[1] This oath seems first to have been prescribed by the Act of
Assembly, passed August 22d, 1752: "An act for regulating and
establishing fees." (1 Smith's Laws, 218.) It has been copied into the
revised Act of 14th April, 1834, s. 69 (Pamphlet Laws, 354), with the
addition of the clause to "support the Constitution of the United
States, and the Constitution of this Commonwealth." In England, by the
Stat. 4 Henry IV, c. 18 (A. D. 1402), it was provided, "that all
attorneys shall be examined by the Justices, and by their discretion,
their names put in the roll, and they that be good and virtuous, and of
good fame, shall be received, and sworn well and truly to serve in their
offices, and especially that they make no suit in a foreign country."
The present oath or affirmation is, that he "will truly and honestly
demean himself in the practice of an attorney, according to the best of
his knowledge and ability." Stat. 2 Geo. II, c. 23 (A. D. 1729); Stat. 6
& 7 Vict. c. 73. The qualification of a sergeant-at-law, is given at
large in 2 Inst. 213; and in the valuable old book, "The Mirror of
Justices," chap. 2, sec. 5, it is said that "every countor is chargeable
by the oath, that he shall do no wrong nor falsity, contrary to his
knowledge, but shall plead for his client the best he can, according to
his understanding."
[2] Hurst's case, 1 Levins, 72; 1 Sid. 94, 151; Raym. 56, 94; 1 Keb.
349, 354, 387.
[3] See Austin's case, 5 Rawle, 203. "An attorney at law," says C. J.
Gibson, "is an officer of the court. The terms of the oath, exacted of
him at his admission to the bar, prove him to be so;" "you shall behave
yourself in your _office_ of attorney," &c. Again: it is declared in the
Constitution, Article 1st, sec. 18 (Art. 1, sec. 19, of the amended
Constitution of 1838), that "no member of Congress, or other person
holding any _office_ (except _attorney at law_, and in the militia),
shall be a member of either House," &c., which is a direct
constitutional recognition. Prior to the Act of 14th April, 1834, which
expressly required from them an oath to support the Constitution of the
United States and the Constitution of the Commonwealth of Pennsylvania,
attorneys at law were invariably held to be within the provisions of
Art. 6, sect. 3, of the Constitution of the United States, and of Art.
8, of the Constitution of Pennsylvania, requiring all officers,
executive and judicial, to take the oath to support those constitutions
respectively. In Wood's case (1 Hopkins, 6), solicitors in chancery were
held to be officers, within the meaning of a similar clause in the
Constitution of New York. "The admission of an attorney, solicitor, or
counsellor," says the opinion in that case, "is a general appointment to
conduct causes before the courts: this station, thus conferred by public
authority, has its peculiar powers, privileges, and duties, and thus
becomes an office in the administration of justice." Leigh's case (1
Munford, 468), in which it was held, that attorneys are not officers,
within the meaning of the statute of Virginia, requiring all persons
holding any office, or place, under the commonwealth, to take an oath
against duelling, does not perhaps conflict with this view. The case of
Byrne's Admr's _v._ Stewart's Admr's (3 Desaus. 478), may, however, be
found upon examination somewhat at variance--not the decision itself,
but the views expressed by Chancellor Watres in his opinion. The case
simply decided what would seem unquestionable, that the legislature had
a right to prohibit any public officer, judicial or otherwise, from
practising as an attorney or solicitor. The Chancellor said, "He (a
solicitor) can he considered in no other light than that of a private
agent for the citizens of the country, who may employ him to do their
legal business in the courts; and although the law requires of him
certain qualifications, and he receives a license from the judges, yet
his office is no more a public one, than would be any other profession
or trade, which the legislature might choose to subject to similar
regulations, and which is the practice in many other countries. It
cannot be doubted, that a man's trade or profession is his property; and
if a law should be passed avowedly for the purpose of restraining any
member of this bar, who was not a public officer, from exercising his
profession, I should declare such law void." This is to assume high
ground; but the idea that a man's profession or trade cannot be
constitutionally interfered with by legislative enactments, seems
scarcely tenable, and especially, so far as the profession of the law is
concerned, in view of the absolute power with which every court is
clothed, both as to the admission of their attorneys, and forejudging or
striking them from the roll. Act of 14th April, 1834, s. 73 (Pamphlet
Laws, 354). Courts of record and of general jurisdiction, are vested
with exclusive power to regulate the conduct of their own officers, and
in this respect their decisions are put on the same footing with that
numerous class of cases, which is wisely confided to the legal
discretion and judgment of the court, having jurisdiction over the
subject-matter. Commonwealth _v._ The Judges, 5 Watts & Serg. 272; _Ex
parte_ Burr, 9 Wheat. 531; _Ex parte_ Brown, 1 Howard (Miss.) Rep. 306;
Perry _v._ State, 3 Iowa, 550; In the matter of Wills, 1 Mann, 392. "The
power is one which ought to be exercised with great caution, but which
is, we think, incidental to all courts, and necessary for the
preservation of decorum and for the respectability of the profession."
