And as to the charge against the eminent advocate, Charles Phillips, of seeking to fasten the crime on the innocent, when he knew that his client was guilty, in the trial of Courvoisier for the murder of Lord Russell, that charge was overwhelmingly refuted by the testimony of lawyers and judges present at that trial. Mr. Phillips supposed his client an innocent man until the trial was nearly concluded. Then came the unexpected confession from the guilty man, accompanied by the demand that his counsel continue in his case to the end. At first Mr. Phillips proposed to retire at once from the case; but, on advising with eminent counsel, he was told that it would be wrong for him to betray the prisoner's confidence, and practically to testify against him, by deserting him at that hour. He then continued in the case, but, as is shown conclusively in his statement of the facts, with its accompanying proofs, without saying a word or doing a thing that might properly be deemed in the realm of false assertion or intimations.[1]
[Footnote 1: See Sharswood's Legal Ethics, pp. 103-107, 183-196.]
The very prominence given in the public press to the charges against Mr. Phillips, and to their refutation, are added proof that the moral sense of the community is against falsehood under any circumstances or in any profession.
Members of the legal profession are bound by the same ethical obligations as other men; yet the civil law, in connection with which they practice their profession, is not in all points identical with the moral law; although it is not in conflict with any of its particulars. As Chancellor Kent says: "Human laws are not so perfect as the dictates of conscience, and the sphere of morality is more enlarged than the limits of civil jurisdiction. There are many duties that belong to the class of imperfect obligations, which are binding on conscience, but which human laws do not and cannot undertake directly to enforce. But when the aid of a Court of Equity is sought to carry into execution … a contract, then the principles of ethics have a more extensive sway."[1]
[Footnote 1: Kent's Commentaries, Lect. 39, p. 490 f. (4th ed.); cited in Story's Equity Jurisprudence, VI., p. 229 (13th ed.).]
In the decisions of Equity courts, while the duty of absolute truthfulness between parties in interest is insisted on as vital, and a suppression of the truth from one who had a right to its knowledge, or a suggestion of that which is untrue in a similar case("suggestio falsi aut suppressio veri"), is deemed an element of fraud, the distinction between mere silence when one is entitled to be silent, and concealment with the purpose of deception, is distinctly recognized, as it is not in all manuals on ethics.[1] This is indicated, on the one hand, in the legal maxim Aliud est celare, aliud tacere,—"It is one thing to conceal, another to be silent;" silence is not necessarily deceptive concealment;[2] and on the other hand in such a statement as this, in Benjamin's great work on Sales: "The nondisclosure of hidden facts [to a party in interest] is the more objectionable when any artifice is employed to throw the buyer off his guard; as by telling half the truth."[3] It is not in any principles which are recognized by the legal profession as binding on the conscience, that loose ethics are to find defense or support.
[Footnote 1: See Bispham's Principles of Equity, p. 261, (3d ed.); Broom's Legal Maxims, p. 781 f. (7th Am. ed.); Merrill's American and English Encyclopedia of Law, art. "Fraud.">[
[Footnote 2: See Anderson's Dictionary of Law, p. 220; Abbott's Law
Dictionary, I., 53.]
[Footnote 3: Treatise on the Law of Sale of Personal Property, p. 451 f.]
But the profession that has most at stake in this discussion, and that, indeed, is most involved in its issue, is the ministerial, or clerical, profession. While it was Jewish rabbis who affirmed most positively, in olden time, the unwavering obligations of truthfulness, it was Jewish rabbis, also, who sought to find extenuation or excuse for falsehoods uttered with a good intention. And while it was Christian Fathers, like the Shepherd of Hermas, and Justin Martyr, and Basil the Great, and Augustine, who insisted that no tolerance should be allowed to falsehood or deceit, it was also Christian Fathers, like Gregory of Nyssa, and Chrysostom, who having practiced deceit for what they deemed a good end, first attempted a special plea for such falsities as they had found convenient in their professional labors. And it was other Christian Fathers, like Origen and Jerome, who sought to find arguments for laxity of practice, at this point, in the course of the Apostles themselves.