THE CHARACTER OF THE BAR AND ITS RELATIONS TO THE
BENCH
Every lawyer is an officer of the court as fully as is the judge
or the clerk. He has, indeed, a longer term of office than is
generally accorded to them, for he holds his position for life,
or during good behavior.
Courts could not exist under the American system without lawyers
to stand between litigants and the judge or jury. It is a system
that requires written pleadings, originally very artificial in
form and still somewhat so. It imposes many limitations on the
introduction of evidence, which often seem to shut out what ought
to be admitted, and rest on reasons not apparent to any who have
not been specially instructed in legal history. It divides the
decision of a cause between judge and jury in a manner only to be
understood after a long and close study. It gives a defeated
party a right of review dependent on a number of technical rules,
and to be availed of only by those who are skilled in the
preparation of law papers of a peculiar kind.
A class of men has therefore been set apart to keep the people
from direct approach to the bench, except when they may desire to
argue their own cases, which rarely occurs.
In England there are two such barriers, the class of barristers
and the class of attorneys. The attorneys keep the people from
access to the barristers; the barristers keep the attorneys from
access to the court. The attorney prepares the case, represents
his client in the proceedings preliminary to the trial, and
assists the barrister whom he may retain at the trial, but cannot
examine a witness or argue the cause.
In America we do not thus divide lawyers into two classes. There
are many of them who never in fact address the court, but it is
not because they have not a legal right to do so. Every member
of the bar of any court has all the legal rights of any other
member of it.
The qualifications for admission to the bar are generally left to
be regulated by the courts. In a few States they are fixed by
constitutional or statutory provisions. In all, when the
Constitutions do not regulate it, the legislature can. It has
indeed been asserted that the admission of attorneys is in its
nature a matter for the courts only.[Footnote: See _American
Law School Review_, I, 211.] English history does not support
this contention.[Footnote: Pollock & Maitland, "History of
English Law," I, 211-217; II, 226. O'Brien's Petition, 79
Connecticut Reports, 46; 63 Atlantic Reporter, 777.] The Inns of
Court, which are mere voluntary associations of lawyers, have
from time immemorial exercised the function of calling to the
bar, so far as barristers are concerned, and the admission of
attorneys has always been regulated by Acts of
Parliament.[Footnote: See In the Matter of Cooper, 22
N. Y. Reports, 67, 90.] By our American legislatures the same
course has been generally pursued.
The duty of ascertaining whether candidates for admission have
the prescribed qualifications is occasionally performed by the
judges in person; more often by a committee of the bar appointed
by the court for that purpose; in some States by a standing board
of State examiners, receiving compensation for their
services.[Footnote: This comes from fees paid by those examined.]
The latter method was introduced in the latter part of the
nineteenth century and is steadily gaining in favor. A committee
of a local bar is unavoidably subject to some local influences or
prepossessions. A State board can act with greater independence
and maintain with more ease a high standard of admission.
In early colonial days the legislature sometimes set a limit to
the number of attorneys who could be allowed to practice before
the courts. In some colonies the number at the bar of a
particular court was fixed; in others the number of lawyers in
each county.[Footnote: Acts and Laws of the Colony of Conn., May
session, 1730, Chap. LIV. Hunt, "Life of Edward Livingston," 48.]
No such limitation now exists in any State, and the matter is
left to be regulated by the law of supply and demand. This by
the census of 1900 required over 114,000.
The freer a country is, and the quicker its step in the march of
civilization, the more lawyers it will naturally have. The
growth and importance of the bar are stunted wherever it is
overshadowed by an hereditary aristocracy. A land of absolutism
and stagnation has no use for lawyers. The institutions of China
would not be safe if she had a bar. Lawyers are a conservative
force in a free country; an upheaving force under a despotic
government. In Russia one is found enough to serve over thirty
thousand; in the United States there is about one to every six
hundred and sixty of the population,[Footnote: In 1870, there was
one to every 946; in 1880, one to every 782.] and in England one
to every eleven hundred.
The colonial lawyers of the seventeenth and eighteenth centuries
occupied an inferior place in the community as compared with that
now held by the legal profession. There was comparatively little
opportunity to rise to eminence. The positions on the bench, as
has been seen, were largely held by those not trained as lawyers.
Before such judges it was a waste of words to make elaborate
arguments on points of law.
