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Mr. Edgar Brierley, the stipendiary magistrate, presided.
Evidence was given for the prosecution that Shaw bad arranged with a motor agent named Gardner, of Manchester, for a number of motor-cars to be sent over to Oldham on the 5th Dec., on which day the Parliamentary elections were being held in Oldham. The cars were to be at the premises of the Oldham Motor Company Limited at eight o'clock in the morning, and the drivers on arriving there were to receive instructions as to where they were to go and what they were to do. It was also proved that the cars were used for conveying voters to the poll, and that Shaw had seen the cars on that day decorated with party favours.
For the defence Sutton submitted that in order to constitute the offence it must be proved not only that there was a letting or hiring for the conveyance of electors to and from the poll, but also that Shaw knew at the time when he hired the cars that they were to be used for an illegal purpose. He contended that there was no evidence to show that Shaw knew for what purpose the cars were to be used.
The STIPENDIARY held that there was sufficient evidence that Shaw knew that the cars were to be used for an illegal purpose, and there must be a conviction.
In a second case against Shaw, Sutton argued that the hiring of one car was so closely associated with the hiring of the others that the hiring of two or more cars was one transaction and constituted one offence only. The Bench ruled against this contention. further objection was raised by Sutton. He contended that if any offence was proved at all, it was a joint offence committed by Eglin and Shaw because they both took part in it, but the learned stipendiary held that the prosecution was not bound to proceed against them jointly. Sutton also submitted that the offence was not proved. To complete the offence it must be shown that the whole thing was illegal, and that the car was not used at the joint cost of the persons who were conveyed in it.
The STIPENDIARY, however, held that if there is evidence that a man hires a car for this purpose, primâ facie he commits an offence, and that it then lies on the defence to prove, if they can, that the persons using the car pay for it. There was a conviction in the Becond case.
Two cases against Eglin were then taken, in both of which he was convicted. The order of the court was that on each summons each defendant should pay a fine of £10 and £10 10s. costs.
BOROUGH QUARTER SESSIONS.
West Ham, Friday, May 26, at 10.3u.
MARSTON, THOMPSON, AND EVERSHED LIMITED v. SLANEY. High Bailiff-Duties in Relation to Execution and Interpleader—County Courts Act 1888, s. 156-County Court Rules 1903, Order XXVII., rr. 3, 13.
THIS was a case of much importance to high bailiffs heard recently at the County Court held at Market Drayton (Salop) before His Honour Judge Reginald Brown, K. C., when Messrs. Marston, Thompson, and Evershed Limited sued Mr. Thomas Slaney, high bailiff of the County Court of Newcastle-under Lyme, for damages for a breach of duty. T. H. Smith, solicitor, Audlem, for the plaintiffs; S. A. H. Burne, instructed by T. Slaney, for the defendant.
Smith said that the plaintiffs claimed £17 19s. 6d. damages from the defendant for that having received a warrant of execution from the County Court of Market Drayton, issued by the plaintiffs against Mary Ann Raybould, of Hill Chorlton, Staffordshire, and having levied the said execution he did wrongfully and without lawful excuse withdraw from possession of certain goods and chattels of the judgment debtor, thereby depriving the plaintiffs of the fruits of the execution. In the alternative the plaintiffs claimed damages for that the defendant, having levied the before-mentioned execution on goods and chattels which were alleged to be included in a bill of sale dated the 28th July 1908 between Mary Ann Raybould of the one part and Joseph Torr of the other part, did withdraw from possession without selling or interpleading as provided by the County Courts Act 1888, s. 156, and the County Court Rules 1903, Order XXVIII., r. 3; and did not give the plaintiffs time to obtain an order for the sale of the goods under Order XXVII., r. 7, of the County Court Rules 1903. In May 1910 plaintiffs obtained judgment against Mary Ann Raybould, in that court, for the sum of £15 23. 6d., which the costs of the execution soon afterwards levied brought up to £17 19s. 6d. The judgment debtor was then living at Hill Chorlton, Staffordshire, in the Newcastle district. Instructions were given for an execution to be levied, and on the 29th June a return was made that there was no effects. Plaintiffs not being satisfied with this return obtained an order for an oral examination of Mrs. Raybould, which took place before the Market Drayton Registrar on the 12th Aug. It was then found that she had certain goods which were not included in the bill of sale, and the same evening_instructions were sent to defendant to re-levy the execution. The following morning he (Smith) received a telegram, "Meet you Raybould's 12.30; two prior warrants outstanding." In response to this telegram he went to Hill Chorlton,
