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at the bar," says lord Bacon, “chop with the judge, nor wind himself into the handling of the cause anew, after the judge hath declared his sentence."
SECTION IV.- His duty to his profession.
1. Having shared the fruits, he endeavors to strengthen the root and foundation of the science of law. — " I hold,” says lord Bacon, that every man is a debtor to his profession, from the which, as men do of course seek to receive countenance and profit, so ought they of duty to endeavor themselves, by way of amends, to be a help and ornament thereunto; and sir Edward Coke, differing as he did from lord Bacon upon all subjects, except the advancement of their noble profession, expresses the same sentiment, almost in the same words. “If this,” he says,
or any other of my works, may in any sort, by the goodness of Almighty God, who hath enabled me hereunto, tend to some discharge of that great obligation of duty wherein I am bound to my profession, I shall reap some fruits from the tree of life, and I shall receive sufficient compensation for all my labors."
2. He resists injudicious attempts to alter the law. Knowing that zeal is more frequent than wisdom, that the meanest trade is not attempted without an apprenticeship, but every man thinks himself qualified by intuition for the hardest of all trades, that of government, he is ever ready to resist crude proposals for amendment: his maxim is "to innovate is not to reform."
Lord Bacon, zealous as he was for all improvement; lieving, as he did, in the omnipotence of knowledge, that "the spirit of man is as the lamp of God, wherewith he searcheth the inwardness of all secrets ;” and branding the idolaters of old times as a scandal to the new, says, “It is good not to try experiments in states, except the necessity be urgent, or the utility evident; and well to beware that it be the reformation that draweth on the change, and not
desire of change that pretendeth the reformation : that novelty, though it be not rejected, yet be always suspected; and, as the scripture saith, ' that we make a stand upon the ancient way, and then look about us, and discover what is the straight and right way, and so to walk in it.''
3. He does not resist improvement of the law. – Tenacity in retaining opinion, common to us all, is one of lord Bacon's "Idols of the Tribe," and attachment by professional men to professional knowledge is an "Idol of the Den” common to all professions. "I hate the steamboat,” said an old Greenwich pensioner ; "it's contrary to nature.” Our advocate, therefore, is on his guard against this idolatry. He remembers that the lawyers, and particularly St. Paul, were the most violent opposers of christianity, and that the civilians, upon being taunted by the common lawyers with the cruelty of the rack, answered, “Non ex sævitiâ, sed ex bonitate talia faciunt homines." He does not forget the lawyer in the Utopia, who, when the archbishop of Canterbury, venerable for his age and learning, said, “Upon these reasons it is that I think putting thieves to death is not lawful,” the counsellor answered, " That it could never take place in England without endangering the whole nation.” As he said this, he shook his head, made some grimaces, and held his peace.'
· Pastoret, a French judge, who wrote on penal lays, “ Je voudrois pouvoir défendre l'humanité sans accuser notre législation ; mais qu'est la loi positive auprès des droits immuables de la justice et de la nature ? Des magistrats même, je ne me le dissimule point, sont opposés aux réformes desirés par la nation entière. Nourris dans une connoissance intime de la jurisprudence pénale, ayant pour elle l'attachement si commun pour des idées anciennes, ils y sont encore attachés par un sentiment plus noble. Leur vertu a souvent adouci la sévérité de la loi, et elle leur rend chères des maximes qu'ils rendent meilleurs, en leur communiquant l'impression d'une ame tendre et vertueuse. Ce n'est pas eux qu'on doit craindre : ils finissent par être justes. Mais ce qu'on doit redoubter, parce qu'elle ne sait ni pardonner ni se corriger, c'est la médiocrité routinière, toujours prête à accabler de reproches ceux qui ont le courage d'élever leurs pensées et leurs observations au-dessus du niveau auquel elle
4. He is aware that lawyers are not the best improvers of law. During a debate in the house of lords, June 13, 1827, lord Tenterden is reported to have said, “That it was fortunate that the subject (the amendment of the laws) had been taken up by a gentleman of an enlarged mind (Mr. Peel), who had not been bred to the law; for those who were, were rendered dull, by habit, to many of its defects."