Among the first settlers were a few who had been educated for the
English bar. One of them, in Massachusetts, Rev. Nathaniel Ward,
drafted the _Magna Charta_ or "Body of Liberties" of that
colony, adopted in 1641. His opinion of the need of lawyers may
be inferred from the fact that it provided expressly that those
who pleaded causes for others should receive no compensation for
it. Virginia adopted the same policy from 1645 to 1662. Later,
lawyers practicing in Massachusetts were excluded from the
General Court. As that had large judicial powers, it was thought
fitting to give no opportunity to any to sit there to-day to
judge and to appear to-morrow before an inferior court to argue
as an advocate.[Footnote: Hutchinson, "History of Massachusetts,"
III, 104.]
As time went on, an American was occasionally sent to London to
read law. He was apt to be a young man of fortune, who entered
the Temple or the Inns of Court more as a means of gaining
pleasant acquaintances than for any serious purpose of education.
Most of them came from Pennsylvania and the Southern colonies.
Two Presidents of the Continental Congress, Randolph and McKean,
four signers of the Declaration of Independence, Heyward, Lynch,
Middleton, Edward Rutledge, and John Rutledge, one of the first
associate justices of the Supreme Court of the United States,
were of the number.
Not infrequently there were legal proceedings in London which
concerned colonial interests. Their charters were attacked or
colony laws and judgments put in question before the Lords of
Trade and Plantations. In such proceedings, if counsel were
needed, English barristers were generally employed. An American
lawyer now and then went over to consult with them and perhaps to
join in the argument, but the leading part was theirs.
It was not until the quickening and deepening of American life
which preceded and portended the Revolution that anything like a
colonial bar, led by a man of learning and position, really came
into existence.[Footnote: "Two Centuries' Growth of American
Law," 16.] From the middle of the eighteenth century to its
close there was a steady and rapid progress in this direction.
Legal education was taken seriously. In the case of many it
began with the fundamental notions of justice and right. The
Greek and Latin classics on those heads were read.[Footnote:
"Life of Peter Van Schaick," 9.] The private law of the Romans
was studied to a greater extent relatively than it is now. The
first chair of law in the United States was established at
William and Mary College in 1779, and there, under Chancellor
Wythe, John Marshall was a student. President Stiles of Yale, in
his "Literary Diary," so full of that kind of historical incident
which after a few years have passed it is most difficult to
trace, enumerates the books read by his son, Ezra Stiles, Jr.,
between 1778 and 1781, in preparation for the Connecticut bar,
under the advice and in the offices of Judge Parker of Portsmouth
and Charles Chauncey of New Haven. They comprehended, besides
much in English and Scotch law, Burlamaqui's _Principes de
Droit Naturel_, Montesquieu, _de l'Esprit des Lois_, the
Institutes of Justinian, certain titles of the Pandects, and
Puffendorf _de Officio Hominis et Civis juxta Legem
Naturalem_. James Kent at about the same time was reading
Grotius and Puffendorf in the office of the Attorney-General of
New York, and Edward Livingston, under Chancellor Lansing,
explored all parts of the _Corpus Juris Civilis_.[Footnote:
Hunt, "Life of Edward Livingston," 41.] John Quincy Adams a few
years later, under the instruction of Chief Justice Parsons of
Massachusetts, took up Vattel and the Institutes of
Justinian.[Footnote: Report of the American Bar Association for
1903, 675, note.] The latter, as well as Van Muyden's
_Compendiosa Tractatio_ of them, his father had studied in
his preparation for the bar thirty years before.[Footnote: "Life
and Works of John Adams," I, 46.]
The lectures of Chancellor Wythe at William and Mary, like those
of Mr. Justice Wilson in 1790 at the University of Pennsylvania
and of Chancellor Kent in 1794 at Columbia, were designed, as
were Blackstone's at Oxford, to give such information as to the
nature and principles of law as might be of service to any one
desirous of acquiring a liberal education. Such instruction
could not be considered as anything approaching a proper
preparation for entering on the practice of the legal profession.
The United States preceded England in the endeavor to provide
such a preparation by a systematic course of study pursued under
competent teachers at a seat of learning established for that
sole purpose.
The need of something of the kind was felt to be pressing after
the independence of the United States had been fully established.
An unusual number of young men of promise were turning from the
army to the bar.[Footnote: "Memoirs of James Kent," 31. In 1788,
the number of attorneys in the State of New York had risen to
120. Morse's "American Geography," ed. 1796, 506. Thirty years
later it was 1,200. Miles' "Register," XIV, 311.] Those already
members of it had educated themselves as best they could, with
slight assistance from the lawyers in whose offices they had
studied. They in turn were indisposed to do more for such as
might desire to read law in their offices. Few of them were
competent to do much.[Footnote: See "Life of Peter Van Schaick,"
9, 13.]