Baw defendant's chief clerk, who had come to levy the execution; and emphatically instructed him to seize everything, informing him that the plaintiffs would contest any proceedings that might be taken. On the 17th Aug. he received a telegram from Newcastle, "Raybould's claim filed. Cannot sell secured goods without order." The same night he wrote to defendant, stating in his letter: Thanks for telegram. I have also received notice. and have seen my clients thereon, and they instruct me the matter must proceed in the usual way; they will defend any proceedings arising. Have you received deposit ? If not,
you ought to sell, pay proceeds into court, and interplead. We will assist you in every way. No court is sitting till the 17th prox., so we cannot apply to judge for order to sell." On the 18th Aug. he received a letter from defendant, dated the 17th, stating that Mrs. Raybould's solicitors had filed a notice that the goods seized were included in the bill of sale. Defendant went on to state that a judge's order for eale would be necessary, and that if such an order could not be obtained before the 19th he must sell the hay, stock, and other goods not included in the bill of sale. On the 8th Sept. he wrote inquiring whether defendant still held the goods, and by return of post received a reply to the effect that the sum of £8 13s. 9d. had been realised by the sale of the hay, stock, &c., and applied to a former warrant. On the 27th Sept. he wrote to defendant pointing out that he should have retained possession of the goods until plaintiffs had obtained an order for sale. Defendant replied that he took for his authority in withdrawing the case of Scarlett v. Hanson (50 L. T. Rep. 75; 16 C. C. C. Rep. 392), and added that plaintiffs could not be prejudiced by his action, as the goods were still in existence at Stoke-on-Trent, where a fresh seizure could be made. Further correspondence passed between the parties, and on the 23rd Nov. the summons was issued. Referring to the legal aspect of the case, Smith said it was the duty of the high bailiff to conform to all such general rules as should be made. Under sect. 49 of the County Courts Act the bailiff was answerable if by neglect or omission he lost the opportunity of levying execution, and under sect. 43 he could be sued for damages in an adjoining court on summons. Under sect. 156 it was provided that a claimant to goods in execution must either deposit the value of the goods claimed or the possession fees," otherwise the bailiff was bound to sell. Due notice of the claim was sent to the execution creditor, but he was not aware that the claimant to the goods had received notice to deposit. It was the duty of the bailiff to interplead. Scarlett v. Hanson (uls sup.) was decided under different rules and different conditions to those now existing in the County Court. The rule now said that the bailiff "must" interplead, and plaintiffs' case was that defendant failed to do so, although particularly asked to interplead in order that plaintiffs might contest the bill of sale. If the high bailiff did not interplead the execution creditor had no remedy. They levied execu tion; the high bailiff seized the goods, and then retired without interpleading, although the plaintiffs were prepared to contest the bill of sale, and to support him in every way. The High Court rule was that a sheriff "may" interplead, but in the County Court the rule was imperative the bailiff must interplead. With regard to the possession of the goods, in 1907 Mrs. Raybould's husband died, and she took over the business of a grocer and baker, with an outdoor beer licence. On the 28th July 1908 she gave the bill of sale referred to, for £70 already advanced and £30 then advanced. The bill of sale practically covered everything she had. On the 8th July 1910 Mrs. Raybould's father, the holder of the bill of sale, died, appointing Mrs. Raybould his sole executrix. In the will it Was provided that the trustees should not, during the lifetime of Mrs. Raybould, require payment of the debt secured by the bill of sale, and at her death should not make any claim against her estate in case the effects included in the bill of sale failed to realise when sold sufficient to pay the debt secured. Plaintiffs claimed that the provisions of the will entitled them to contest the bill of sale, for where a testator appointed a debtor his sole executor, the debt was wiped out. Mrs. Raybould, at her oral examination, swore that she paid instalments under the bill of sale at the rate of £2 a month, up to the time of her father's death. She also swore that her father sold a horse in 1910 for £13, and received this sum in reduction of the bill of sale. From this evidence it appeared that about £70 of the £100 had been repaid. If the goods were good security for £100, and £70 of this had been paid off, he submitted that, as the goods were still in existence, the plaintiffs were entitled to damages for having lost the fruits of their judgment. They were not bound to go racing from one County Court district to another as the judgment debtor might choose to remove, and as the high bailiff might choose to withdraw without interpleading.
