of his conscience, the attorney may plead in this case, quod non fuit veraciter informatus, and in so doing he does his duty. Jenkins, 52.
[19] Whewell's Elements of Moral and Political Science, vol. 1, p. 257.
[20] Law Magazine, February, 1850, May, 1854. Law Review, February, 1850. Several articles on the subject, taken from the English press, are to be found in Littell's Living Age, vol. 24, pp. 179, 230, 306. I have added, in an [appendix], Mr. Phillips's vindication of himself from these charges, in his correspondence with his friend Mr. Warren, preceded by a brief statement of the case.
[21] The civil law will not allow a man to be convicted on his bare confession, not corroborated by evidence of his guilt; because there may be circumstances which may induce an innocent man to accuse himself. Bowyer's Commentaries, 355, note. Upon a simple and plain confession, the court hath nothing to do but to award judgment; but it is usually very backward in receiving and recording such confession out of tenderness to the life of the subject; and will generally advise the prisoner to retract it and plead to the indictment. 4 Blackst. Comm. 329. 2 Hale, P. C. 225.