Marshall C. J. 9 Wheat. 531.
[4] Per Gibson, C. J., in Austin's case, 5 Rawle, 204.
[5] The exact weight of one hundred silver dollars of the old coinage is
85.9375 ounces; of the new coinage, 80 ounces.
[6] _Ex parte_ Carter, 1 Philada. Rep. 507. Blaike's Lessee _v._
Chambers, 1 Serg. & Rawle, 169.
[7] Court and juries have their respective spheres assigned to them,
within which each is to act and move, without encroaching upon the
jurisdiction or province of the other. In order, then, that jurors as
well as others may know that the direction and decision of the court, on
any question of law arising in the course of the trial of an issue of
fact, is not to be disregarded, and that a verdict given against such
direction, whatever it may be, can never avail anything, unless it be to
occasion additional delay, trouble, and expense to the parties, as also
to the public, the course of the court is to set the verdict aside, and
to order a new trial. And a court, from whose decisions on questions of
law, an appeal lies, by writ of error or otherwise, ought never to
depart from this course; otherwise the party against whom the verdict is
given loses the benefit of such appeal, and of having the question
decided by the Appellate Court, which would be a most unjust and illegal
deprivation of his right. Per Kennedy, J., in Flemming _v._ Marine Ins.
Co. 4 Whart. 67. After two concurring verdicts against the direction of
the court in point of law, a new trial will still be awarded.
Commissioners of Berks County _v._ Ross, 3 Binn. 520. "Principles the
most firmly established might be overturned, because a second jury were
obstinate and rash enough to persevere in the errors of the first, in a
matter confessed by all to be properly within the jurisdiction of the
court; I mean the construction of the law arising from undisputed
facts." Per Tilghman, C. J., Ibid. 524. It is not necessary to refer to
the numerous cases, both in the English and American courts, which
accord with these principles. A judicious selection of the leading ones
is to be found in the note to 1 Wharton's Troubat & Haly, 529. The text
and the note are confined, of course, to civil cases.
[8] Burnet's Life of Sir Matthew Hale, 72.
[9] An attorney is not answerable for every error or mistake; he ought
not to be liable, in cases of reasonable doubt. Pitt _v._ Yalden, 4
Burrows, 2060. He shall be protected, when he acts with good faith, and
to the best of his skill and knowledge. Gilbert _v._ Williams, 8 Mass.
57. The want of ordinary care and skill in such a person is gross
negligence. Holmes _v._ Peck, 1 Rhode Island, Rep. 245; Cox _v._
Sullivan, 7 Georgia, 144; Pennington _v._ Yell, 6 Engl. 212. As between
the client and the attorney, the responsibility of the latter is as
great and as strict here as in any country when want of good faith or
attention to the cause is alleged; but in the exercise of the
discretionary power usually confided in this country, and especially
when the client resides at a great distance, an attorney ought not to be
held liable where he has acted honestly and in a way he thought was for
the interest of his client. Lynch _v._ The Commonwealth, 16 Serg. &
Rawle, 368; Stakely _v._ Robison, 10 Casey, 317. When, however, an
attorney disobeys the lawful instructions of his client, and a loss
ensues, for that loss the attorney is responsible. Gilbert _v._
Williams, 8 Mass. 57. If the holder of a note place it in the hands of
an attorney-at-law, with instructions to bring suit upon it, and the
attorney, acting under the honest impression that he would best promote
the interests of his client by not bringing suit immediately, omits to
do so, and the money is afterwards lost by the insolvency of the maker,
the attorney is liable in an action against him; and the measure of
damages is what might have been recovered from the maker of the note, if
suit had been brought when the note was placed in the hands of the
attorney for collection. Cox _v._ Livingston, 2 Watts. & Serg. 103;
Wilcox _v._ Plummer, 4 Peters, 172. But a client has no right to control
his attorney in the due and orderly conduct of a suit, and it is his
duty to do what the court would order to be done, though his client
instruct him otherwise. Anon., 1 Wendell, 108.