Burne argued that the plaintiffs' evidence had no real bearing on the question of whether there had been a real breach of duty. It was an action for negligence on the ground that defendant had unlawfully withdrawn from possession, and, in extension of that, that having seized the goods he did not sell or interplead, as provided by certain sections, and further that he did not give the plaintiffs time to obtain an order for sale. The answer to these points was first that the withdrawal was not unlawful, and involved in that was the proposition that defendant was not bound to interplead. The case really depended on the case of Scarlett v. Hanson (ubi sup.), which was decided in 1884 under the Common Law Procedure Act of 1860. The section under which it was decided was repeated in practically the same words in the County Court Rules 1903, Order XXVII., r. 13. His submission was that where a claim was made to goods under a bill of sale the proceedings were quite distinct from proceedings under rule 3 of the same order, which dilected that the high bailiff, where the claimant to the goods per
sisted in his claim, should apply for an interpleader summons. Rules 1 and 3, he submitted, applied to claims other than claims made under a bill of sale or otherwise by security for debt. Where there was a bill of sale there was no compulsion on the high bailiff to interplead. In Scarlett v. Hanson (ubi sup.) it was noted that where goods were seized in execution by a sheriff, and had been previously assigned by the execution debtor to a third person as security for a debt, the sheriff was not bound to interplead and thereby allow proceedings to be taken for an order for sale. Before the Common Law Procedure Act of 1860, where a bill of sale had been granted in respect of certain goods, the sheriff had no power to touch those goods, even though their value was considerably more than the amount covered by the bill of sale. The altered law on this point was contained in rule 13, which said that an order for sale could be obtained from a judge. Wherever there was a bill of sale it was the practice of bailiffs to refuse to sell without an order from the judge. His HONOUR.-But will they withdraw from possession at once? I agree about the selling.] If they do not withdraw they are in the position of trespassers. This seemed to be one of the considerations in the judgment of Scarlett v. Hanson (ubi sup.). If a bailiff did not withdraw, even though he had no duty to sell, and no duty to interplead, he had no defence to an action for trespass. In this case there was no deposit of fees. The bailiff's man would have had to remain in possession for thirty days, seven miles from the bailiff's office, in a hostile house. Under these circumstances the bailiff properly exercised his discretion in withdrawing. He bad produced to him a bill of sale, which he was satisfied was a valid
He had levied at the same place several times during the year and was satisfied that the debtor had no money, and was unable to deposit the value of the goods. If Scarlett v. Hanson (ubi sup.) was law, there was no fduty to interplead, and if there was no duty of which he had committed a breach, defendant was not negligent. In regard to not selling, his argument would be practically the same. The only power to sell was given under rule 13. Before the Common Law Procedure Act there was no power to sell in a case where
a claim was made under a bill of sale. It followed therefore that the only to sell was power by order of 8 judge. The procedure in regard to claims under bills of sale was dominated entirely by rule 13. The bailiff had in this case exercised his discretion and withdrawn; but it was still open to the plaintiffs to go to a judge and obtain an order for sale. Nothing had been done to prejudice plaintiffs that could not be remedied. If it was held that defendant was bound to stay in possession or sell, it was equivalent to holding that he was bound to put himself in the position of a tresspasser. If the case was governed by rule 3, it appeared to him that rule 13 was rendered nugatory, and Scarlett v. Hanson (ubi sup.) could never be invoked in aid. No actual damage had been shown by the plaintiffs. The evidence was that at the time of the execution there was a bill of sale for £100 on the goods. There also two prior warrants amounting to £25. The evidence was that defendant paid nothing at all under the bill of sale, and therefore £10 might be added as interest. There was a total of £135 due before the plaintiffs could touch a penny. No evidence had been adduced that the goods in the house were of sufficient value to pay off this £135 and leave a surplus for plaintiffs. Therefore plaintiffs failed to show that they had suffered any damage.
Smith, replying, said the case of Scarlett v. Hanson (ubi sup.) was decided on the Rules of the Supreme Court, which were to the effect that the sheriff "may" take out an interpleader summons. Where County Court Rules, ho vever, were imperative, and read: the execution creditor does not admit the claim, the high bailiff shall' interplead." With reference to the bailiff being a trespasser, Order XXVII., r. 2, provided for bis protection from an action for trespass. Rule 13 gave a judge power to direct a sale, but did not affect the general procedure in regard to interpleader contained in the previous rules. Sect. 156 was most emphatic in regard to the bailiff's duty to sell. He contended that plaintiffs were entitled to damages of some sort for the infringement of their legal rights and for defendant's breach of duty.
