Читать книгу The Seven Lamps of Advocacy - Edward Abbott Sir Parry - Страница 4

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The great advocate is like the great actor: he fills the stage for his span of life, succeeds, gains our applause, makes his last bow, and the curtain falls. Nothing is so elusive as the art of acting, unless indeed it be the sister art of advocacy. You cannot say that the methods of Garrick, Kean or Irving, Erskine, Hawkins or Russell, were the right methods or the only methods, or even that they were the best methods of practising their several arts; you can only say that they succeeded in their day, and that their contemporaries acclaimed them as masters.

Inasmuch as their methods were often new and startling to their own generation, the young student of acting or advocacy is eager to believe that there are no methods and no technique to learn, and no school in which to graduate. Youth is at all times prone to act on the principle that there are no principles, that there is no one from whom it can learn, and nothing to teach. Any one, it seems, can don a wig and gown, and thereby become an advocate. Yet there are principles of advocacy; and if a few generations were to forget to practise these, it would indeed be a lost art. The student of advocacy can draw inspiration and hope from the stored-up experience of his elders. He can trace in the plans and life-charts of the ancients the paths along which they strode, journeying towards Eldorado. True, these figures of forgotten advocates are dim and obscure—only to be painfully seen through the dusty gauzes of forgotten years, pictured for us in drowsy voluminous memoirs, or baldly reported in mouldering law reports; but if we search these records diligently we gradually discern a race of worthy men—see them haunting the old libraries, pacing the ancient halls with their clients, proud of the traditions of their great profession—advocates—advocates all.

It is in an endeavour to recapture something of the lives of these great ones, and the principles upon which they built their success, that I have struggled through forbidding masses of decaying biography in hopes to catch a faint whisper here and there of the triumphant works and days of my professional forbears.

For a race of moderns, that, maybe, care for none of these things, I have lighted again the old lamps which burned so brightly in the days that are gone, which I myself have seen lighting the darkness of our courts, and guiding the footsteps of the judges in the paths of justice and truth. For without a free and honourable race of advocates the world will hear little of the message of justice. Advocacy is the outward and visible appeal for the spiritual gift of justice. The advocate is the priest in the temple of justice, trained in the mysteries of the creed, active in its exercises. For this reason Wyclif in his translation of I John ii. 1 sanctifies the word in the text: “We haue auoket anentis the fadir, Jhesu Crist just.” Modern versions retain “advocate,” but unhappily substitute “righteous” for “just”. Advocacy connotes justice. Upon the altars of justice the advocate must keep his seven lamps clean and burning brightly. In the centre of these must ever be the lamp of honesty.

The English Bar is a society of advocates, though, as Blackstone tells us, we generally call them counsel. The Scots retain the name in their Faculty of Advocates. The word must be insisted upon for its ancientry and meaning. The order of advocates is, in D’Aguesseau’s famous phrase, “as noble as virtue.” Far back in the Capitularies of Charlemagne it was ordained of the profession of advocates “that nobody should be admitted therein but men mild, pacific, fearing God, and loving justice, upon pain of elimination.” So may it continue, world without end.

From the earliest, Englishmen have understood that advocacy is necessary to justice, and honesty is essential to advocacy. The thirteenth century Mirrour of Justices may, as modern jurists hold, be a contemptible legal compilation. It is said to have been written by one Andrew Horn, a fishmonger; and what could he have known, say the learned ones, about the origin and history of legal affairs? Nevertheless, to the reader of to-day the views of the man in the street, the common citizen of a bygone age, about the place in the world of the advocate is more precious than many black-letter folios of crabbed juridical learning.

“Some there be,” says our fishmonger very shrewdly, “who know not how to state their causes or to defend them in court, and some who cannot, and therefore are pleaders necessary; so that what plaintiffs and others cannot or know not how to do by themselves they may do by their serjeants, proctors, or friends. Pleaders are serjeants wise in the law of the realm who serve the commonality of the people, stating and defending for hire actions in court for those who have need of them. Every pleader who acts in the business of another should have regard to four things:—First, that he be a person receivable in court, that he be no heretic, nor excommunicate, nor criminal, nor man of religion, nor woman, nor ordained clerk above the order of sub-deacon, nor beneficed clerk with the cure of souls, nor infant under twenty-one years of age, nor judge in the same cause, nor open leper, nor man attainted of falsification against the law of his office. Secondly, that every pleader is bound by oath that he will not knowingly maintain or defend wrong or falsehood, but will abandon his client immediately that he perceives his wrong-doing. Thirdly, that he will never have recourse to false delays or false witnesses, and never allege, proffer, or consent to any corruption, deceit, lie, or falsified law, but loyally will maintain the right of his client, so that he may not fail through his folly or negligence, nor by default of him, nor by default of any argument that he could urge; and that he will not by blow, contumely, brawl, threat, noise, or villain conduct disturb any judge, party, serjeant, or other in court, nor impede the hearing or the course of justice. Fourthly, there is the salary, concerning which four points must be regarded—the amount of the matter in dispute, the labour of the serjeant, his value as a pleader in respect of his (learning), eloquence, and repute, and lastly the usage of the court.”