[10] An attorney is not compelled to appear for any one unless he takes
his fee or backs the warrant. Anon., 1 Salk. 87. The attorney cannot
determine the relation himself, to his client's detriment. Love _v._
Hall, 3 Yerger, 408. When a solicitor appointed by a party has acted as
such, he cannot be displaced by the appointment of another, without an
order of the court. Mumford _v._ Murray, 1 Hopkins, 369. After an
attorney has entered his name upon the record, he cannot withdraw it
without leave of the court; and until so withdrawn the service of a
citation upon him in case of appeal is sufficient. United States _v._
Curry, 6 Howard, U. S. Rep. 106.
[11] A counsel, attorney, or solicitor, will in no case be permitted,
even if he should be willing to do so, to divulge any matter which has
been communicated to him in professional confidence. This is not his
privilege, but the privilege of the client, and none but the client can
waive it. Jenkinson _v._ The State, 5 Blackford, 465; Benjamin _v._
Coventry, 19 Wendell, 353; Parker _v._ Carter, 4 Munf. 273; Wilson _v._
Troup, 7 Johns. Ch. Rep. 25; Crosby _v._ Berger, 11 Paige, 377; Bank of
Utica _v._ Mersereau, 3 Barbour Ch. Rep. 528; Aiken _v._ Kilburne, 27
Maine, 252; Crisler _v._ Garland, 11 Smedes & Marshall, 136; Chew _v._
The Farmers' Bank of Maryland, 2 Maryland Ch. Decis. 231. It will be
found in some of these cases that though the counsel declined to be
engaged for the client, yet the facts communicated were held
confidential; the only exception recognized being where a purpose to
perpetrate _in futuro_ a felony or an action _malum in se_ was
disclosed. Bank of Utica _v._ Mersereau, 3 Barbour Ch. Rep. 377. In
Moore _v._ Bray, 10 Barr, 519, it was held that communications of the
object, for which an assignment of a mortgage was made, to a counsel
concerned for the assignee, were privileged; although no question then
arose as to the object of the assignment, and the counsel considered the
communication in the light of a casual conversation. "The circle of
protection," said Bell, J., "is not so narrow as to exclude
communications a professional person may deem unimportant to the
controversy, or the briefest and lightest talk the client may choose to
indulge with his legal adviser, provided he regards him as such at the
moment. To found a distinction on such a ground would be to measure the
safety of the confiding party by the extent of his intelligence and
knowledge, and to expose to betrayal those very anxieties, which prompt
those in difficulty, to seek the ear of him in whom they trust in season
and out of season."
[12] Burnet's Life of Hale, 1 Hale's Works, 59, 60. "He began," says
Lord Campbell, "with the specious but impracticable rule of never
pleading except on the right side, which would make the counsel to
decide without knowing either facts or law, and would put an end to the
administration of justice." 1 Lord Campbell's Lives of the Chief
Justices, 412. There is the following curious note by Baxter in Burnet's
Life of Hale. "And indeed Judge Hale would tell me that Bishop Usher was
much prejudiced against lawyers because the worst causes find their
advocates; but that he and Mr. Selden had convinced him of the reasons
of it to his satisfaction; and that he did by acquaintance with them
believe that there were as many honest men among lawyers,
proportionably, as among any profession of men in England (not excepting
bishops or divines)." 1 Hale's Works, 106.
[13] 2 Wynne's Eunomus, 557.
[14] "Although Serjeants have a monopoly of practice in the Common
Pleas, they have a right to practice, and do practice, at this bar; and
if we were to assign one of them as counsel, and he were to refuse to
act, we should make bold to commit him to prison." Per C. J. Hale. 2
Campbell's Lives of the Chief Justices, 20; citing Freeman, 389; 2 Lev.