His HONOUR, in giving judgment, said he could not adopt the argument for defendant founded on rules 3 and 13 of Order XXVII. of the County Court Rules. The first three rules were perfectly general, and his opinion was that, notwithstanding rule 13, the high bailiff must either remain in possession, or sell, or interplead, The only object of rule 13 was to continue the power that existed before, in certain instances, for a judge to direct a sale in cases where there was a claimant to goods seized under a bill of sale, or otherwise by way of security for a debt. He could not see anything to limit the action of rule 13 to cases of bills of sale. It was natural that there should be special provision made for power to sell, and the rule might well be auxiliary to the previous rules. The case of Scarlett v. Hanson (ubi sup.) was decided on other sections, where there was no such expression as "The high bailiff shall sell." He could not read the word "shall as" may.' It was
not provided that the high bailiff should, in cases where a claim was made by a bill of sale or otherwise as security for debt, withdraw, practically when he pleased, without selling, or interpleading. was conceivable that, in the County Court, where small sums were of importance to the parties, rule 3 was necessary, in order that it might be compulsory for the high bailiff to interplead if he withdrew from possession. In this case nothing that could have been done was left undone to induce the high bailiff to remain in possession, or sell, or inter plead. He was bound to do all be could to protect the plaintiffs, and in exercising his discretion and withdrawing without interpleading he committed a breach of duty, and on that ground he would be liable to an action for
damages if the plaintiffs could show that they had suffered damage. His Honour was of opinion that defendant had committed a breach of duty; but, on the other hand, plaintiffs had suffered no damage from it. The goods were appraised at a total value of £50. There was a bill of sale for £100 and interest, and two prior warrants representing a total of £25. If the bill of sale was good it wiped out everything. One had to remember the general principle of the law, that a debt was extinguished if a debtor was made the sole executor of a testator. In this case, however, the bill of sale was especially kept alive for the benefit of the children of the debtor. The bill of sale, therefore, was not extinguished, and therefore was sufficient to wipe out the value of the whole of the goods. Defendant in relying on the case of Scarlett v. Hanson (ubi sup.) took a mistaken view of the law, but as no damage had resulted there must be judgment for defendant with
SITTINGS OF THE COURTS.
FOR THE WEEK ENDING SATURDAY, MAY 20.
Ashby-de-la-Zouen, Thursday, at 11
Barnet, Tuesday, at 10
Barnsley, Tuesday, Wednesday,
Bishop's Stortford, Friday, at 10
Bourne, Saturday, at 10.30 Bournemouth," Monday, Tuesday, and Wednesday (if necessary), at 10
Bow, Monday, Tuesday, Wednes day, and Friday
Bradford (Yorks), Monday (A.O.), Tuesday, Wednesday (R. By), Thursday (J.S.), and Friday, at
Braintree, Friday, at 11
Bridgwater, Friday, at 10
East Grinstead, Wednesday Edmonton, Monday and Tuesday, at 10
Evesham, Saturday, at 10
Falmouth, Wednesday, at 10
Hereford. Tuesday, at 10
Keighley, Wednesday, at 10
Rochdale, Monday (By at 11.30), at 9:30
Rochester, Tuesday, Wednesday, and Thursday, at 9.30 St. Neots, Wednesday, at 11 Salford, Wednesday and Friday Sheffield, Wednesday, Thursday (By at 2), and Friday, at 10 Shoreditch, Tuesday, Thursday, and Friday
Soham, Friday, at 10
Southampton, Tuesday, at 10; Friday (C.S.), at 11
Southwark, Monday, Tuesday, and,
Tuesday, at 9.30
Stoke, Wednesday, at 9.30 Stokesley, Friday, at 10.30 Stourbridge, Wednesday Thursday, at 10 Stow-on-the-Wold, Wednesday Sunderland, Wednesday, day, and Friday (By), at 10 Taunton, Tuesday, at 10 Thornbury, Monday Tiverton, Saturday, at 10 Torquay, Saturday, at 10.30 Truro, Friday, at 10 Uppingham, Monday, at 2 Uttoxeter, Friday, at 10 Wakefield, Tuesday, at 10
Warwick, Friday, at 10
Watford, Monday (J.S.), at 10
Westbromwich, Tuesday (J.S.) and Friday
Westminster. Monday, Tuesday, Wednesday, Thursday, and Fri
Weston-super-Mare, Monday, at 10
Williton, Thursday, at 11
Other sittings are specially fixed if necessary.
THE ETHICS OF ADVOCACY IN AN UNJUST CAUSE. (By EDWIN S. OAKES, B.A., in Case and Comment.)
"But there is yet another exception against the professors of our law, namely, that wittingly and willingly they take upon themselves the defence of many bad causes, knowing the same to be unjust when they are first consulted with and retained. Ani this is objected to by such as presume to censure our profession in this manner. every cause between party and party (say they) there is a right and there is a wrong: yet neither the one party nor the other did ever want a counsellor to maintain his cause."-From the preface to the 18eports of Sir John Davis, Chivalier, AttorneyGeneral of the King in Ireland (Folio), London, 1674.
THE frequently uttered reproach, that the profession of the advocate is supported by the indiscriminate defence of right and wrong, is as old as the Profession itself; and the worthy gentleman from whose defence of the lawyer who is so unfortunate as to have espoused the losing side the language which prefaces this article is taken is but one of a host who have rallied to refute an imputation which they have rightly felt to be undeserved. To undertake the discussion of a subject already so thoroughly discussed requires a plea in justification, which may be found in the currency of the attempts made in recent years through the discussion and adoption of codes of ethics, to crystallise the ethical consciousness of the Bar into statements of basic principles of professional conduct.