There was a demand for a professed school of law, and in 1784 the
first in any English-speaking country was opened at Litchfield,
Connecticut. There are now 104 of them,[Footnote: Report of the
American Bar Association for 1903, p. 398.] with a total
attendance of over fourteen thousand students. The course of
study in a few may be completed in one year; in most two are
required; in the rest three, with perhaps an offer of a fourth
for advanced instruction leading to the degree of master or
doctor of laws. The ordinary degree is that of bachelor of laws
(LL.B.).
The American Bar Association has had an important influence from
its first organization, in 1877, in prolonging the period and
raising the standards of legal education. In affiliation with it
there is an "Association of American Law Schools," representing a
large majority of the teachers and students engaged in law school
work. This admits no institution into its ranks at which
students are received without a preliminary education at least
equal to that given by the ordinary high school. A few of the
schools so associated receive no student, save in exceptional
cases, unless he already holds a degree in arts, science,
philosophy, or letters from some collegiate institution.
In several of the States having boards of State examiners no one
is admitted to the final examination before them who did not
prior to the beginning of his education receive one of the
degrees above indicated or else pass a special examination before
the same board on certain prescribed studies, corresponding
substantially with those ordinarily pursued in a high school.
Some proof is everywhere required that an applicant for admission
to the bar possesses a good moral character. It is necessarily
largely a matter of form. Certificates are sometimes required
from those familiar with his previous life, and sometimes the
mere motion for his admission by a member of the bar representing
the examining committee is accepted as sufficiently implying that
no unworthy person would be thus presented.
In a few States a distinction is made between attorneys with
reference to the courts in which they may practice. When first
admitted it is to the bar of the trial courts. Later, after a
few years of experience, they can be admitted on further
examination to practice also in the highest courts of the State.
This distinction reaches back, in New Jersey, to the colonial
era. Attorneys were there a different class from "counsellors,"
and, following the English practice, the style of "sergeant" was
also formerly bestowed on leaders at the bar. The last lawyer
bearing the title survived until nearly the middle of the
nineteenth century. In this State the Governor has always issued
the licenses or commissions to attorneys and solicitors in
chancery, but for more than a hundred and fifty years only on the
recommendation of the Supreme Court.[Footnote: _In re_
Branch, 70 N. J. Law Reports; 57 Atlantic Reporter, 431.]
The admission of attorneys in the several courts of the United
States is determined by rules which they respectively establish
from time to time. These rules make the only qualification
membership in regular standing for a certain period of time in
the bar of a State and good moral character.
There is no doubt that the United States have been in advance of
England both in providing means of legal education and in
requiring their use. The length of the course of study now
established at our older Law Schools--three years--seems all that
can reasonably be exacted, if a proper foundation of general
discipline and knowledge has been previously laid. The first
provision for one or more years of graduate study for those who
may desire it was made at Yale University in 1876, and a similar
opportunity has since been offered at several others; but it has
been availed of by few, and of these a considerable part had in
view the teaching of law as their ultimate vocation rather than
its practice.
Unquestionably the American bar is now, as a whole, a far better
trained class of men than it was twenty or thirty years ago, and
the efficiency of the courts has been correspondingly increased.
* * * * *
Members of the bar are always subject to punishment by the court
for official misconduct. This may be by censure, temporary
suspension from practice, or disbarment. If guilty of contempt
of court, they can also be sentenced to fine or
imprisonment.[Footnote: See Chap. XX.] As suspension or
disbarment means a loss, temporary or permanent, of a livelihood,
it is only ordered in aggravated cases and after an opportunity
for a formal hearing.
Disbarment cannot be decreed by the legislative department. That
would be virtually an act of attainder. It must come from a
judicial sentence.[Footnote: _Ex parte_ Garland, 4 Wallace's
Reports, 333, 378.]
In some States the principal trial court, which is the one by
order of which attorneys generally are admitted to the bar,
appoints a standing committee on grievances. In others such
committees are created by Bar Associations, of which almost every
State has one for the whole State, while several have also one or
more local associations. It is the duty of such a committee to
inquire into any instances of professional misconduct that may be
brought to their notice and either institute proceedings for a
hearing before themselves or bring the matter to the attention of
the court, so that they may be instituted there by its order and
conducted by the public prosecutor. In the larger States,
several inquiries of this nature are ordinarily set on foot every
year, which result in suspension or disbarment. In the smaller
States they are rare, both because they have smaller bars and
because the smaller a bar is the more difficult is it for any one
of its number to hide any misdoing from the rest.