129; 3 Keble, 424, 439, 440.
[15] Let the circumstances against a prisoner be ever so atrocious, it
is still the duty of the advocate to see that his client is convicted
according to those rules and forms which the wisdom of the legislature
have established, as the best protection of the liberty and security of
the subject. Professor Christian's note to 4 Blackst. Com. 356. From the
moment that any advocate can be permitted to say that he _will_ or will
_not_ stand between the crown and the subject arraigned in the court
where he daily sits to practise, from that moment the liberties of
England are at an end. If the advocate refuses to defend from what _he
may_ think of the charge or of the defence, he assumes the character of
the judge, nay, he assumes it before the hour of judgment; and in
proportion to his rank and reputation, puts the heavy influence of
perhaps a mistaken opinion into the scale against the accused, in whose
favor the benevolent principle of English law makes all presumptions,
and which commands the very judge to be his counsel. Lord Erskine, 6
Campbell's Lives of the Chancellors, 361.
[16] Per Gibson, C. J., in Rush _v._ Cavenaugh, 2 Barr, 189.
[17] "There are many who know not how to defend their causes in
judgment, and there are many who do, and therefore pleaders are
necessary; so that that which the plaintiffs or actors cannot or know
not how to do by themselves, they may do by their serjeants, attorneys,
or friends." Mirr. of Justices, ch. 2, sec. v.
[18] Rush _v._ Cavenaugh, 2 Barr, 189. If the client in any suit
furnishes his attorney with a plea which the attorney finds to be false,
so that he cannot plead it for _the sake of_ his conscience, the
attorney may plead in this case, _quod non fuit veraciter informatus_,
and in so doing he does his duty. Jenkins, 52.
[19] Whewell's Elements of Moral and Political Science, vol. 1, p. 257.
[20] Law Magazine, February, 1850, May, 1854. Law Review, February,
1850. Several articles on the subject, taken from the English press, are
to be found in Littell's Living Age, vol. 24, pp. 179, 230, 306. I have
added, in an appendix, Mr. Phillips's vindication of himself from these
charges, in his correspondence with his friend Mr. Warren, preceded by a
brief statement of the case.
[21] The civil law will not allow a man to be convicted on his bare
confession, not corroborated by evidence of his guilt; because there may
be circumstances which may induce an innocent man to accuse himself.
Bowyer's Commentaries, 355, note. Upon a simple and plain confession,
the court hath nothing to do but to award judgment; but it is usually
very backward in receiving and recording such confession out of
tenderness to the life of the subject; and will generally advise the
prisoner to retract it and plead to the indictment. 4 Blackst. Comm.
329. 2 Hale, P. C. 225.
[22] Per Story, J., in Williams _v._ Read, 3 Mason, 418.
[23] In enumerating the things to which every pleader of others' causes
ought to have a regard, the Mirror of Justices says, "That he put no
false dilatories into court, nor false witnesses, nor move or offer any
false corruptive deceits, leasings, or false lies, nor consent to any
such, but truly maintain his client's cause, so that it fail not by any
negligence or default in him, nor by any threatening, hurt, or villany,
disturb the judge, plaintiff, serjeant, or any other in court, whereby
he hinder the right or the hearing of the cause." Chap. 2, s. 5. This is
indeed in the very words of the serjeant's oath, and Lord Coke remarks
that it consists of four parts: "1. That he shall well and truly serve
the king's people, as one of the serjeants at law. 2. That he shall
truly counsel them that he shall be retained with, after his cunning. 3.
That he shall not defer, wait, or delay their causes willingly for
covetousness of money, or other thing that may tend to his profit. 4.
That he shall give due attendance accordingly." 2 Inst. 214.
[24] A pleader is suspendable when he is attainted to have received fees
of two adversaries, in one cause. Mirror of Justices, chap. 2, sect. 5.
[25] "It is impossible to state a case, in which a witness should be
treated roughly. If you attempt it, every one feels offended, in the
person of the witness. You make your work more difficult; the witness
shuts himself up, considers you as his enemy, and stands upon his
defence: whereas, an open countenance, and an easy insinuating address,
unlocks his breast, and disarms him of his caution, if he has any."
