so much to abet his client's guilt as to defend his innocence. But is it to be taken as the deliberate expression of the speaker's opinion or not? If the theory contained in the foregoing passage be true, he may, while he uttered it, have entirely disbelieved it. And this disbelief would be quite consistent with his argument, paradoxical as such an assertion may appear. For observe, it is the speech of an advocate for his client, and the assumption is, that in that character he may say and do anything, provided only it tends to exculpate his client. But if this be so, the very doctrine he promulgates with so much eloquence may have been adopted merely for the purpose of the moment, and no value can be attached to a statement that is made under circumstances, which, according to the hypothesis, absolve the author from the ordinary obligation to speak the truth. Cicero, indeed, without adopting any such overstrained view of an advocate's duty, does, in one passage of his orations, contend that a falsehood told to save an unfortunate fellow-citizen from ruin ought not to be too severely blamed.1

But although it is impossible to adopt the principles here laid down, a certain latitude must be allowed to an advocate, the limits of which it is not easy to define, and which must be left in a great degree to his own good sense and discretion. It would be rendering his office almost useless, if every impas

1 Si honesto et misericordi mendacio saluti civis calamitosi consultum esse vellemus: tamen hominis non esset, in tanto discrimine et periculo civis repellere et coarguere nostrum mendacium.—Cic. pro Ligario, 5.

The question of how far, and in what circumstances, falsehood is justifiable, has much perplexed casuists. St. Augustin calls it magna questio, latebrosa tractatio ; disputatio inter doctos alternans.-De Mendacio, cap. I. He himself was inclined to maintain that it is sinful in any given state of things to tell an untruth. And yet even he asserted this, to use the words of Jer. Taylor, "as his manner is, with some variety. Physicians can never apply their remedies, unless they pretend warrants or compliances, and use little arts of wit and cozenage. This and the like were so usual, so permitted to physicians, that it grew to a proverb, mentiris ut medicus, which yet was always understood in the way of charity, and with honour to the profession."-Jer. Taylor, Ductor Dubitantium, Bk. iii. c. 2. The different

CHAP. X.

QUESTION OF MORAL DUTY.

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sioned speech which he delivers on behalf of another were to be tested by the same canons according to which we criticise the opinions expressed in an essay or a sermon. It is as true now as it was in the time of Cicero, that it would be a great mistake to look for the deliberate convictions of the man in the address of the counsel.1

To a certain extent there may be the suppressio veri-for no one surely will contend that it is the duty of an advocate to bring forward facts of the existence of which he may be conscious, but which would be ruinous to his client-although there ought never to be the suggestio falsi. No doubt it is difficult to steer the right course between this Scylla and Charybdis, so as to avoid the infraction of a moral duty; and the temptation is sometimes great to overleap the boundaries that separate falsehood from truth. And herein consists one of the chief trials of the profession, and constant vigilance is required lest the speaker should be hurried away by his zeal for his client to misrepresent facts, or pledge himself to the belief of opinions which he does not entertain.

But it is worth while to consider whether the accusation which is so commonly brought against lawyers, and especially in their character of advocates, that they violate a moral duty by being ready to espouse either side of a question in a court of justice, is or is not well founded. If it be true, as Junius

opinions on the subject are collected by Grotius, De iure Belli et Pacis, lib. iii. c. 1, and Puffendorf, De jure Naturæ et Gentium, lib. iv. c. 1, both of whom admit that there are several occasions on which it is lawful to deceive. In the Old Testament there are many remarkable instances of this. The one most frequently cited is the falsehood of the Hebrew midwives, of whom we are told that “Therefore God dealt well with the midwives."-Exod. i. 20. On this passage even St. Augustin says, O pium pro salute mendacium! and compare 2 Kings viii. 10: "And Elisha said unto him, 'Go, say unto him, Thou mayest certainly recover;' howbeit the Lord hath showed me that he shall surely die." I do not find that any of these authors alludes to the untruth told by the prophet Jeremiah, at the suggestion of King Zedekiah, Jer. xxxviii. 24-27.

1 Sed errat vehementer, si quis in orationibus nostris, quas in judiciis habuimus, auctoritates nostras consignatas se habere arbitratur.-Pro Cluentio, 50.

has said, that "the indiscriminate defence of right and wrong contracts the understanding while it corrupts the heart," can such a blighting result flow from the profession of the law as it is practised in this country?

