[34] Roche's Life of John Boyle O'Reilly, with introduction by Cardinal Gibbons. Since the publication of this book Cardinal Gibbons has written a letter to the Tablet (Dec. 2, 1899), in which he says: 'I feel it due to myself and the interests of truth to declare that till I read Mr. Lecky's criticism I did not know that Mr. O'Reilly had ever been a Fenian or a British soldier, or that he had tried to seduce other soldiers from their allegiance. In fact, up to this moment, I have never read a line of the biography for which I wrote the introduction.... My only acquaintance with Mr. O'Reilly's history before he came to America was the vague information I had that, for some political offence, the exact nature of which I did not learn, he had been exiled from his native land to a penal colony, from which he afterwards escaped.'

I gladly accept this assurance of Cardinal Gibbons, though I am surprised that he should not have even glanced at the book which he introduced, and that he should have been absolutely ignorant of the most conspicuous event of the life which, from early youth, he held up to unqualified admiration. I regret, too, that he has not taken the opportunity of this letter to reprobate a form of moral perversion which is widely spread among his Irish co-religionists, and which his own words are only too likely to strengthen. It is but a short time since an Irish Nationalist Member of Parliament, being accused of once having served the Queen as a Volunteer, justified himself by saying that he had only worn the coat which was worn by Lord Edward Fitzgerald and Boyle O'Reilly; while another Irish Nationalist Member of Parliament, at a public meeting in Dublin, and amid the cheers of his audience, expressed his hope that in the South African war the Irish soldiers under the British flag would fire on the English instead of on the Boers.

CHAPTER IX

The foregoing chapter will have shown sufficiently how largely in one great and necessary profession the element of moral compromise must enter, and will show the nature of some of the moral difficulties that attend it. We find illustrations of much the same kind in the profession of an advocate. In the interests of the proper administration of justice it is of the utmost importance that every cause, however defective, and every criminal, however bad, should be fully defended, and it is therefore indispensable that there should be a class of men entrusted with this duty. It is the business of the judge and of the jury to decide on the merits of the case, but in order that they should discharge this function it is necessary that the arguments on both sides should be laid before them in the strongest form. The clear interest of society requires this, and a standard of professional honour and etiquette is formed for the purpose of regulating the action of the advocate. Misstatements of facts or of law; misquotations of documents; strong expressions of personal opinion, and some other devices by which verdicts may be won, are condemned; there are cases which an honourable lawyer will not adopt, and there are rare cases in which, in the course of a trial, he will find it his duty to throw up his brief.

But necessary and honourable as the profession may be, there are sides of it which are far from being in accordance with an austere code of ideal morals. It is idle to suppose that a master of the art of advocacy will merely confine himself to a calm, dispassionate statement of the facts and arguments of his side. He will inevitably use all his powers of rhetoric and persuasion to make the cause for which he holds a brief appear true, though he knows it to be false; he will affect a warmth which he does not feel and a conviction which he does not hold; he will skilfully avail himself of any mistake or omission of his opponent; of any technical rule that can exclude damaging evidence; of all the resources that legal subtlety and severe cross-examination can furnish to confuse dangerous issues, to obscure or minimise inconvenient facts, to discredit hostile witnesses. He will appeal to every prejudice that can help his cause; he will for the time so completely identify himself with it that he will make its success his supreme and all-absorbing object; and he will hardly fail to feel some thrill of triumph if by the force of ingenious and eloquent pleading he has saved the guilty from his punishment or snatched a verdict in defiance of evidence.

