i:'!j;ii;;'i|;:i;!;;'!'!;'iM:Mi;t'iii'l:"!;;;\i' The Origin and Development of the Legal Profession CHARLES S. WHEELER I THE ORIGIN AND DEVELOPMENT LEGAL PROFESSION BY CHARLES S. WHEELER OF THE SAN FRANCISCO BAR THE FIRST ANNUAL ADDRESS BEFORE THE STANFORD LAW ASSOCIATION STANFORD UNIVERSITY MAY 21, 1903 SAN FRANCISCO THE MURDOCK PRESS 1903 r THE ORIGIN AND DEVELOPMENT OF THE LEGAL PROFESSION. Ladies and Gentlemen: At the main entrance to the yamun, or official dwelling, of each Chinese magistrate, is a raised plat- form. Upon this platform are a table and a magistral chair. Around the room are hung whips, bamboo rods, and other instruments of punishment. The place is always open to whomsoever will enter, and a gong hangs within easy reach. Any Chinese subject who feels himself aggrieved may freely come by day or by night and beat the gong. The magis- trate, in obedience to the ancient code, must instantly don his official robes, come forth and occupy the chair of justice, and then and there take action in the case. This method of invoking justice is the same to-day as in the days of Yao and Shun, and had prevailed in China for more than two thousand years ^ before Christ suffered on Calvary. When the Master was placed under arrest in the Garden of Gethsemane, you will remember that the • Holcombe— " The Real Chinaman." 4 THE ORIGIN AND DEVELOPMENT hour was about midnight; that he was taken to the palace of Caiaphas, the high-priest and president of the Sanhedrin. There he was brought before a committee of the Sanhedrin — a sort of court of first instance; and this was ere the first crowing of the cock. He was bound over to appear before the full Sanhedrin (the seventy), and daylight was but breaking when this remarkable body — the Supreme Court of the nation — convened/ The Constitution of the State of California de- clares that " The Supreme Court . . . shall always be open for the transaction of business." Thus, in these widely separated times and places and among these wholly different peoples, we find an idea common to all, — the courts are always open to those who seek redress. The Chinese courts of four thousand years ago and the Sanhedrin of the Jews doubtless offered facilities for invoking the court on short notice which are not at hand to-day; but the fundamental conception is nevertheless the same, — " the eye of Justice never sleeps." It is not surprising that we find this similarity of idea. The object of the judicial systems of the world, whatever their composition and method, is, of course, the same. Laws defining the higher crimes and felonies are, and always have been, alike the world 'Watson— "The Life of the Master"; Renan— "Life of Christ"; Books of Matthew, Mark, and John. OF THE LEGAL PROFESSION. 5 over. It is in the administration of the law, in the forms of procedure, in the rules of evidence, in the rights guaranteed to the accused, in the nature and extent of the punishment, and in the segregation of the judicial from the legislative and executive branches of government, that the great difference lies. You v^^ill at once follow me when I call your at- tention to the fact that the presence of advocates in courts of justice has from the earliest times depended upon the grace or caprice of the ruling power. And the ruling power has not always been gracious in this regard. Lawyers have not always been wanted. In More's "Utopia,"^ he tells us that in that happy isle "they utterly exclude and banish all " attorneys, proctors, and Serjeants at the law, which " craftily handle matters and subtily dispute of the " laws." We have at least three Utopian attempts of this kind to point to : — Milton says of the Muscovites in his time: "They " have no lawyers, but every man pleads his own " cause, or else by bill or answer in writing delivers " it to the duke ; yet justice, by corruption of inferiors, " is much perverted" ^ Two hundred years later Wallace writes concern- ing the administration of justice in Russia's lawyer- » Edition London, 1808, pp. 155-156. » Hortensius, 20. 6 THE ORIGIN AND DEVELOPMENT less courts: "Suffice it to say, that in general the " chancelleries of the courts were dens of pettifogging " rascality." ^ In 1864 a new judicial system was introduced in Russia, and since that time it has had a duly author- ized bar. China has been a victim of Utopian justice for the last forty-five hundred years. "The Chinese," says Holcombe,^ "have an invin- " cible repugnance to lawyers. Their strongest ob- " jection to all Western modes of judicial procedure " is the existence and employment of lawyers in our " courts. Said a distinguished Chinese statesman to " the author: ' We can trust our own judgment and " 'common sense to get at the merits of any case, and " *do substantial justice. We do not need to hire men " 'to prove that right is wrong and wrong right.' " Let us look in upon a Chinese court of