It would indeed be a humiliating reflection to think that the splendid triumphs of the bar have been achieved by a venal prostitution of the intellect, that the stream of its eloquence is polluted at the source, and that the wonderful ingenuity and skill which mark the higher efforts of forensic oratory are little better than elaborate perversions of fact. "To make the worse appear the better side," may be an intellectual, but can never be a moral victory. Success in such a conflict has no ennobling feature, and happily mankind are so constituted as to value the heart more than the head, and withhold approbation from those whose powers of argument are better than their principles. It is a remarkable, and perhaps a distinguishing feature of the present time, that public reputation and influence must rest on a substratum of moral worth. Private character is of more importance now than at any former period, and where motives are suspected, the degree of influence exercised by an individual is small indeed. If then there exists in the minds of many an opinion, and it cannot be disguised that it does exist, that the profession of an advocate is inconsistent with the nice precepts of morality, it will have to undergo a more than ordinary share of odium. And from this odium it may not be unseasonable or impertinent briefly to attempt to vindicate the office.

It seems probable that such an unfavourable opinion has arisen from confounding two things totally distinct-the duty of the advocate and the office of the judge. It must never be forgotten that, in the case of pleading at the bar, these duties never coalesce. The individuals are different, and each has a separate province, within which he has to act. Other situations and other circumstances are not analogous.

In almost every

place except a court of justice, the speaker takes upon himself

CHAP. X. PECULIAR POSITION OF ADVOCATES.

393

to decide upon matters of opinion and fact. If he be a member of a body in which the will of the majority is law, he is a party to the judgment which he has by his arguments supported. Without those arguments the particular decision would perhaps not have been arrived at. He does not appeal to that majority as a body distinct from himself. Whether they agree with him or not, his speech is the open expression of that opinion, which has determined him individually to vote in some particular way. If he sincerely believes that his views are correct and ought to be adopted, he is right in endeavouring to influence his hearers. If not, he is a hypo

crite.

But the situation of the advocate is very different. His business is to supply materials out of which a decision is to be formed by others; but not all the materials-only those which relate to one side and view of the question; for he does not stand before the tribunal to array conflicting probabilities, and weigh minute differences, as though to him were committed the task of adjudicating between opposing claims. He is to urge as forcibly as he can all the arguments which may be suggested in favour of one particular side, and present them to the understanding of those whose duty and vocation it is to weigh everything that may be advanced on both sides, and carefully ascertain the validity of the reasoning by which they are respectively supported. All that an advocate undertakes to perform, in the point of view in which we are now considering him, is this: He says, "I will bring before the notice of the judge all that can be maintained in favour of one side of the question. The same will be done by my opponent, and the court will decide between us." He stands wholly separate and distinct from the tribunal, which pronounces its judgment upon the value it attaches to his arguments; and which recognises their cogency by adopting them, or shows its sense of their insufficiency by rejecting them. The only case in which we can conceive such a situation as this being fairly open to

objection on the ground of morality, would be where the attainments and intellectual power of the advocate were so vastly superior to those of the tribunal he was addressing, that he could as it were force it to surrender its own judgment to his, and extort from it any sentence which suited that side of the cause on which he happens to be retained.

But this is obviously a chimerical alarm. Such a phenomenon has never yet appeared in the courts of Westminster, and so long as the roll of judges continues to add to the list the brightest names amongst the members of the bar, we may safely predict never will. The motto of the Chevalier Bayard might well serve as the inscription over the gates of our courts of law-and "sans peur et sans reproche," proclaim to the world that impartial justice will be there dealt out to all-alike indifferent to the frowns of power, the temptations of corruption, and the subtle artifices of practised ingenuity. It is remarkable, however, that Puffendorf, in his Law of Nature and Nations, makes use of the argument derived from the difference between the functions of the advocate and the judge, to justify conduct revolting to common honesty, and contends for a degree of license in favour of the former, which the most unscrupulous would hardly venture to claim. He says, For since the judge is supposed fully to understand the law, the advocate, by producing false laws, or false authorities, is not likely to prevail to any purpose; and he is never credited upon his bare assertion, but obliged to produce sufficient proof. And therefore if a guilty person do by this means sometimes escape unpunished, the fault is not to be charged on the advocate, or on the prisoner, but on the judge who had not the wisdom to distinguish between right and wrong." In other words, a cunning counsel may falsify quotations, and impose upon the ignorance of a judge-and think that he shifts from himself the responsibility of a deliberate untruth on the plea that the court ought to be able to detect the fraud! A pickpocket

1 Lib. iv. 1, § 21.

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