And I would allow the accused the benefit of every flaw on the statute, of every error in the forms of procedure, and of every reasonable doubt. I would even suffer him to array as many young and pretty women as he could entrap into the witness-box fronting the jury—although, perhaps, I might object to their appearing in tears or in mourning, like the Ionians and Greeks and Irish, lest, peradventure, the tables should be turned, as where an Irish barrister, pleading the cause of a little orphan, with the mother and all the rest of the family standing about with handkerchiefs to their eyes, held up the boy in tears. The jury, overcome with sympathy and compassion, were about rendering a verdict at once, and were only delayed by a question from the opposite counsel—“My little fellow,” said he, “what makes you cry?”—“He pinched me!” was the answer, and a verdict was rendered accordingly—as the Irish only are allowed to do it—by acclamation.
And I should not stop here. I would go further. For the purpose of fixing forever and ever the responsibility of a decision upon each of the twelve jurymen—I would have them polled, and questioned separately, and man by man (if permitted by the law,) and not lump their verdict, as they generally do, hit or miss: and I would call upon each to remember that if he erred in pronouncing the judgment of death—of death here, and it might be of death hereafter, he alone would be accountable—for he, alone, might interpose if he would, and arrest that judgment of death, and send the prisoner back to his family—a living man: and I would so picture his own death-bed to every man of that jury, if I had the power, that he should hear himself shrieking for mercy, and see and feel and acknowledge by his looks, that if he betrayed the awful trust, or trifled with it, by deference to others, he himself would be a man-slayer, and utterly without excuse here and hereafter, in this world or the next.
All this I would do, or try to do: for all this might be done by the honest lawyer without a violation of God’s law. But, as I have said before, I would not have him “play falsely,” nor yet “foully win.” I would not have him brow-beat nor entrap honest witnesses. I would not have him guilty of misrepresenting the evidence nor the law “with submission to the court.” I would not have the opposite counsel insulted, nor the bench quarreled with—if it could be helped—
“——For even in the tranquilest climes
Light breezes will ruffle the flowers sometimes.”
Nor everlasting speeches made, with continual asseverations and solemn appeals to the by-standers and the public; as if the question of life and death were a game of chess for the amusement not only of those who are engaged in it, but for all who may happen to be near and looking on at the time.
And I would have the dignity of the profession upheld by courtesy and gravity and self-possession—by varied learning—by the utmost forbearance—by very short speeches—by the greatest regard for truth, and by unquestionable conscientiousness under all circumstances.
Were this done, the Bar would be sifted and purged and purified to some purpose. Nineteen twentieths of the rabble rout who mistake themselves, and are mistaken by others for lawyers, would vanish from the face of the earth—and the profession would then be not only respectable, but worth following; though, in my judgment, lawyers would still be the last among us to be intrusted with a disproportionate share of Legislative or Executive power; though, from the nature of things they would be likely to monopolize the whole Judiciary power.
That our leading Advocates will not relish this doctrine, I know. In theory, they may approve—but in practice, when they and their interest, and their professional pride are once engaged, they will never yield. Always taking it for granted that their client tells the truth—in proportion to the fee; and always determined to prevail, if they can, right or wrong, their reformation will depend, not upon themselves, but upon others—upon the People at large; for whenever the People say that a professional acquaintance with law shall be a disqualification for the business of law-making, and no great recommendation for office, then will the lawyers of our country begin to mind their own business, and cease to be mere politicians, clamoring, open-mouthed, for office all their lives long.
And here, lest I may forget them in the proper place, allow me to illustrate the disposition of the People to see fair play, by two or three—Joe Millers, which I never lose an opportunity of telling under this head. They show that my brethren of the bar sometimes get their “come ups” where they least expect it—and very much to the satisfaction of the multitude.