The Bar Associations, which first began to start up soon after
the Civil War, have been of great service in upholding the honor
of the profession. Their Constitutions generally name this
particularly as among their professed objects. One
State[Footnote: Alabama] has recently under such influences,
passed a statute making it a misdemeanor for an attorney to send
out "runners" to solicit practice, and requiring the public
prosecuting officer to institute proceedings for any violation of
the law, upon the complaint of the council of the State Bar
Association.
The steadily and rapidly increasing proportion of lawyers to the
population in the United States necessarily tends to a lowering
of their average professional income, and this tendency is not
fully overcome by the increase of the wealth and business of the
country. The principle of the concentration of industry also
works against the great majority of them. Searching titles to
real estate, for instance, was until the last half of the
nineteenth century part of the business of every lawyer. It is
now in the larger cities monopolized by certain firms or
corporations, who own copies or abstracts of the public records,
laboriously prepared, which give them special facilities for
doing the work rapidly and well. So collecting uncontested debts
was formerly the staple of many a lawyer's practice. The general
abolition of imprisonment for debt about the middle of the
nineteenth century rendered the process much more difficult and
the fees less, and of late years great collection agencies,
generally corporations, have sprung up, with an extensive system
of correspondents among members of the bar, by whom most suits of
such a nature are now brought under an agreement to divide their
fees with the central bureau.
Until the last half of the nineteenth century there were probably
no lawyers in this country whose average net income from year to
year was equal to that of the leaders of the English bar. In
1806 there was but one lawyer in New England with an annual
professional income of $10,000: until about 1860 there was none
in Connecticut, and probably not over a hundred in the entire
country.[Footnote: Parton, "Life of Aaron Burr." 153; Great
American Lawyers, III, 55.] In 1827, William Wirt was informed
by Justice Thompson of the Supreme Court of the United States
that "six, eight, and ten thousand dollars is considered great
practice in New York and ten thousand dollars the
_maximum_."[Footnote: Kennedy, "Memoirs of William Wirt,"
II, 209.] Thirty years later the same was true, except that
twenty thousand dollars had then become the highest annual
average, and that but of a very few.[Footnote: Parton, "Life of
Aaron Burr," 153.] Daniel Webster earned from $12,000 to $20,000
when at the height of his career.[Footnote: Harvey,
"Reminiscences of Daniel Webster," 84.]
The Civil War was the occasion of many important business
enterprises, and gave rise to much litigation. It brought also a
great increase of wealth to the North and West, and new and
greater investments of Northern capital in the South. From that
time the business of the leading lawyers in every State became
more remunerative. Incomes of $20,000 and $25,000 were
occasionally earned in the smaller States, and of four or five
times as much in the larger ones.
The American lawyer of the eighteenth century was apt to have his
office in his house. During the nineteenth century this became
less and less common and is now comparatively rare. In cities
certain streets, generally near the court-house, are crowded with
lawyers' offices. These are generally over business stores, but
in some places residential streets have been converted to this
use, and what was formerly a handsome mansion will have the
chambers of counsel on every floor.
In many of the counties in Virginia chambers for the
accommodation of the lawyers are built in the rear of the
court-house on public ground. A small rent is paid by the
occupants to the county. When court is about to open each day
the crier calls out from one of the court-house windows the name
of each lawyer to notify him of the fact.
The relations of the bar to the bench assume a peculiar character
under the conditions of American society. The judges stand
closer to the lawyers in this country than in any other. All of
them, unlike those of continental Europe, have been themselves
practicing lawyers. The majority, unlike those of England, are
young men, sitting in minor courts, who have generally left the
bar for but a brief period, expecting, if not desiring, soon to
return to it. Not a few hold court but one or two days in the
week or one or two hours in the day, and for the rest of the time
are actively engaged in professional practice before other
courts. Those of the latter description always occupy a somewhat
unfortunate position. The State does not expect them to devote
themselves entirely to its service. It does not provide for
their compensation on that basis. It expects them to continue
the general practice of their profession, except so far as their
judicial duties may necessarily prevent. They certainly cannot
practice in their own court with propriety. Statutes to prevent
it are not uncommon. For the same man to charge the jury one day
as judge and address them the next in argument as counsel must
tend to confuse their notions as to the weight they should give
to what he says, and to lend it often a weight which it may not
deserve. So, too, his relations to the clerk and other court
officers are such officially as to give him opportunities for
influencing them when he is engaged at the bar, not shared by his
brother lawyers.[Footnote: French _v._ Waterbury, 72
Conn. Reports, 435; 44 Atlantic Reporter, 740.]
