THE LAW MAGAZINE. ART. I.-DUTIES OF LAWYERS. The Lawyer: His Character and Rule of Holy Life. After the Manner of George Herbert's "Country Parson." By Edward O'Brien, Barrister-at-Law. London: 1842. THIS book (including the Introduction) is conceived in an excellent spirit, and written in a clear, nervous, manly style. The Introduction by the editor, who signs himself "A. DE V." (Aubrey de Vere) gives the following account of the author : "The author of the following work was the late Edward O'Brien, third son of the late Sir Edward O'Brien, of Dromoland. He was born in the year 1808. After taking his degree at Trinity College, Cambridge, he became a member of the Irish bar. He died in 1840 of a fever caught in consequence of his exertions on behalf of some religious and charitable societies established in Dublin; exertions which, when added to his professional pursuits, were more than his strength was equal to. "In the composition of this book the author had no thoughts of fame, or what is called literary success. His impulse was simply the love of justice: his only motive was the desire to assist others in the performance of their duty. "I can truly affirm of this treatise that it is a sincere book. It came from the heart of its author, and embodies his most solemn convictions. A book so written is as the very soul of a man conversing with his fellow men recording for their benefit the best thoughts of his best hours: presenting them in a brief space, with principles, the sifted and select result of all his studies, meditations, and experience: counselling them, exhorting them: witnessing for what he has known of truth; and putting it forth, with his prayers, that it may serve to the need of his brethren. Such a work, if read at all, should be read with attention and respect: unless we approach it in an ingenuous spirit, willing to understand before we criticise, deeming it possible that the objections which present themselves to our minds so readily, may have occurred to the author also, and been for good reasons put aside; desiring to stand, at least for the time, on the spot which he occupied, and contemplate the subject from his point of view; if we do not possess this small measure of self-command and philosophical docility, then there does not exist between our mind and that of the writer such a degree of moral conformity as is necessary for the appreciation of his work. We shall in such case do ourselves least injury, and our monitor least injustice, by leaving his book unread. "I have offered this caution, because at the present day books are often put forth in a trifling or mercenary spirit; and are therefore as petulantly condemned as they were corruptly written. The present work is particularly obnoxious to rash judgments, because it assails popular prejudices: and it can no longer be defended by him whose vigorous intellect might at a later time have further supported his present argument; whose consistent and upright conduct as a lawyer would have proved the best vindication of his principles. It deserves, however, a candid consideration. It is the gift, alas! the legacy of one who did not write a single line without deep reflection and a worthy intention." We firmly believe he did not, and in the remarks we are about to offer on what he has written, we shall endeavour strictly to comply with his friend's request, by standing awhile on the spot which he occupied; which, by the way, was Goethe's sine quâ non of criticism. At the same time it does not appear to us that the work assails popular prejudices; on the contrary, it brings talent, learning, high principle and religious feeling in aid of them; for if there be a prejudice more popular or more strongly rooted than another, it is that touching the right claimed and the practice pursued by lawyers, of advocating a side, without regard to their own private opinion of its truth, justice, or equity; and a good third of Mr. O'Brien's book is taken up with arguments and authorities to show, that there is abundance of evil in the practice and no foundation for the right. A highly distinguished and popular writer-popular in the best sense, i. e. among the most refined and intelligent of the educated classes-thus alludes to the professional doctrine on the subject: "Mr. Montagu (says Mr. Macaulay) conceives that none but the ignorant and unreflecting can think Bacon censurable for any thing that he did as counsel for the crown, and maintains that no advocate can justifiably use any discretion as to the party for whom he appears. We will not at present inquire whether the doctrine which is held on this subject by English lawyers be or be not agreeable to reason or morality;-whether it be right that a man should, with a wig on his head, and a band round his neck, do for a guinea what without these appendages he would think it wicked and infamous to do for an empire;-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. It is not necessary on the present occasion to decide these questions. The professional rules, be they good or bad, are rules to which many wise and virtuous men have conformed, and are daily conforming. If, therefore, Bacon did no more than these rules required of him, we shall readily admit that he was blameless." This passage, written with peculiar reference to Bacon's conduct, does not (and probably was not intended to) contain a fair statement of the question, which is hardly whether a man with a wig on his head and a band round his neck should do for a guinea what without these appendages (i. e. in his individual capacity) he would think it wicked and infamous to do for an empire; yet it is eagerly pressed into the service by Mr. O'Brien, whilst in the very act of censuring rhetorical statements in advocacy. But let this pass. We quote the passage to show that he is not fighting quite so uphill a game as his friend and editor would persuade himself, and indeed nothing less than a firm conviction that the majority of mankind still think with him, would induce us to return to a subject which we flattered ourselves we had exhausted in replying to controversialists of a very different kind-including the honourable member for Shrewsbury, and the acute secretary to the Poor Law Commissioners1-who laid no particular stress on sundry religious considerations 123 Law Mag. 159, and 25 Law Mag. 143. which Mr. O'Brien makes the groundwork of the argument. We fear, moreover, that in our former remarks we took too much for granted. We tacitly assumed that the professional rules were known and understood; we now find that they are not, and we believe we shall get rid at once of the chief difficulty and an infinity of maudling moralising by stating them. In the first place, then, it is not true that a barrister is ever required to undertake a cause which he knows to be unjust. He looks (and can look) no further than his instructions. If he finds it there stated that the claim or defence is tainted with dishonesty, he is at full liberty to return his brief. But then the alleged dishonesty must depend on a plain matter of fact, not on bare suspicion, still less on legal inference. A barrister has a right to say; "You here as good as tell me you are a rogue, and I positively decline acting for you;" but he has no right to say, "I suspect your motives," or doubt your veracity," or "I draw a different conclusion from the facts," and "therefore I repudiate the case;" because this would be to usurp the functions of the jury or the judge. The attorney indeed may insist on being satisfied as to the strict honesty of the case, and all respectable practitioners do; but the barrister must stick to his instructions, or the separation between the two branches of the profession would be destroyed. We presume no one would insist on his looking out for evidence or examining witnesses himself. In criminal proceedings, again, no barrister would be bound or ought to undertake an unfounded prosecution; i. e. unfounded on the face of it, for, as we said before, he must not take upon himself to decide in cases of mixed motives or doubtful facts. He may, however, and ought to undertake the defence of any accused person that may apply to him, even when such person has confessed the crime; for forms and rules must be observed in all cases; legal guilt consists in the breach of some established law, within which the alleged offender should be brought; and it is almost always necessary that the facts should be clearly proved in order to enable the judge to award the punishment. Besides, it would hardly do to hang or transport a man at once on an attorney or barrister's surmise, opinion, or unsworn statement. |