Deinology, 228. This admirable little work, which has been attributed to
the pen of Lord Erskine, cannot be too highly recommended to the student
of law. The postscript, which suggests considerations on the _viva voce_
examination of witnesses, is particularly worthy a very attentive
perusal.
[26] Preston on Estates, 2.
[27] Co. Litt. 71 _a._
[28] Ibid. 6 _a._
[29] Art. Edward Tilghman, in the Encyclopaedia Americana, vol. xiv; The
Leaders of the Old Bar of Philadelphia, 50. Let me recommend to the
attention of the student a curious and interesting work, entitled "An
introduction to the science of the law, showing the advantages of a
legal education, grounded on the learning of Lord Coke's Commentaries,
upon Littleton's Tenures, &c., by Frederick Ritso, Esq." There are few
works of celebrity, in regard to which such opposite opinions have been
maintained as the Commentaries of Sir William Blackstone. While some
have expressed the most enthusiastic admiration, there have been others,
like Mr. Austin, Professor of General Jurisprudence, in the University
of London (Outlines of Lectures, 63), who have dealt in language of
unsparing condemnation and contempt. Mr. Ritso thinks that "the error
was in adopting them as an institute for the instruction and education
of professional students, which was evidently no part of Blackstone's
plan, nor within the scope of his engagement." In this point of view, he
objects, that "he represents everything rather for effect, than with a
view to demonstrate. Like the gnomon upon the sun-dial, he takes no
account of any hours, but the serene:
Et quae,
Desperat tractata nitescere posse, relinquit.
In a professional point of view, this solicitude rather to captivate the
imagination of the student, than to exercise and discipline the
understanding, is equally unprofitable and inconvenient. It puts him off
with ornamental illustration, instead of solid argument, and leads to a
sort of half information, which is often much worse than no information
at all upon the subject." There is some force in these remarks; yet, too
many great lawyers have begun their studies with Blackstone, to leave
any doubt that it is a proper first book. It paves the way for more
repulsive, though more recondite and valuable works. I very much fear,
indeed, that a disposition has existed of late years to repudiate Coke
upon Littleton entirely. Chancellor Kent has shown his leaning in that
direction (Comm. vol. i, 506, 512). I subscribe fully, however, to Mr.
Butler's opinion: "He is the best lawyer, and will succeed best in his
profession, who best understands Coke upon Littleton." It ought not,
perhaps, to be placed in the hands of the student until he has made some
progress in his reading of other works: but sooner or later, he should
aim to master it. Lord Coke was, himself, deeply imbued with the love of
his profession, and he is able to transfuse his own spirit into his
readers. His method may be objectionable in some respects; but I cannot
help thinking that the life of his work is gone when it is hacked to
pieces, and then attempted to be fitted together again upon another
man's skeleton. I have ventured to add in the Appendix (No. II), a
sketch of such a course of reading, of not very extensive compass, as
may with advantage be pursued by every young man after his admission to
the Bar.
[30] Maddock's Chancery. Preface.
[31] Bowyer's Headings on the Canon Law, p. 44. Lord Campbell says that
the person here mentioned was George Hardinge--a Welsh judge and nephew
of Lord Camden. 5 Lives of the Chancellors, 20, 281. According to Lord
Mahon, it was on the 15th of March, 1782, in the debate on a motion of
Sir John Rouse, of want of confidence in the ministry after the
surrender of Lord Cornwallis. He ascribes the remark to Sir James
Marriott, but says that, although he was the assertor of this singular
argument, the honor of its original invention seems rather to belong to
Mr. Hardinge. 5 Mahon's Hist. 139.
[32] Gibbon's Decline and Fall of the Roman Empire, c. xliv.
[33] Continuus inde et saevus accusandis reis Sicilius, multique audaciae
ejus aemuli. Nam cuncta legum et magistratuum munia in se trahens
Princeps, materiam praedandi patefecerat. Nec quidquam publicae mercis tam
venale fuit, quam advocatorum perfidia: adeo ut Samius insignis eques
Romanus, quadringentis nummorum millibus, Sicilio datis, et cognita
prevaricatione, ferro in domo ejus incubuerit. Igitur incipiente C.
Silio consule designato, cujus de potentia et exitio in tempore
memorabo, consurgunt patres, legemque Cinciam flagitant, qua cavetur
antiquitus ne quis ob causam orandam pecuniam donumve accipiat. Tacit.
