Blackwood's Edinburgh Magazine, Volume 58, No. 359, September 1845

by Various

As we have intimated, we do not feel disposed to blame our author that he speaks often of his "glorious," his "noble" profession. The golden hue of sunrise is rightly cast upon the pinnacles and towers of that city the traveller is toiling to reach. What narrow and squalid streets, what blind alleys, what there is of filth and ruin in the great capital of intelligence, he may find out afterwards for himself. There was a time when we, too, were younger than we are, and saw the proud city at the same advantageous distance, when, dazzled by the view of its more conspicuous ornaments, we might have been tempted to make the same exclamations, and to use the same flattering phraseology. At that time, if any one had thrown a shadow of moral blame on the very principle and universal practice of the profession of advocacy, we should have indignantly repelled the accusation, we should have rushed to its defence, perhaps we even did attempt to throw our little shield before its huge and very vulnerable body. But now—when some years have rolled over our heads, and we have learned to think more calmly, if not more wisely—when we have caught a glimpse of the men who fill high places, and stood near enough to discover that they were of earth's common mould—when the actual din of forensic oratory, deafening and monotonous, has rung in our ears, and we have sat and watched the solemn juggle, and the stale hypocrisy with which that legal strife called a trial is conducted—now, if any teacher of ethics should denounce the demoralizing principle of advocacy—the principle we mean of contending for any client, or any cause, that craves fee in hand—we should no longer be eager to thrust ourselves between him and the object of his indignation; we should let his wrath take its course; we should listen with patience, with neutrality, perhaps with secret satisfaction at his attack. What, after all, is to be said in answer to the reproach which every simple-minded man must make—not against this or that member of the profession, because an individual is always considered blameless who only adopts the customs of his country—but against the whole profession, the principle and theory of its action, this arguing for A or B, for Yes or No, as they first come, without the least regard for justice or for truth?

It is well known what Paley has said in its defence. "There are falsehoods," he writes in his chapter on Lies, "which are not lies, that is, which are not criminal; as, 1. when no one is deceived—which is the case in parables, fables, novels, jests, tales to create mirth, ludicrous embellishments of a story, where the declared design of the speaker is not to inform but to divert; compliments in the subscription of a letter, a servant's denying his master, a prisoner pleading not guilty, and an advocate asserting the justice, or his belief of the justice, of his client's cause. In such instances no confidence is destroyed, because none was reposed; no promise to speak the truth is violated, because none was given or understood to be given."

Ay, but the advocate does strive to be believed—does labour to deceive. His very object is to gain credit for his assertion, whether contrary or not to his sense of truth. He stands there, it is true, in the character of advocate, subject to whatever suspicion you may attach to that character; but all his ability is employed to overcome that suspicion, and compel you to credit him. "Confidence is not reposed;" not readily it may be; he labours, therefore, the more assiduously to win it. How can he avail himself of the plea here offered for him? How can he place himself in the sane category with the portly merchant who signs himself "your humble servant," and would indeed be strangely surprised if you took him at his word? Or with the obedient valet who denies his master with the customary, "not at home?" No man uses language with a more evident desire to obtain our conviction than the advocate.

There is another so-called theory of advocacy, which we will state in the words of Bishop Warburton. In his Divine Legation, vol. i. p. 397, he says, speaking of Cicero—"As an orator, he was an advocate for his client, or, more properly, personated him. Here, then, without question, he was to feign and dissimulate his own opinions, and speak those of his client. And though some of those who call themselves casuists, have held it unlawful for an advocate to defend what he thinks an ill cause, yet I apprehend it to be the natural right of every member of society, whether accusing or accused, to speak freely and fully for himself. And if, either by a legal or natural incapacity, this cannot be done in person, to have a proxy provided or allowed by the state to do for him what he cannot or may not do for himself. I apprehend that all states have done it, and that every advocate is such a proxy."