There are, however, in every State quite a number of judges of
higher courts who receive a salary deemed sufficient for their
support and who are expected to devote their entire time to
judicial duties. As respects those of the United States courts
there is a statute (U. S. Revised Statutes, Sec. 713) making it
criminal for them to practice law. Similar legislation exists in
some of the States with regard to the judges of their higher
courts, but without it a sense of propriety dictates their
abstaining from it, and it has even been held that the right of
any judge of a superior trial court of general jurisdiction over
important causes to act as an attorney or counsellor, except in
his own cause, is suspended by implication of law so long as he
retains his seat on the bench.[Footnote: Perry _v._ Bush, 45
Florida Reports; 35 Southern Reporter, 225.]
The demeanor of the judges to the bar is inevitably affected to
some extent by their tenure of office. If they hold their places
for life, they naturally are less sedulous to avoid giving
offense and less ready to tolerate a poor or tedious argument. A
greater distance is maintained for this cause between bench and
bar in the federal courts than is usual in most of the State
courts.
No judge, however, desires to have the reputation of being
overbearing, rough or impatient, and few are. Chief Justice
Parsons of Massachusetts at one time fell into an inveterate
habit on the circuit of checking counsel in argument rather
curtly when they seemed to him to wander from the vital point.
The leaders of the bar of Boston finally determined to stop it,
and arranged at the next term at which he was to preside that
whoever of them was thus treated should leave the court room.
The first to address the court was checked in the usual manner,
and observing that he regretted his argument seemed not worthy of
the court's attention, took his papers and went out. The next
met the same kind of interruption in the same way, and so on
until the court room was cleared. The Chief Justice afterwards
sought an explanation, received it in good part, and was forever
cured of what had been a serious impediment to his usefulness on
the bench.[Footnote: See George F. Hoar, Autobiography, II, 397.]
Occasionally a trial judge will have a similar lesson taught him
by finding no business to be disposed of when he opens court, and
learning later that the bar agreed to the continuance of all
pending cases, because they did not care to trust him with them,
or were disinclined to submit to his manner of conducting a
hearing.
Judges are universally desirous of securing the good opinion of
the bar as respects their knowledge of law and powers of
discrimination and analysis. The bar is their little world. It
is a critical world, for in every case that is tried there will
be one lawyer who is dissatisfied with the result, and likely to
think the judge wrong rather than himself, if every proposition
of law which he has asserted has not been conceded.
It is much more common for American judges to be too tolerant of
a waste of time by counsel than to be too impatient at
it.[Footnote: See a striking instance of this tendency given in
Cleveland, Painesville & Eastern R. R. Co. _v._ Pritschau,
69 Ohio State Reports, 438; 69 Eastern Reporter, 663.] They
dislike even to seem harsh. Most of them also hold office only
for a term of years and do not forget that undue severity may
jeopardize their re-election. This is one reason for the fact
that at all points the bar are subject to fewer restrictions upon
their conduct in the trial of causes in American courts than in
those of most other countries. Another, and a more fundamental
one, is that the judges and lawyers stand more nearly on the same
level both in public regard and official position. The lawyer
holds a more permanent office in the court than the judge. He is
quite likely to be his superior in learning and ability. He
belongs to a class that is influential in the community, and
whose members usually share quite actively in the direction of
party politics. The judge in most instances holds but a brief
authority. He does not wish to parade it in such a manner as
might seem offensive. He is in danger of seeming to parade it if
he goes beyond what is necessary in regulating the conduct of the
lawyers who may appear before him. The judge who keeps a rigid
watch on the examination of witnesses to exclude all improper
testimony, whether objection be made to it or not, declines to
hear argument on matters that may appear to him too clear to
justify it, and is impatient when argument on doubtful points is
continued longer than he thinks worth while, may be respected,
but he will never be popular. Trials for these reasons are
longer in the United States than in England. Fewer summary
rulings are made. More questionable evidence is admitted. More
time is allowed to counsel in the argument of the cause, and more
freedom in arguing points that may seem immaterial to the court.