Annul. 1. 11, c. 5.
[34] Chancellor Walworth, in Adams _v._ Stevens, 26 Wendell, 21. While
expressing, as will be seen presently, the opinion that authority as
well as sound policy would have led me to a different conclusion from
that at which Chancellor Walworth arrived, it is proper to acknowledge
that I have drawn largely upon his learned judgment in this case, and at
the same time to express the high admiration I entertain for the ability
with which the last of the New York Chancellors illustrated the chair
where such truly great men had sat before him.
[35] Gibbon's Decline and Fall, c. xvii.
[36] 3 Blackst. Com. 28; Davis Pref. 22; 1 Chanc. Rep. 38; Davis, 23;
Hodgson _v._ Scarlett, 1 B. & Ald. 232; Finch. L. 188; and see Butler's
note to 1 Co. Litt. 295 a. So it is with the advocates in the civil law.
Vost ad Pand. tit. de Postal. Numb. 6, 7, 8; Gravina de Oster. lib. 1,
s. 42, 43, 44. Boucher D'Asyis, Hist. Abrege de L'Order des Avocats, c.
iv. See also the commencement of the Dialogue des Avocats du Parl. de
Paris, by Loisil, which contains curious particulars throughout
respecting the ancient French Bar. An amusing anecdote is related of
Pasquier, the famous French advocate. In 1583, while he was attending
the assizes (_les grands jours_) at Troyes, he sat for his portrait, and
after the painter had finished the likeness, which Pasquier had not yet
examined, he asked him to represent him with a book in his hand. The
painter said that it was too late, as the picture was completed without
hands. Upon this the witty lawyer immediately wrote the following lines
as a motto for the portrait:
Nulla hic Pascasio manus est: Lex Cincia quippe
Causidicos nulla sanxit habere manus.
Forsyth's Hortensius, 424.
[37] The reader will find in the Appendix, No. III, an account of the
different orders of the English Bar.
[38] In some States, the professions of attorney and counsellor at law
are not distinct; the same person conducts the cause in all its stages;
and it has not been considered that his authority ceases when judgment
is obtained. The attorney is in some degree the agent as well as the
attorney of the party. Huston, J., in Lynch _v._ The Commonwealth, 16
Serg. & Rawle, 368.
[39] Mooney _v._ Lloyd, 5 Serg. & Rawle, 416.
[40] Hornblower, C. J., in Seeley et al. _v._ Crane, 3 Green, N. J. 35.
"I shall be sorry to see the honorary character of the fees of
barristers and physicians done away with. Though it seems to be a
shadowy distinction, yet I believe it to be beneficial in effect. It
contributes to preserve the idea of profession, of a class which belongs
to the public, in the employment and remuneration of which no law
interferes, but the citizen acts as he likes, '_foro conscientiae_.'"
Coleridge's Table Talk, vol. 2.
[41] Gray _v._ Brackenridge, 2 Penna. Rep. 181; Foster _v._ Jack, 4
Watts, 33. In New Jersey, an advocate's fees are not recoverable at law.
Shaver _v._ Norris, Penning. 63; Seeley _v._ Crane, 3 Green, 35; Van
Alter _v._ McKinney's Exrs. 1 Harrison, 236. That the general current of
decisions is in the opposite direction, will be seen by consulting
Stevens _v._ Adams, 23 Wendell, 57; S. C. 26 Wendell, 451; Newman _v._
Washington, Martin & Yerger, 79; Stevens _v._ Monges, 1 Harrington, 127;
Bayard _v._ McLane, 3 Harrington, 217; Duncan _v._ Beisthaupt, 1 McCord,
149; Downing _v._ Major, 2 Dana, 228; Christy _v._ Douglas, Wright's Ch.
Rep. 485; Webb _v._ Hepp, 14 Missouri, 354; Vilas _v._ Downer, 21
Vermont, 419; Lecatt _v._ Sallee, 3 Porter, 115; Easton _v._ Smith, 1 E.
D. Smith, 318.
[42] Chancellor Walworth, in Adams _v._ Stevens, 26 Wendell, 451; Foster
_v._ Jack, 4 Watts, 337.
