The Map of Life / Conduct and Character

by William Edward Hartpole Lecky

In the conduct of a case there are rules analogous to those which distinguish between honourable and dishonourable war, but they are less clearly defined and less universally accepted. In criminal prosecutions a remarkable though very explicable distinction is drawn between the prosecutor and the defender. It is the etiquette of the profession that the former is bound to aim only at truth, neither straining any point against the prisoner nor keeping back any fact which is favourable to him, nor using any argument which he does not himself believe to be just. The defender, however, is not bound, according to professional etiquette, by such rules. He may use arguments which he knows to be bad, conceal or shut out by technical objections facts that will tell against his clients, and, subject to some wide and vague restrictions, he must make the acquittal of his client his first object.[38]

Sometimes cases of extreme difficulty arise. Probably the best known is the case of Courvoisier, the Swiss valet, who murdered Lord William Russell in 1840. In the course of the trial Courvoisier informed his advocate, Phillips, that he was guilty of the murder, but at the same time directed Phillips to continue to defend him to the last extremity. As there was overwhelming evidence that the murder must have been committed by some one who slept in the house, the only possible defence was that an equal amount of suspicion attached to the housemaid and cook who were its other occupants. On the first day of the trial, before he knew the guilt of his client from his own lips, Phillips had cross-examined the housemaid, who first discovered the murder, with great severity and with the evident object of throwing suspicion upon her. What course ought he now to pursue? It happened that an eminent judge was sitting on the bench with the judge who was to try the case, and Phillips took this judge into his confidence, stated privately to him the facts that had arisen, and asked for his advice. The judge declared that Phillips was bound to continue to defend the prisoner, whose case would have been hopeless if his own counsel abandoned him, and in defending him he was bound to use all fair arguments arising out of the evidence. The speech of Phillips was a masterpiece of eloquence under circumstances of extraordinary difficulty. Much of it was devoted to impugning the veracity of the witnesses for the prosecution. He solemnly declared that it was not his business to say who committed the murder, and that he had no desire to throw any imputation on the other servants in the house, and he abstained scrupulously from giving any personal opinion on the matter; but the drift of his argument was that Courvoisier was the victim of a conspiracy, the police having concealed compromising articles among his clothes, and that there was no clear circumstance distinguishing the suspicion against him from that against the other servants.[39]

The conduct of Phillips in this case has, I believe, been justified by the preponderance of professional opinion, though when the facts were known public opinion outside the profession generally condemned it. Some lawyers have pushed the duty of defence to a point which has aroused much protest even in their own profession. 'The Advocate,' said Lord Brougham in his great speech before the House of Lords in defence of Queen Caroline, '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 consequences, if his fate it should unhappily be to involve his country in confusion for his client's protection.'

This doctrine has been emphatically repudiated by some eminent English lawyers, but both in practice and theory the profession have differed widely in different courts, times and countries. How far, for example, is it permissible in cross-examination to browbeat or confuse an honest but timid and unskilful witness; to attempt to discredit the evidence of a witness on a plain matter of fact about which he had no interest in concealment by exhuming against him some moral scandal of early youth which was totally unconnected with the subject of the trial; or, by pursuing such a line of cross-examination, to keep out of the witness-box material witnesses who are conscious that their past lives are not beyond reproach? How far is it right or permissible to press legal technicalities as opposed to substantial justice? Probably most lawyers, if they are perfectly candid, will agree that these things are in some measure inevitable in their profession, and that the real question is one of degree, and therefore not susceptible of positive definition. There is a kind of mind that grows so enamoured with the subtleties and technicalities of the law that it delights in the unexpected and unintended results to which they may lead. I have heard an English judge say of another long deceased that he had through this feeling a positive pleasure in injustice, and one lawyer, not of this country, once confessed to me the amusement he derived from breaking the convictions of criminals in his state by discovering technical flaws in their indictments. There is a class of mind that delights in such cases as that of the legal document which was invalidated because the letters A.D. were put before the date instead of the formula 'in the year of Our Lord,' or that of a swindler who was suffered to escape with his booty because, in the writ that was issued for his arrest, by a copyist's error the word 'sheriff' was written instead of 'sheriffs,' or that of a lady who was deprived of an estate of £14,000 a year because by a mere mistake of the conveyancer one material word was omitted from the will, although the clearest possible evidence was offered showing the wishes of the testator.[40] Such lawyers argue that in will cases 'the true question is not what the testator intended to do, but what is the meaning of the words of the will,' and that the balance of advantages is in favour of a strict adherence to the construction of the sentence and the technicalities of the law, even though in particular cases it may lead to grave injustice.