It is not an overstatement to say that the typical lay view is that the lawyer is no more than a paid mercenary whose arms are at the service of whomsoever may choose to employ him, no matter how unrighteous the cause or how flagrant the guilt of the client. This view may justly be resented as both erroneous and undiscriminating erroneous, in that it fails to take into account the true function of the advocate in the administration of justice, and to apprehend the exact nature of the duties which he owes respectively to the court, to his client, and to society; undiscriminating, in that it condemns alike the fact of advocacy and the act in which such advocacy exceeds its proper bounds. At the' same time it may be admitted that it is difficult for the average layman to conceive of the lawyer as being at the same time the minister of justice and the partisan of his client. It may even be difficult for the lawyer himself to grasp the true significance of his relation. It must, therefore, be our task to investigate the duties of such relation and to ascertain the bounds within which the lawyer may properly exert himself in advocating a cause in the righteousness of which he may
Allusion is made in the Pickwick Papers to an ingenious gentleman who by dint of "cramming on China in the encyclopædia under the detter C, and on methaphysics under the letter M, combined the information thus obtained to evolve an article on Chinese Metaphysics. Legal ethics is not composed upon such a formula. It is not such an agglomeration of high-sounding phrases of "fidelity to a cause and "loyalty to a client " as may salve the lawyer's conscience in doing " for a guinea," in Macaulay's phrase, with a wig on his head and a band around his neck what without these appendages he would think it wicked and infamous to do for an Empire": (Essay on Bacon). The lawyer's code of professional conduct is not sui generis, but is based upon sound morality. It is not an artificial system of rules inapplicable to laymen, but consists in the application to the Profession's peculiar needs of the great principles which underlie the duty of man to himself and to mankind. It has been well and forcefully said: "There is no difference between personal and professional ethics. The foundations on which the distinction between right and wrong rest go deeper down than a man's occupation, and are unaffected by any such accident as the choice of his business or his methods. They are in the nature of things fixed and immovable. The lawyer who overlooks this important truth and assumes the existence of one code of morals for the man, and another and less exacting one for the practitioner will sooner or later find that his lower code has no absolute provisions, no fixed line, no distinct boundary between the permitted and the forbidden, for when once the known limits of the higher code have been passed, the questions How far to go? When and where to stop?' are to be determined, not by our conscience or our moral instincts, for these have already been disregarded, but by an intellectual calculation of the necessities of the situation, and of the risks of exposure, loss of professional standing, or punishment: (Williams, Legal Ethics). To this may be added another author's pithy statement." The advocate does not cease to be a human being with all his etho..I and religious obligations, a citizen with all his political obligations to his country and her laws, and a gentle. man with all the obligations of honour and civil intercourse. He is no morally privileged person, as no man can be ": (Lieber, Political Ethics).
What, then, in the light of these general principles, should be the action of an advocate whose services are sought in a case which he believes to be unjust? In pursuing this inquiry in detail, let us separately consider civil and criminal cases.
In the first place it may be conceded that the lawyer is not bound to accept a retainer in any case which is distasteful to him; and a fastidious sense of honour may lead him to reject employment which, according to established standards, he might accept without impropriety. The story is told of a one-time member of the Bar of western New York, a judge of the Supreme Court, famous in his day for his pungent manner of expres sion, that he was at one time sought by a client whose legal right was as clear as his moral claim was doubtful. Much to his surprise, the judge declined the case. The client was attempting to expostulate with him when the judge effectually silenced him with the statement, uttered with the greatest deliberation, and with the judge's own inimitable twang: "Mr. I have made up my mind that you are a damn-mean-man, and I don't want to have anything to do with you." Horace Binney wrote in his private record: “I never prosecuted a cause
that I thought a dishonest one, and I have washed my hands of more than one that I discovered to be such after I had undertaken it, as well as declined many which I perceived to be so when first presented to me" : (Sketch of Horace Binney, by Charles Chauncey Binney).
But though a lawyer may with propriety decline, may he with equal propriety undertake the conduct of a doubtful case?
The devoted and indefatigable Boswell, presenting one of his numerous sight drafts upon the wisdom of his patron, once asked Dr. Johnson (Boswell, Life of Johnson): "But what do you think of supporting a cause which you know to be bad? To which the doctor replied, "Sir, you do not know it to be good or bad till the judge determines it. An argument which does not convince yourself many 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."
The same idea is expressed by Baron Bramwell in Johnson v. Emerson (25 L. T. Rep. 337, at p. 350; L. Rep. 6 Ex. 367): "A man's rights are to be determined by the court, not by his attorney or counsel. It is for want of remembering this that foolish people object to lawyers that they will advocate a case against their own opinions. The client is entitled to say to his counsel, I want your advocacy, not your judgment; I prefer that of the court."