[43] Senator Verplanck, in Adams _v._ Stevens, 26 Wendell, 451.
[44] Vilas _v._ Downer, 21 Vermont, 419. Responsibility in a
confidential employment is a legitimate subject of compensation, and in
proportion to the magnitude of the interests committed to the agent.
Kentucky Bank _v._ Combs, 7 Barr, 543.
[45] That evidence of usage is admissible to show what is the rule of
compensation for similar services to those sued for, see Vilas _v._
Downer, 21 Vermont, 424; Badfish _v._ Fox, 23 Maine, 94.
[46] Concerning the pleader's salary, says the Mirror, chap. 2, sec. 5,
"four things are to be regarded: 1. The greatness of the cause. 2. The
pains of the serjeant. 3. His worth, as his learning, eloquence, and
gift. 4. The usage of the court."
[47] Les lois et les docteurs, les anciennes ordonnances et plusieurs
anciens arrets donnent aux avocats une action pour le paiement de leurs
honoraires: mais, suivant la derniere jurisprudence du Parlement de
Paris et la discipline actuelle du barreau, ou ne souffre point qu'un
avocat intente une telle action. 1 Dupin, Profession d'Avocat, 110. Il
est possible, que l'usage ne soit qu'un prejuge; mais ce prejuge a eu
une salutaire influence sur la splendeur du barreau Francais. On ne
pretend pas, en France, qu'un avocat n'a pas droit a un honoraire pour
prix de ses travaux. Jamais on n'a refuse d'en allouer a ceux qui en ont
reclame. Dans plusieurs barreaux, ces reclamations sont meme tolerees.
Mais le barreau de Paris s'est montre plus severe; et non seulement
autrefois, mais encore aujourd'hui, tout avocat a la cour qui
actionnerait un client en paiement d'honoraires serait raye du tableau.
Du reste, s'il est defendu d'exiger, il est permis de recevoir tout ce
que le client veut bien assigner pour prix aux services de son avocat,
en raison de ses peines et de l'importance des travaux. Ibid. 698.
Les honoraires dus par les parties aux avocats charges du soin de leur
defense, ne doivent pas etre restraints a la taxe etablie par le tarif.
Cette taxe a pour objet seulement de fixer la somme due par la partie
qui succombe, et non d'apprecier les soins de l'avocat, appreciation qui
doit etre faite selon l'importance et la difficulte du travail. Ibid.
699.
[48] Arden _v._ Patterson, 5 Johns. Ch. Rep. 48.
[49] Foster _v._ Jack, 4 Watts, 338, 339.
[50] Clippinger _v._ Hepbaugh, 5 Watts. & Serg. 315; Marshall _v._ The
Baltimore and Ohio Railroad Co., 16 Howard (S. C.) Rep. 336. That
champerty is an offence at common law, and that contracts of that
character, between client and counsel, are void on that ground, and as
against public policy, will be found to have been maintained in Rust
_v._ Larue, 4 Litt. 411; Caldwell's Administrators _v._ Shepherd's
Heirs, 6 Monroe, 391; Thurston _v._ Percival, 1 Pick. 415; Arden _v._
Patterson, 5 Johns. Ch. Rep. 48; Bleakley's case, 5 Paige, 311; Wallis
_v._ Loubert, 2 Denio, 607; Backus _v_. Byron, 4 Michigan, 535; Elliott
_v._ McClelland, 17 Alabama, 206. The cases on the other side, are,
Thallhimer _v._ Brinckerhoff, 3 Cowen, 643; Ramsay's Devisees _v._
Trent, 10 B. Monroe, 336; Bayard _v._ McLane, 3 Harrington, 216; Lytle
_v._ State, 17 Arkansas, 608; Newkirk _v._ Cone, 18 Illinois, 449; Major
_v._ Gibson, 1 Patton Jr. & Heath (Va.), 48; Wright _v._ Meek, 3 Iowa,
472. In New York, by the Revised Statutes, it was made an offence,
punishable by fine or imprisonment, and removal from the Bar, for any
attorney, counsellor, or solicitor, directly or indirectly to buy, or be
in any manner interested in buying, or to advance or procure money to be
advanced upon anything in action, with the intent, or for the purpose of
bringing any suit thereon. 2 Revised Stat. 386. The Code of Procedure
appears to have changed the law in this respect, and to enable parties
to make such bargains as they please with their attorneys. Code of
Procedure, s. 258; Satterlee _v._ Frazer, 2 Sandf. S. C. Rep. 142;
Benedict _v_. Stuart, 23 Barb. 420; Ogden _v._ Des Arts, 4 Duer (N. Y.),
275; Sedgwick _v._ Stanton, 4 Kernan, 289. In Kentucky there appears to
be a statute, which provides that any one not a party, receiving as
compensation for services in prosecuting or defending a suit the whole
or part of the subject-matter in suit, is guilty of champerty, and it
has been held that this statute extends to attorneys. Davis _v._
Sharron, 15 B. Monroe, 64. In England, contingent fees are held to be
clearly within the statutes of champerty and maintenance. Penrice _v._
Parker, Rep. Temp. Finch, 75.