justice, — that abode of wisdom where they do not need lawyers to tell them that what they call right is, in truth, most dreadful outrage and wrong. Parties litigant and witnesses approach the court on hands and knees, and must so remain while in the presence of the court. With the witness in this atti- tude, his testimony is taken. The magistrate himself does the questioning. If the case is a criminal case, ' Wallace— "Russia" (1877), p. 560. ''"The Real Chinaman," pp. 200-201. OF THE LEGAL PROFESSION. ^ he does his utmost to extort a confession from the prisoner. He uses all artifices, — flattery, cajolery, threats, cunning, and clever cross-examination; and if these do not serve his purpose, he resorts to tor- ture. The unfortunate witnesses are similarly treated. It is not uncommon for a judge to stop in the midst of an examination and order the witness to be beaten across the mouth with a bamboo switch until the blood flows. Witnesses may be made to kneel for hours upon chains, or triced up by the thumbs, or starved into giving so-called "testimony." ^ The next illustration we find nearer home. The Massachusetts Body of Liberties, adopted in 1641, undertook to discourage the building up of a legal profession, by declaring that those who pleaded the cause of others should receive no pay for it.^ The result was, that down to the close of the seventeenth century Massachusetts had no bar. It was during that period that the courts of Massachusetts sank into a condition which would put to shame even a Chinese tribunal. During that period there was cast upon the pages of the judicial history of America the foulest blot they have ever suffered. I refer to the witch- craft trials. How the blood of an American of to-day boils as he reads the story of those awful murders! The utter ' Holcombe — "The Real Chinaman," p. 209. * "Two Centuries' Growth of American Law," p. 14. 8 THE ORIGIN AND DEVELOPMENT disregard of rules of evidence, the outrageous inter- ference of the judges with the functions of the jury, the compelling of the accused to bear witness against themselves, — in short, the absence of the bar, — are painfully apparent at every stage of the proceedings. When the poor wife of Nathaniel Gary, of Charlestown, was brought before the justices for ex- amination, she was forced to stand with her arms stretched out. " I did request," says her husband in Robert Calef's account,^ " that I might hold one of " her hands, but it was denied me; then she desired " me to wipe the tears from her eyes, and the sweat " from her face, which I did; then she desired that " she might lean herself on me, saying she should " faint. Justice Hathorne replied, ' she had strength " 'enough to torment these persons, and she should '' 'have strength enough to stand.' " Giles Cory, charged with witchcraft at Salem in 1692, refused to reply to questions before a jury, and for this offense he was put in a machine of torture and pressed to death! These tales of judicial horror which I have told you are not stories of wild and barbarous tribes. They are the stories of organized society in widely separated peoples and places. And they are stories of attempts to carry on the administration of human justice without the aid of lawyers. ' " More Wonders of the Invisible World," (1700). OF THE LEGAL PROFESSION. 9 Well might Justinian exclaim : *' Praiseworthy and " necessary for human life is advocacy." ^ The bar of France, the order of advocates, — the Noblesse de la Robe, — had gone out in a river of loyal blood during the Revolution. We are not sur- prised that Napoleon in 1804 decreed the re-estab- lishment of the order, "as one of the means most " proper to maintain the probity, delicacy, disin- " terestedness, desire of conciliation, love of truth " and justice, an enlightened zeal for the vs^eak and " oppressed, which are the essential foundation of " their profession." Let us now turn our attention to the origin and development of the legal profession. Its germ will be found in the human sympathies. In the rudimentary courts of ancient days, the suitor was required to appear and make his address in per- son. Next, as a first step toward the profession, we find it permitted that the parent may plead in court in behalf of his child, the husband for the wife, the wife for the husband, or the son or daughter for the aged parent; next, the master is allowed to address the court in behalf of the servant or dependent; next, the sick, the aged, the deaf, the dumb, the blind, are allowed to appoint another to plead for them, though the person so appointed is not a relative; then friend is permitted to appear for friend, but without re- • Cod. II, Tit. VIII, 23. 