The quaintness of the language used by Sir John Davis in putting forth a somewhat similar argument warrants its reproduction in this connection: "For when doth the right or wrong in every Cause appear? When is that distinguished and made manifest? Can it be discovered upon the first commencement of the Suit, and before it can be known what can be alleged and proved by either party? Assuredly it cannot. And, therefore, the Counsellor, when he is first retained, cannot possibly judge of the Cause, whether it be just or unjust, because he hears only one part of the matter; and that also he receives by information from his Client, who doth ever put the Case with the best advantage for himself. But when the parties have pleaded and are at Issue, when they have examined witnesses in course of equity, and he descended to a Trial, in course of Law, after publication and hearing in the one case, and full evidence delivered in the other; then the learned Counsel on either side may perhaps discern the right from the wrong, and not before. But then are the Causes come to their catastrophe, and the Counsellors act their last part. And yet until then the true state of the Cause on both sides could not possibly be discovered."
This contains much of truth, but does it contain the whole truth? Can a lawyer plead at the bar of conscience that it was not his business to sit in judgment? Is it his duty to institute an independent investigation into the merits of a cuse ? Here even the highest minded differand the fact of such difference shows the question to be one of taste rather than of principle.
It was the habit of George Wythe," says Mr. L. G. Tyler, "in case he entertained any doubts of the truth of his client's statements, to require of him an oath, and if at any stage of the case he found that deception had been practised upon him, the fee was returned and the case abandoned."
On the other hand, Dr. Showell Rogers, in an article in the Law Quarterly Review, argues that facts may not only differently impress different minds, but operate upon the same mind differently, according as they are or are not fully threshed out; that it is impossible for an advocate to determine in advance that his client is right; that the result of such a practice would be that all the worst cases would ultimately find their way into the hands of the unscrupulous, to the detriment of the interests of public justice; and that such course would make the lawyer's character a part of his client's case. In this connection he quotes from a private letter written by Lord Halsbury as follows: "A thesis has been propounded on the other side more extravagant, and certainly more impossible of fulfilment; that is, that an advocate is bound to convince himself, by something like an original investigation. that his client is in the right before he undertakes the duty of acting for him. I think such a contention ridiculous, impossible of performance. and calculated to lead to great injustice. If an advocate were to reject a story because it seemed improbable to him, he would be usurping the office of the judge, by which I mean the judicial function, whether the function is performed by a single man, or by the composite arrangement of judge and jury which finds favour with us. Very little experience of courts of justice would convince any one that improbable stories are very often true, notwithstanding their improbability": (The Ethics of Advocacy, Law Quarterly Review for July 1899).
Much of the literature of legal ethics is concerned with the propriety of a lawyer's undertaking the defence of one whom he believes to be guilty of crime. Here, though the ethical aspect is more clearly outlined, the same considerations apply as in civil cases.
Although a lawyer may properly decline such employment, circumstances may be such as to impose upon him an obligation to undertake the case. Such was the obligation felt by William H. Seward, who, because he believed the prisoner to be insane, volunteered, in the face of strong popular feeling, to defend a friendless negro, indubitably demonstrated to have committed an atrocious murder. In his address to the jury, he thus expressed the sense of duty by which he was actuated: "I am not the prisoner's lawyer. I am, indeed, a volunteer in his behalf, but society and mankind have the deepest interests at stake. I am the lawyer for society, for mankind, shocked, beyond the power of expres sion, at the scene I have witnessed here of trying a maniac as a malefactor" (William H. Seward, in defence of Freeman).
The right of an advocate to defend a person accused of crime does not depend upon the guilt or innocence of the accused, but upon his right to be defended.
It is interesting to note that in England, until the enactment of 6 & 7 Will. 4, c. 114, the right of a person accused of felony to the assistance of counsel was formerly greatly restricted.
Says Blackstone: "It is a settled rule at common law that no counsel shall be allowed a prisoner upon his trial upon the general issue in any capital crime, unless some point of law shall arise proper to be debated. A rule which (however it may be palliated under cover of that noble declaration of the law, when rightly understood, that the judge shall be counsel for the prisoner; that is, shall see that the proceedings against him are legal and strictly regular) seems to be not at all of a piece with the rest of the humane treatment of prisoners by the English law. For upon what face of reason can that assistance be denied to save the life of a man which yet is allowed him in prosecutions for every petty trespass? Nor indeed is it, strictly speaking, a part of our ancient law for the Mirror, having observed the necessity of counsel in civil suits, who know how to forward and defend the cause, by the rules of law and customs of the realm.' immediately afterwards subjoins, and more necessary are they for defence upon indictments and appeals of felony than upon other venial causes." And the judges themselves are so sensible of this defect that they never scruple to allow a prisoner counsel to instruct him what questions to ask, or even to ask questions for him, with respect to matters of fact; for as to matters of law arising on the trial, they are entitled to the assistance of counsel" (1 Bl. Com. 357). The practice, however, is defended by Sir John Davis on ethical grounds in the following passage, the fallacy of which, of course, lies in the assumption than an accusation necessarily imports guilt: And as our Judges do discountenance bad Counsellors, so doth our Law abhor the defence and maintenance of bad Causes, more than any other Law in the world besides. For by what other Law is Unlawful maintenance, Champertie, or Buying of titles, so severely punished? By what other law doth the Plaintiff pro falso clamore, or unjust veration, or the Defendant for pleading a False Plea, pay an amerciament or fine to the publick Justice? And this is one cause, among others, why our Law doth not allow counsel unto such as are indicted of Treason, Murther, Rape, or other capital crimes. So as never any Professor of the Law of England hath been known to defend (for the matter of fact) any Traitour, Murtherer, Ravisher, or Thief, being indicted and prosecuted at the Suit of the King. Turpe reos empta miseros defendere lingua, saith the Poet. And therefore it is an honour unto our Law, that it doth not suffer the Professors thereof to dishonour themselves (as the Advocates and Orators in other countries do) by defending such Offendours. For example whereof we have extant divers orations of Cicero, one pro C. Raberio perduellionis reo; another pro Roscio Amerino, who was accused of parricide; and another pro Milone, who was accused of Murther."