And lord Bacon says, “Qui de legibus scripserunt, omnes vel tanquam philosophi, vel tanquam jurisconsulti, argumentum illud tractaverunt. Atque philosophi proponunt multa dictu pilcra, sed ab usu remota. Jurisconsulti autem, suæ quisque patriæ legum (vel etiam Romanarum, aut Pontificiarum) placitis obnoxii et addicti, judicio sincero non utuntur, sed tanquam e vinculis sermocinentur. Certè cognitio ista ad viros civiles propriè spectat; qui optime nôrunt quid ferat societas humana, quid salus populi, quid æquitas naturalis, quid gentium mores, quid rerumpublicarum formæ diversæ; ideoque possint de legibus ex principiis et præceptis, tam æquitatis naturalis quàm politices, decernere."
5. He resists erroneous modes of altering bad law. — Lawyers have a tendency, instead of inquiring whether the principle of a law is right, to alter upon assumption that the principle is well founded. In 1809, sir Samuel Romilly proposed to alter the law in bankruptcy, by which a creditor has an arbitrary power to withhold his consent to the allowance of the certificate, because it was founded on an erroneous principle. The bill passed the commons, but was rejected in the lords, upon a proposal by lord Eldon,
est condamnée. Ce sont des novateurs, s'écrie-t-elle ; c'est une innovation, répètent, avec un souris méprisant, les producteurs des idées anciennes. Tout projet re réforme est à leurs yeux l'effet de l'ignorance ou du délire, et les plus compatissans sont ceux qui daignent vous plaindre de ce qu'ils appellent l'égarement de votre raison. L'admiration pour ce qui est, pour ce qui fut, succède bientôt au mépris pour ce qu'on propose. Ils se croient plus sages que nos pères, ajoue-t-on; et avec ce mot, tout paroit décidé."
who was then chancellor, that the requisite number and value of signatures should be reduced from four-fifths to three-fifths.
About the same time, sir Samuel proposed that the law, by which the stealing to the amount of 5s. privately, in a shop, was punishable by death, should be altered ; because it was framed upon an erroneous principle, as crime was not prevented by this imaginary calculation of consequences in the mind of the offender. It was suggested that the punishment ought not to be diminished, but the amount of the goods stolen increased.
In various of the acts for the relief of insolvent debtors, which passed to mitigate the severe operation of arbitrary imprisonment for debt, the reason assigned in the preamble was, that the gaol was too full : viz., 6 Geo. III. c. 70. "Whereas, notwithstanding the great prejudice and detriment which occasional acts of insolvency may produce to trade and credit, it may be expedient, in the present condition of the prisons and goals in this kingdom, that some of the prisoners who are now confined should be set at liberty : be it, &c. :" and in May, 1827, it was proposed to parliament to alter the law for arrest on mesne process to the sum of 207.
Our advocate, therefore, resists such attempts, which, instead of meeting, perpetuate the evil, which
“ Keep the word of promise to our ear,
And break it to our hope.”
6. He assists in the improvement of the law. – While he is in doubt, he endeavors to improve himself; but after patient and successful travail after truth, he diffuses the knowledge which he has obtained. Having in the beginning consulted Argus with his hundred eyes, he now trusts to Briareus with his hundred hands.
7. He is not deterred from assisting in the improvement of the law by the fear of worldly injury; — neither in general
conduct nor in particular emergencies, are his plans subservient to considerations of rewards, estate, or title : these have not precedence in his thoughts, but follow in the train of his duty. He says, with sir Samuel Romilly, "It is a common, and may be a convenient mode of proceeding, to prevent the progress of improvement, by endeavoring to excite the odium with which all attempts to reform are attended. Upon such expedients it is scarcely necessary for me to say, that I have calculated. If I had consulted only my own immediate interests, my time might have been more profitably employed in the profession in which I am engaged. If I had listened to the dictates of prudence, if I had been alarmed by such prejudices, I could easily have discovered that the hope to amend law is not the disposition most favorable for preferment. I am not unacquainted with the best road to attorney-generalships and chancellorships: but in that path which my sense of duty dictates to be right, I shall proceed; and from this, no misunderstanding, no misrepresention, shall deter me."
8. He is not deterred from endeavoring to improve the law by the censure ever attendant upon attempts to reform. He knows that the multitude will cry out for Barabbas, and that ignorance has an antipathy to intellect.
“ 'Tis a rich man's pride, there having ever been
Between us and true gentry.” He knows this, but proceeds, secure of his own approbation, and the sympathy of the virtuous and intelligent.
9. If the principle of the law is erroneous, he endeavors to extirpate it with its attendant injustice and litigation. — If the principle of the laws against usury or witchcraft or widows burning themselves, are erroneous, he endeavors to procure their repeal. In these cases he remembers the maxim of sir Edward Coke: “Si quid moves à principio moveas; errores ad principia referre est refellere.” He re