The broad liberty of appeal generally allowed is another reason
for hesitation on the part of trial judges to interfere more than
seems absolutely necessary with the management of a cause by
counsel. It is not merely the legal right of appeal but the
practice under it which is a peculiar feature of our judicial
system. A foreign lawyer often hesitates to cross swords with
the judge. He distrusts his own judgment if it differs from that
of the court. He defers to the opinion of the bench, not only as
stating the law of the case, but as probably stating the law of
the land. He therefore seldom appeals on minor points of
procedure, even if he could. In the United States probably one
case in ten of all that go to trial is carried up for review on
points of law; many of them mere matters of practice not
affecting the merits of the cause.
The American lawyer can also safely speak with freedom of the
conduct of the government or of high officials should it come in
question.
Those in any court, high or low, who hope for a reappointment
know that the best way to obtain it is to secure the good will of
the bar. The reputation of a judge depends on the opinion which
the lawyers have of him. The general public may be deceived as
to his character, ability and attainments; the bar cannot be.
In the public sessions of court there are few judges who are not
impressed with the necessity of maintaining the dignity of their
position as representing the power of the State. The lawyers
recognize this feeling as just. It is common for them to rise as
a body when the judge enters the bench. They find no difficulty
in using the conventional style of address of "May it please the
Court," or "May it please your Honor." When a ruling is made in
the course of a trial the lawyer, whose client is adversely
affected by it, accepts it without further discussion, simply
reserving his exception, if he have one, for purposes of review
in a higher court. If, in addressing the jury, counsel exceed
the bounds of professional license in commenting on testimony or
alluding to the character of the parties, the court will check
them without hesitation.
Less outward respect was shown toward the courts by the bar in
former times than now, and it often received less courtesy of
treatment from the bench. An incident occurring in Massachusetts
about the beginning of the nineteenth century may serve as an
illustration. Robert Treat Paine, a signer of the Declaration of
Independence, resigned his seat on the bench of the Supreme
Judicial Court in 1804, at the age of seventy, largely on account
of deafness. Naturally somewhat imperious in temperament, his
bearing toward the bar had seemed harsher from this infirmity.
Fisher Ames used to refer to him as _Ursa Major_, and once
told a friend that he should not go into court again, when Judge
Paine held it, without a club in one hand and a speaking trumpet
in the other. Theophilus Parsons, not long afterwards made Chief
Justice of the State, was arguing before him one day when the
judge, under the misconception into which a deaf old person so
easily falls, that the younger generation all speak hurriedly and
indistinctly, cried out, "Mr. Parsons, I tell you once for all,
take that glove off your tongue." "Certainly, Sir," was the
quick retort, "and may I beg your honor to take the wool out of
your ears?"[Footnote: "Memoir of Theophilus Parsons," 214.]
Some twenty years later Roger Minott Sherman, the leader of the
Connecticut bar, in trying a cause before an empty-headed judge
who had been put on the bench for no other apparent reason than
that his father was a man of distinction, quoted several English
authorities and was about to read from another when the judge
remarked that he need not take the trouble to read anything more
of that sort to him. "Then," said Mr. Sherman, "with your
Honor's permission I will read from it to the jury, and let me
say that it is an opinion of Lord Ellenborough, a Chief Justice
of England who rose to the bench by his own merits, and shone by
no reflected light."
One of the anecdotes of the Boston bar is that while Samuel
Dexter, one of the great lawyers of his day, was arguing a cause
in the Circuit Court of the United States before Justice Story,
soon after his accession to the bench, the court suddenly
interposed, as a certain principle was asserted, with "That
proposition is not law, Sir," to which Mr. Dexter retorted, "It
is the law, if your Honor please, and will finally be declared to
be the law by this court," as indeed it was later by Justice
Story himself.[Footnote: Payne, "Reminiscences of the Rhode
Island Bar," 241.]
Such a passage at arms between court and counsel as took place in
either of these instances could now hardly occur.
Out of court there is no longer this distance between judge and
lawyer. While they will not talk over an unfinished case, one
that is finally disposed of is often the subject of free comment
by each. They are now entirely upon the same level in the
community. Officialism is put off when the court room is closed.
Socially they meet in the same circles and on the same footing.
It is considered not improper for a judge to accept the
hospitality of a lawyer concerned in a case before him, and even
a case on trial. The American rule in this respect is much less
strict than the English.[Footnote: See "Memoir of Chief Justice
Parsons," 208-211.]
* * * * *