Says Judge Sharswood: "Every man accused of an offence has a constitutional right to a trial according to law ; even if guilty he ought not to be convicted and undergo punishment unless upon legal evidence; and with all the forms which have been devised for the security of life and liberty. These are the panoply of innocence, when unjustly arraigned, and guilt cannot be deprived of it without removing it from innocence. He is entitled, therefore, to the benefit of counsel to conduct his defence, to cross-examine the witnesses for the State, to scan, with legal knowledge, the forms of the proceeding against him, to present his defence in an intelligible shape, to suggest all those reasonable doubts which may arise from the evidence as to his guilt, and to see that if he is convicted it is according to law": (Sharswood, Legal Ethics).
The consensus of opinion as to this phase of the lawyer's ethical obligations is expressed in the code of ethics adopted by the American Bar Association as follows: "It is the right of the lawyer to undertake the defence of a person accused of crime, regardless of his personal opinion as to the guilt of the accused; otherwise innocent persons, victims only of suspicious circumstances, might be denied proper defence."
According to a Press report, the code of legal ethics submitted to the New York County Lawyer's Association forbids & lawyer to accept as a client a man whom he knows to be guilty. Certainly if a lawyer has actual knowledge of as distinguished from mere belief in a man's guilt, as where he was an eye-witness of the crime, in that case he must be a witness, and so is disqualified from acting as counsel; but if such provision is intended to inhibit the acceptance of a retainer because of mere belief in the guilt of the accused, it is indeed, as the report characterises it, a novelty in the history of lawyer's ethics.
But, so far as our present topic is concerned, all this is beside the mark. Even after admitting the danger of passing judgment in advance, and giving due recognition to the fact that confessions of guilt have been known to prove unreliable, the fact remains that not every case is, or may properly be regarded as, a doubtful one: and to pretend that the advocate may always justify himself on this ground is but a shallow sophistry that deceives nobody. The case may be so clear and the facts so little in doubt as to produce a moral conviction of the injustice of the cause, or of the guilt of the client. Here is the crux of the whole matter; and to solve the difficulty we must proceed to consider the true function of the advocate.
To say that the advocate acts solely as the mouthpiece of his client, and so may speak for the unjust as well as for the just, for the guilty as well as for the innocent, without any violation of ethical obligations, is to attempt his justification upon a ground that cannot be wholly satisfactory.
Let us instead take the higher ground that his true function is to promote the administration of justice, and consider whether the advocacy of an unjust cause is inconsistent with that function. Now, human justice cannot undertake to deal with each and every man according to his just deserts. Its domain must ever be narrowed by human fallibility. Since the men concerned in its administration
can be neither all-wise nor all-good, experience has demonstrated the wisdom of proceedings according to established rules, that justice may be done in the mass though it may fail of being done in the particular. This being so, the interests of society demand that the litigant be permitted to urge his claim, whatever its ethical aspect may be, or to set up his defence, no matter how unconscionable, or to demand that his guilt be established according to the forms of law, in order that in the ninetyand-nine cases the right may prevail and the innocent be exonerated, even though in the hundredth case the just cause may suffer defeat, and the guilty escape punishment. And so when the individual case is viewed, not by itself, but in the larger aspect, it will be perceived that the advocate is promoting the administration of justice by contending for the legal rights of his client, whatever may be his private opinion as to such client's deserts. Said Sidney Smith, in an assize sermon preached before Mr. Justice Bayley and Baron Hullock : Justice is found, experimentally, to be most effectually promoted by opposed efforts of practised and ingenious men presenting to the selection of an impartial judge the best arguments for the establishment or explanation of the truth. It becomes then, under such an arrangement, the decided duty of an advocate to use all the arguments in his power to defend the cause he has adopted, and to leave the effects of these arguments to the judgment of others."