It must indeed be acknowledged that up to a period extending far into the nineteenth century those lawyers who adopted the most technical view of their profession were acting fully in accordance with its spirit. Few, if any, departments of English legislation and administration were till near the middle of this century so scandalously bad as those connected with the administration of the civil and the criminal law, and especially with the Court of Chancery. The whole field was covered with a network of obscure, intricate, archaic technicalities; useless except for the purpose of piling up costs, procrastinating decisions, placing the simplest legal processes wholly beyond the competence of any but trained experts, giving endless facilities for fraud and for the evasion or defeat of justice, turning a law case into a game in which chance and skill had often vastly greater influence than substantial merits. Lord Brougham probably in no degree exaggerated when he described great portions of the English law as 'a two-edged sword in the hands of craft and of oppression,' and a great authority on chancery law declared in 1839 that 'no man, as things now stand, can enter into a chancery suit with any reasonable hope of being alive at its termination if he has a determined adversary.'[41]

The moral difficulties of administering such a system were very great, and in many cases English juries, in dealing with it, adopted a rough and ready code of morals of their own. Though they had sworn to decide every case according to the law as it was stated to them, and according to the evidence that was laid before them, they frequently refused to follow legal technicalities which would lead to substantial injustice, and they still more frequently refused to bring in verdicts according to evidence when by doing so they would consign a prisoner to a savage, excessive, or unjust punishment. Some of the worst abuses of the English law were mitigated by the perjuries of juries who refused to put them in force.

The great legal reforms of the past half-century have removed most of these abuses, and have at the same time introduced a wider and juster spirit into the practical administration of the law. Yet even now different judges sometimes differ widely in the importance they attach to substantial justice and to legal technicalities; and even now one of the advantages of trial by jury is that it brings the masculine common sense and the unsophisticated sense of justice of unprofessional men into fields that would otherwise be often distorted by ingenious subtleties. It is, however, far less in the position of the judge than in the position of an advocate that the most difficult moral questions of the legal profession arise. The difference between an unscrupulous advocate and an advocate who is governed by a high sense of honour and morality is very manifest, but at best there must be many things in the profession from which a very sensitive conscience would recoil, and things must be said and done which can hardly be justified except on the ground that the existence of this profession and the prescribed methods of its action are in the long run indispensable to the honest administration of justice.

The same method of reasoning applies to other great departments of life. In politics it is especially needed. In free countries party government is the best if not the only way of conducting public affairs, but it is impossible to conduct it without a large amount of moral compromise; without a frequent surrender of private judgment and will. A good man will choose his party through disinterested motives, and with a firm and honest conviction that it represents the cast of policy most beneficial to the country. He will on grave occasions assert his independence of party, but in the large majority of cases he must act with his party even if they are pursuing courses in some degree contrary to his own judgment.

Every one who is actively engaged in politics—every one especially who is a member of the House of Commons—must soon learn that if the absolute independence of individual judgment were pushed to its extreme, political anarchy would ensue. The complete concurrence of a large number of independent judgments in a complicated measure is impossible. If party government is to be carried on, there must be, both in the Cabinet and in Parliament, perpetual compromise. The first condition of its success is that the Government should have a stable, permanent, disciplined support behind it, and in order that this should be attained the individual member must in most cases vote with his party. Sometimes he must support a measure which he knows to be bad, because its rejection would involve a change of government which he believes would be a still greater evil than its acceptance, and in order to prevent this evil he may have to vote a direct negative to some resolution containing a statement which he believes to be true. At the same time, if he is an honest man, he will not be a mere slave of party. Sometimes a question arises which he considers so supremely important that he will break away from his party and endeavour at all hazards to carry or to defeat it. Much more frequently he will either abstain from voting, or will vote against the Government on a particular question, but only when he knows that by taking this course he is simply making a protest which will produce no serious political complication. On most great measures there is a dissentient minority in the Government party, and it often exercises a most useful influence in representing independent opinion, and bringing into the measure modifications and compromises which allay opposition, gratify minorities, and soften differences. But the action of that party will be governed by many motives other than a simple consideration of the merits of the case. It is not sufficient to say that they must vote for every resolution which they believe to be true, for every bill or clause of a bill which they believe to be right, and must vote against every bill or clause or resolution about which they form an opposite judgment. Sometimes they will try in private to prevent the introduction of a measure, but when it is introduced they will feel it their duty either positively to support it or at least to abstain from protesting against it. Sometimes they will either vote against it or abstain from voting at all, but only when the majority is so large that it is sure to be carried. Sometimes their conduct will be the result of a bargain—they will vote for one portion of a bill of which they disapprove because they have obtained from the Government a concession on another which they think more important. The nature of their opposition will depend largely upon the strength or weakness of the Government, upon the size of the majority, upon the degree in which a change of ministry would affect the general policy of the country, upon the probability of the measure they object to being finally extinguished, or returning in another year either in an improved or in a more dangerous form. Questions of proportion and degree and ulterior consequences will continually sway them. Measures are often opposed, not on their own intrinsic merits, but on account of precedents they might establish; of other measures which might grow out of them or be justified by them.