Note how from the earliest days the advocate may in no way maintain or defend wrong or falsehood. It is the right of his client he is there to uphold, and the right only. Nevertheless, although an advocate is bound by obligations of honour and probity not to overstate the truth of his client’s case, and is forbidden to have recourse to any artifice or subterfuge which may beguile the judge, he is not the judge of the case, and within these limits must use all the knowledge and gifts he possesses to advance his client’s claims to justice.

Many good men have been troubled with the thought that advocacy implied a certain want of honesty. Boswell asked Doctor Johnson whether he did not think “that the practice of the law in some degree hurt the nice feeling of honesty?” To whom the doctor replied: “Why no, Sir, if you act properly. You are not to deceive your clients with false representations of your opinion: you are not to tell lies to a judge.” Boswell: “But what do you think of supporting a cause which you know to be bad?” Johnson: “Sir, you do not know it to be good or bad till the judge determines it. I have said that you are to state facts fairly; so that your thinking, or what you call knowing, a cause to be bad must be from reasoning, must be from your supposing your arguments to be weak and inconclusive. But, Sir, that is not enough. An argument which does not convince yourself, may convince the judge to whom you urge it: and if it does convince him, why, then, Sir, you are wrong, and he is right. It is his business to judge; and you are not to be confident in your own opinion that a cause is bad, but to say all you can for your client, and then hear the Judge’s opinion.” Boswell: “But, Sir, does not affecting a warmth when you have no warmth, and appearing to be clearly of one opinion when you are in reality of another opinion, does not such dissimulation impair one’s honesty? Is there not some danger that a lawyer may put on the same mask in common life, in the intercourse with his friends?” Johnson: “Why no, Sir, everybody knows you are paid for affecting warmth for your client; and it is, therefore, properly no dissimulation: the moment you come from the bar you resume your usual behaviour. Sir, a man will no more carry the artifice of the bar into the common intercourse of society, than a man who is paid for tumbling upon his hands will continue to tumble upon his hands when he should walk on his feet.”

I like the rough English common-sense of this; but the Irishman in the dock had an inspired vision of the same truth when, in answer to the Clerk of the Crown, who called upon him with the familiar interrogatory, “Guilty or Not Guilty?” he replied with a winning smile, “And how can I tell till I hear the evidence?”

When Lord Brougham, at a dinner to M. Berryer, claimed in his speech that the advocate should reckon everything as subordinate to the interests of his client, Lord Chief Justice Cockburn, “feeling that our guest might leave us with a false impression of our ideals,” set forth his views of an advocate’s duty, concluding with these memorable words: “The arms which an advocate wields he ought to use as a warrior, not as an assassin. He ought to uphold the interests of his client per fas, and not per nefas. He ought to know how to reconcile the interests of his clients with the eternal interests of truth and justice.”

The best advocates of all generations have been devotees of honesty. Abraham Lincoln founded his fame and success in the profession on what some called his “perverse honesty.” On his first appearance in the Supreme Court of Illinois he addressed the court as follows: “This is the first case I have ever had in this court, and I have therefore examined it with great care. As the court will perceive by looking at the abstract of the record, the only question in the case is one of authority. I have not been able to find any authority to sustain my side of the case, but I have found several cases directly in point on the other side. I will now give these authorities to the court, and then submit the case.”

There have been advocates who regard such a course as quixotic. The late Joshua Williams was asked whether, if an advocate knows of a decided case in point against him which he has reason to believe is not known to the other side, he is bound to reveal it, and gave it as his opinion that “in principle this is no part of his duty as an advocate.” It must be remembered that this opinion was given when a host of cases were decided against their merits on purely technical points of law; but there is no doubt what the practice ought to be, and what among English advocates the practice is.

If an advocate knows the law to be x, it is not honest to lead the court to believe that it is y. Whether the advocate does this by directly mis-stating the law, or by deliberately omitting to state it fully within the means of his knowledge, it is equally without excuse, and dims the lamp of honesty.

For the advocate must remember that he is not only the servant of the client, but the friend of the court, and honesty is as essential to true friendship as it is to sound advocacy.