10 THE ORIGIN AND DEVELOPMENT ward. At length a distinct profession, of men who are paid for their services, is recognized by the laws, and finally, after centuries of growth, the calls of humanity are listened to, and no person is so poor or friendless that he may not command a man of edu- cation, skilled in the law and in the practice, to advise, defend, and plead for him. If the action be a civil action, and the cause be just, the duty is enjoined on the lawyer not to refuse the cause for considerations personal to himself. If a man be charged with crime, and is too poor and friendless to employ a lawyer, the court will give him one, and the lawyer appointed is bound to serve or he will be disbarred. Such, in syllabus, are the steps which mark the ori- gin and development of the legal profession. The position of the bar in England and America to-day did not merely happen to be what it is. It is the result of twenty-five hundred years and more of growth and civilization. Homer gives us a picture of a trial in ancient Greece. Describing the pictorial emblazonings on the shield which Vulcan fashioned for Achilles, he tells us that, — " There in the forum swarm a numerous train: The subject of debate, a townsman slain. One pleads the fine discharged, which one denied, And bade the public and the laws decide. The witness is produced on either hand; For this or that the partial people stand. OF THE LEGAL PROFESSION. II The appointed heralds still the noisy bands, And form a ring with scepters in their hands. On seats of stone within the sacred place The reverend elders nodded o'er the case. Alternate each the attesting scepter took, And rising solemn each his sentence spoke." ^ We see no mention of a lawyer in the passage. In the democracy of Athens the power to judge was not only in the people in theory, but in fact a sub- stantial portion of the populace sat in judgment in the courts of justice. State trials took place before the people at large,^ while ordinary civil and crim- inal actions were tried before a court of five hundred Dicasts, — a body of six thousand men annually chosen by lot indiscriminately from all classes. This body was arranged in divisions of five hundred each; but frequently several divisions sat together.^ It is diffi- cult to comprehend how such a throng, swayed by the orators, and unguarded as to passion and preju- dice, could have been looked to for substantial justice. In the time of Demosthenes, the unfortunate pris- oner was brought before the people. The public prosecutor stated the charge and produced the evi- dence, which had theretofore been taken before a magistrate. He might be followed by any other speakers who wished to aid the prosecution. The prisoner was compelled to plead his own cause, often ' Pope's Ilaid, Book XVIII. 3 ib. 35 ; ib. 87. ' Forsyth's Hortensius, 42. 12 THE ORIGIN AND DEVELOPMENT in chains.^ No one could speak in the prisoner's behalf, unless the prisoner labored under some dis- ability, and then a member of his family or some friend spoke for him. Lawyers authorized to speak for men in the courts were unknown.^ The mode of trial at Athens to which I have alluded made it de- sirable that the address of the litigant or the accused should carry the vast audience of judges who sat in the cause. This gave rise to a class of professional speech-writers, — the Rhetoricians, — with whose ef- forts the literature of Greece is so rich. We see in these speech-writers the embryo of the legal adviser, for the rhetorician advised his client in what manner he should address the court. At length a great and good Athenian, who should be sainted by the bar, named Antiphon, about 440 B. c, set the fashion for charging fees for writing speeches. We may say that with that happy event the germ of the profession is fairly fertilized. In Rome, under the republic, patrons spoke in court in behalf of their clients, and orators argued lustily, if not always eloquently, against their country's unfaithful servants, or in behalf of their fellow citizens whose suffrages and favor they desired in the elections. Fees were not allowed. Presents, even, from client to advocate were forbidden by law. ' Forsyth's Hortensius, 36. » lb. 23-25. OF THE LEGAL PROFESSION. 13 Boys at seventeen, without legal preparation, were regularly brought to the bar. The speakers in the courts were generally without much education in the law. Advocacy was the road to political popularity and advancement. This was the all-sufficient reward. To accuse an unpopular official in behalf of the state was a coveted privilege. To defend an influential citizen was the next best thing. The lawyer-dema- gogue was there in his element. But the woes of the humble, the stranger, the poor and oppressed, seem to have been passed unheeded by the unpaid patrician pleaders at the bar of Rome prior to the Christian era. The great lawyers of that age were the Juriscon- sults, who gave advice on points of law, but did not plead in the courts. The Jurisconsults were hard students, worked with their books, and did much to develop Roman law. Laws passed