The lawyer's function being ascertained, the question next arises, What is to be the manner of its exercise? Having accepted a retainer in a presumably unjust cause, what are the ethical obligations of the lawyer with respect to the conduct of the case?
In a civil case, his professional duty requires him to secure for his client every advantage which the law permits.
Baron Puffendorf expresses the opinion that in civil cases "it doth not appear that the Advocate can with a safe Conscience hinder the injured Party from obtaining his rights as soon as possibly he may. And therefore in such Controversies, we condemn as unlawful, not only false Allegations and feigned Reasons, but likewise all dilatory Exceptions and Demurs; in as much as all there are a Let and Hindrance to the one Party from paying what he owes; and to the other from receiving what is due to him" (Law of Nature, bk. 4, chap. 1).
It is not his business as an advocate to correct the law, but to obtain its enforcement for his client's benefit. He may properly advise him of his right to plead such defences as infancy, usury, or the statute of limitations. He is bound to require his adversary to demonstrate his title to the remedy sought, irrespective of the merits of the case. Dr. Showell Rogers says in the article to which reference has before been made, if legal rights are to be respected at all, it would be difficult and dangerous to allow any vague or general considerations of expediency or even of justice, real or supposed, to prevail over them.
At the same time, where the equities are manifestly against his client. it is clearly the lawyer's duty, albeit its performance may require some courage, to declare his own view of the client's moral duty and to urge him to submit to a settlement of the case.
If a lawyer," says Sir John Davis, "fortune to be ingaged in a Cause which, seeming honest in the beginning, doth in the proceeding appear to be unjust, he followeth a good counsel of the School-man, Thomas Aquinas Advocatus si in principio credidit causam justum esse, quae postea in processu apparet esse injusta, non debet eam prodere, ut scilicet alteram partem juvet revelando causae suae secreta: potest tamen, et debet, causam deferere, vel eum cujus causam agit inducere ad cedendum, sive ad componendum, sine adversarii damno": (Thom. Aquinas, 2. 2. Quaest, 71, art. 3).
But it is in the conduct of criminal cases that the advocate is more likely to be perplexed by apparently conflicting obligations. Is he, he may ask himself, in exerting himself to procure his client's acquittal, playing the nurse to villainy ? Does he justly lay himself open to the charge of being an accessory after the fact? To which we may answer in the light of what has herein before been said, No, if his advocacy is exercised within its proper bounds.
There is a famous passage in the speech of Lord Brougham in defence of Queen Caroline upon her trial in the House of Lords, in which he said: "An advocate, by the sacred duty which he owes his client, knows, in the discharge of that office but one person in the world, that client and none other. To save that client by all expedient means-to protect that client at all hazards and costs to all others, and amongst others to himself is the highest and most unquestioned of his duties; and he must not regard the alarm, the suffering, the torment, the destruction, which he may bring upon any other. Nay, separating even the duties of a patriot from those of an advocate, and casting them, if need be, to the wind, he must go on reckless of the consequences, if his fate it should unhappily be, to involve his country in confusion for his client's protection." But having regard to its context and the circumstances under which it was uttered, there can be no doubt that this passage was never intended as a deliberate definition of the duty of an advocate; and Lord Brougham himself has explained that it was simply intended as a menace, that if the bill was pressed beyond a certain point he would not only set up a recriminatory case against the King, but would also impeach the King's own title by proving that he had forfeited the Crown by his marriage to a Roman Catholic (Mrs. Fitzherbert) while heir apparent. However, as Coleridge in commenting on the passage remarks: "It exactly suited the calibre of those who were to profit by it, and it has stuck like a burr to the Profession ever since."
But others have expressed broader and higher conceptions of the duties of an advocate. ` Lord Brougham having used somewhat similar language at a dinner given to the great French advocate, Berryer, in 1864, the then Lord Chief Justice of England, Sir Alexander Cockburn, in responding to the toast of "The Judges of England," said: "My noble and learned friend, Lord Brougham, said that an advocate should be fearless in carrying out the interests of his client; but I couple that with
this qualification and this restriction-that the arms which he wields are to be the arms of the warrior and not of the assassin. It is his duty to strive to accomplish the interest of his clients per fas, but not per nefas It is his duty, to the utmost of his power. to seek to reconcile the interests he is bound to maintain, and the duty it is incumbent upon him to discharge, with the eternal and immutable interests of truth and justice."
(To be continuea..
HEIRS-AT-LAW AND NEXT OF KIN.
DAVIES (William, otherwise William Eynon), husband of Rachel Davies, if living, to come in, by June 21, at chambers of Swinfen Eady, J., and answer an inquiry made in the matter of the trusts of the will, dated Dec. 20, 1897, of John Davies, deceased, of Porth. June 28, at 12, at said chambers, is appointed for proceeding on the inquiry.
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