It is not surprising that a profession which inevitably leads to such things should have excited scruples among many good men. Swift very roughly described lawyers as 'a society of men bred from their youth in the art of proving by words, multiplied for the purpose, that white is black and black is white, according as they are paid.' Dr. Arnold has more than once expressed his dislike, and indeed abhorrence, of the profession of an advocate. It inevitably, he maintained, leads to moral perversion, involving, as it does, the indiscriminate defence of right and wrong, and in many cases the knowing suppression of truth. Macaulay, who can hardly be regarded as addicted to the refinements of an over-fastidious morality, reviewing the professional rules that are recognised in England, asks 'whether it be right that not merely believing, but knowing a statement to be true, he should do all that can be done by sophistry, by rhetoric, by solemn asseveration, by indignant exclamation, by gesture, by play of features, by terrifying one honest witness, by perplexing another, to cause a jury to think that statement false.' Bentham denounced in even stronger language the habitual method of 'the hireling lawyer' in cross-examining an honest but adverse witness, and he declared that there is a code of morality current in Westminster Hall generically different from the code of ordinary life, and directly calculated to destroy the love of veracity and justice. On the other hand, Paley recognised among falsehoods that are not lies because they deceive no one, the statement of 'an advocate asserting the justice or his belief of the justice of his client's cause.' Dr. Johnson, in reply to some objections of Boswell, argues at length, but, I think, with some sophistry, in favour of the profession. 'You are not,' he says, 'to deceive your client with false representations of your opinion. You are not to tell lies to the judge, but you need have no scruple about taking up a case which you believe to be bad, or affecting a warmth which you do not feel. You do not know your cause to be bad till the judge determines it.... An argument which does not convince yourself may convince the judge, and, if it does convince him, you are wrong and he is right.... Everybody knows you are paid for affecting warmth for your client, and it is therefore properly no dissimulation.' Basil Montagu, in an excellent treatise on the subject, urges that an advocate is simply an officer assisting in the administration of justice under the impression that truth is best elicited, and that difficulties are most effectually disentangled, by the opposite statements of able men. He is an indispensable part of a machine which in its net result is acting in the real interests of truth, although he 'may profess feelings which he does not feel and may support a cause which he knows to be wrong,' and although his advocacy is 'a species of acting without an avowal that it is acting.'

It is, of course, possible to adopt the principles of the Quaker and to condemn as unchristian all participation in the law courts, and although the Catholic Church has never adopted this extreme, it seems to have instinctively recognised some incompatibility between the profession of an advocate and the saintly character. Renan notices the significant fact that St. Yves, a saint of Brittany, appears to be the only advocate who has found a place in its hagiology, and the worshippers were accustomed to sing on his festival 'Advocatus et non latro—Res miranda populo.' It is indeed evident that a good deal of moral compromise must enter into this field, and the standards of right and wrong that have been adopted have varied greatly. How far, for example, may a lawyer support a cause which he believes to be wrong? In some ancient legislations advocates were compelled to swear that they would not defend causes which they thought or discovered to be unjust.[35] St. Thomas Aquinas has laid down in emphatic terms that any lawyer who undertakes the defence of an unjust cause is committing a grievous sin. It is unlawful, he contends, to co-operate with any one who is doing wrong, and an advocate clearly counsels and assists him whose cause he undertakes. Modern Catholic casuists have dealt with the subject in the same spirit. They admit, indeed, that an advocate may undertake the defence of a criminal whom he knows to be guilty, in order to bring to light all extenuating circumstances, but they contend that no advocate should undertake a civil cause unless by a previous and careful examination he has convinced himself that it is a just one; that no advocate can without sin undertake a cause which he knows or strongly believes to be unjust; that if he has done so he is himself bound in conscience to make restitution to the party that has been injured by his advocacy; that if in the course of a trial he discovers that a cause which he had believed to be just is unjust he must try to persuade his client to desist, and if he fails in this must himself abandon the cause, though without informing the opposite party of the conclusion at which he had arrived; that in conducting his case he must abstain from wounding the reputation of his neighbour or endeavouring to influence the judges by bringing before them misdeeds of his opponent which are not connected with and are not essential to the case.[36] As lately as 1886 an order was issued from Rome, with the express approbation of the Pope, forbidding any Catholic, mayor or judge, to take part in a divorce case, as divorce is absolutely condemned by the Church.[37]

There have been, and perhaps still are, instances of lawyers endeavouring to limit their practice to cases which they believed to be just. Sir Matthew Hale is a conspicuous example, but he acknowledged that he considerably relaxed his rule on the subject, having found in two instances that cases which at the first blush seemed very worthless were in truth well founded. As a general rule English lawyers make no discrimination on this ground in accepting briefs unless the injustice is very flagrant, nor will they, except in very extreme cases, do their client the great injury of throwing up a brief which they have once accepted. They contend that by acting in this way the administration of justice in the long run is best served, and in this fact they find its justification.