This explanation goes far. Of a certainty, every man has a right to approach a court of justice with such plea, or such demand, as the law gives him. For his ultimate aims, for his moral purposes in so doing, he alone is responsible. We do not desire the barrister so to prejudge the cause of the litigant as to decide whether or not he ought, as a moral man, to carry it into a court of justice. Let his plea, or his demand, be laid before the tribunal of his country, and as he cannot, in the complicated state of our jurisprudence, do this for himself, it is right and equitable that there should be professional men whose function it is to do this for him. But it follows not that the professional man is to pledge his own personal convictions in every case he undertakes. Let him speak in the name of his client, let him limit himself to the office of interpreter, where his own convictions do not allow him to be the zealous advocate. The state ought to give to every man free access to a court of justice, and to all the armoury of the law; how he uses the weapons he finds there, he must account to God and his own conscience, and the moral judgment of society; but the state is not to give to every rogue the benefit of the apparent convictions in his favour, of a learned and honorable gentleman. If the barrister speaks, and is understood to speak, as from his client, and not from his own conviction, the indiscriminate advocacy of causes which the administration of justice requires, is reconcilable with the manifest claims of morality. But not otherwise. To lend out the zeal of truth to varnish every cause, is what no system of jurisprudence demands, and what no system of ethics can tolerate. Yet this is what is done.

If a conveyancer is instructed to draw a will which appears to him unjust, he must feel some pain in so doing; but it is not a pain of conscience, for it is not his office to compel people to make equitable wills. It is an office which, at the distance he stands from the parties, and with his limited knowledge of their character and mutual relationships, he could not possibly undertake; he would be a mere disturber of the peace of society if he attempted to regulate the morality of all the conveyances and testaments that he drew. It would indeed be a doctrine destructive of all order, and of the very machinery of society, that would, as a general rule, impose upon men of profession, or of trade, the responsibilities which lie, in the first instance, upon the consciences of their clients. A man could not sell a piece of whipcord from his shop, without having an assurance from the customer that he was not buying it to strangle his wife withal. The conveyancer, therefore, quietly pursues his instructions, and draws the will. In the like manner, if a barrister is instructed to plead the statute of limitations to a debt, it is no concern of his if the client is not acting in a conscientious manner in taking advantage of the statute. The law gives him this plea, and it is not for the jurist to debar him the use of it. He presents it, therefore, to the court. But if, not content with pleading the statute of limitations for a client who employs the law to escape from a moral obligation, he labours to convince the jury that, in availing himself of this plea, his client is acting in a very honourable, or at least in no blamable manner; if, by an artful colouring of the facts, or by insinuations against other parties, he contrives to lead the culprit in triumph through the court, then we say that a baseness is committed by the advocate, for which there is no excuse, in the constitution of courts of justice, nor in the subtleties of casuistry.

Those who have expatiated on the duty of the barrister to do all for his client, be that client whom he may, have generally taken care to place before us the cases of political prosecution, where the advocate appears to act a brave and generous part in opposing the government and the legal officers of the crown. By dexterously keeping the small cases in view while they were enlarging on the broad principle of indiscriminate advocacy, they have often contrived to give to this principle itself an air of generosity; as if the barrister were performing a noble self-sacrifice, were devoting himself in a quite heroic manner, by giving himself, head and heart, voice and intelligence, to the first distressed applicant for his aid. It is only by referring to the political nature of the occasion on which it was delivered, that we can account for the following splendid exaggeration of Lord Brougham's upon this subject:—

"An advocate, 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 the consequences, if his fate it should unhappily be to involve his country in confusion for his client's protection."

This piece of eloquent absurdity was delivered on the trial of Queen Caroline, and the speaker was playing the advocate at the time he delivered it. But Lord Brougham would not surely speak or write in the same strain upon other and more ordinary occasions—if, for instance, the client, for whom the country was to be involved in confusion, was a railway company![15]

Every man has something to be said for him in the way of defence or palliation; we have no objection to every man having his advocate in Westminster Hall; but we are persuaded that public opinion is far too indulgent to this "glorious and noble" profession, when it permits its members, speaking as from their own conviction, to sport with truth to any extent that may be serviceable to their clients. A more temperate zeal, which should not overstep what the interest of justice demands, would indeed be less munificently rewarded; but, in every other respect, it would be a clear gain both to the cause of public morality and the administration of the laws.