[51] 2 Wallace, Jr. Rep. 452.
[52] 10 Casey, 299.
[53] Paciscendi quidem ille piraticus mos; et imponentium periculis
pretia, procul abominanda negotiatio, etiam a mediocriter improbis
aberit: cum praesertim bonos homines bonasque causas tuenti non sit
metuendus ingratus, qui si futurus, malo tamen ille peccet. Quinct. Lib.
xii, c. 7.
[54] Evans _v._ Ellis, 5 Denio, 640; Newman _v._ Payne, 2 Ves. 199;
Walmsley _v._ Booth, 3 Atk. 25; Montesquieu _v._ Sandys, 18 Ves. 313.
The doctrine has been fully followed in this country; Stockton _v._
Ford, 11 How. U. S. 247; Starr _v._ Vanderheyden, 9 Johns. 253; Howell
_v._ Ransom, 11 Paige, 538; De Rose _v._ Fay, 4 Edw. Ch. 40; Lewis _v._
J. A., Ibid. 599; Berrien _v._ McLane, 1 Hoffman, Ch. Rep. 424; Miles
_v._ Ervin, 1 McCord, Ch. Rep. 524; Rose _v._ Mynell, 7 Yerger, 30; Bibb
_v._ Smith, 1 Dana, 482; Smith _v._ Thompson's Heirs, 7 B. Monroe, 308;
Jennings _v._ McConnel, 17 Illinois, 148.
An agreement made by a client with his counsel, after the latter had
been employed in a particular business, by which the original contract
is varied, and greater compensation is secured to the counsel than may
have been agreed upon when first retained, is invalid and cannot be
enforced. Lecatt _v._ Sallee, 3 Porter, 115.
[55] In Foss's Grandeur of the Law, eighty-two existing peerages are
stated to have sprung from the law. That was in 1843.
[56] Non merum, si ob hanc facultatem homines saepe etiam non nobiles
consulatum consecuti sunt: praesertim cum haec eadem res plurimas gratias,
firmissimas amicitias, maxima studia pariat. Cic. pro Muraena.
[57] Vivit, vivetque per omnium saeculorum memoriam. Dumque hoc vel forte
vel providentia vel utcunque constitutum rerum naturae corpus, quod ille
paene solus Romanorum animo vidit, ingenio complexus est, eloquentia
illuminavit, manebit incolume: comitem aevi sui laudem Ciceronis trahet;
omnisque posteritas illius in te scripta mirabitur, tuum in eum factum
execrabitur: citiusque in mundo genus hominum, quam cadet. Vell. Patere.
L. 2.
[58] Sir William Jones adds to his other claims upon our admiration
that of a decided partiality to the character and fortunes of our
American Republics. "The sum of my opinion is," says he, "that while all
the American people understand the modern art of war, and learn
jurisprudence by serving in rotation upon grand and petit juries, their
liberty is secure, and they will certainly flourish most when their
public affairs are best administered by their Senate and Councils. I
cannot think a monarchy or an oligarchy _stronger_ in substance,
whatever they may be in appearance, than a popular government.... I
shall not die in peace without visiting your United States for a few
months before the close of the eighteenth century. May I find wisdom and
goodness in your Senate, arms and judicature, which are power, in your
commons, and the blessings of wealth and peace equally distributed among
all." 2 Wynne's Eunomus, 359, note.
[59] Note at p. 47.
[60] Note at p. 75.