two hundred years before Christ pre- vented the patrons from collecting fees from their clients, rich or poor; but the Jurisconsults, like the Rhetoricians of Athens, were allowed to charge for their services. The result of thus making it possible for a man to devote his life to the law, and at the same time to earn a livelihood, created a distinct pro- fession of the Jurisconsults. The effect upon the jurisprudence of that time was what it has always been where the profession has received recognition; for, as Duruy says of the Jurisconsults, "They took 14 THE ORIGIN AND DEVELOPMENT " in hand the cause of the weak, . . . they gave rights '' to those who had so long been regarded as incapa- " ble of receiving them, the son, the wife, the mother, " all those disinherited by nature, family, and law, " the spurious, the freed, the slave, and even the in- " sane, whom they sought to protect against him- '' self." 1 The Roman advocate, though unpaid, was not necessarily without a sense of professional responsi- bilities. Though perhaps not learned in the law, he would confer with some jurisconsult and so prepare himself. Some of the advocates, however, were them- selves able lawyers. Such a lawyer was Cicero, and you will sympathize with his disgust at the herd of pettifoggers who surrounded him in the forum, when he says: "What can be conceived more disgraceful " than that a man who professes to be able to under- " take the cause of his friends, and assist those who " are in difficulty, and throw the shield of his protec- " tion over the weak, should so blunder in the easiest " and most trifling causes as to appear to some an " object of pity, to others of contempt."^ The views of Cicero and his contemporaries re- garding the advocate and the views of the Juriscon- sults as to what a legal adviser should be gave to the profession at the fall of the republic distinct ideals. ' Duruy — " History of Rome," Vol. VI, pt. ii, 353. ^ Hortensius, 113. OF THE LEGAL PROFESSION. 15 Oratory cannot thrive where there is no freedom of speech. With the fall of the republic freedom of speech in Rome was gone. The love of power and political advancement, which had brought Rome's greatest men to plead in the courts, could be gratified by political rewards no longer. The result was that advocates began to work for pecuniary reward where once the only remuneration for which they struggled had been the hope to fur- ther their popularity and their political ambitions. Here was the complete overthrow of ancient pro- fessional tradition. The commercializing of the pro- fession has from the reign of Augustus on been a thorn in the flesh of the old school and its followers. To turn a profession which was founded on the human affections and sympathies to commercial use was be- neath the dignity of a patrician — below the contempt of a Roman gentleman. No wonder that the new bar was jeered at, frowned down upon, criticised and satirized most unmerci- fully during the first century of the empire. Curious- ly enough, the legal profession, in the transition from the republic to the empire, had become common and democratic. There was doubtless an extreme com- mercialism for a time. Such was the natural result of the new condition. Men probably pursued wealth as eagerly as they had been wont to pursue ambition. It is in this period that Juvenal and Martial make l6 THE ORIGIN AND DEVELOPMENT the new bar of the empire their target. One cannot but be impressed with the pictures which these writers draw of the bar of that day, and one is forced to admit that they would serve fairly well on occa- sions at the present day. Juvenal (about no A. D.) says in his Seventh Satire: — " Say now, what honors advocates attend. Whose shelves beneath a load of volumes bend? Their voice stentorian in the courts we hear, But chiefly when some creditor is near. A show of business, eager for display. Their lungs, like panting bellows, work away." But, despite gibes and pasquinades, the new bar had within itself all of the possibilities of growth. It is usual for writers to tell of the sad state into which jurisprudence had fallen during the empire. But it seems to me that never has the bar done more for the benefit of all mankind than it did in the first six centuries after Christ. The contributions to the sub- stantive literature of the law were never so numerous or so important. That literature has led the world out of the dark ages. It owes its existence only indi- rectly to emperors and their edicts. Nor does it come from the bench. The bar is directly responsible for it. Thus, in 529, when the Code of Justinian was given to mankind, that emperor called to the assist- ance of his ministers of state one Theophilus, who was a professor of law in Constantinople, and two eminent OF THE LEGAL PROFESSION. 17 court pleaders of the day. And when, in the next year, Justinian turned to jurisprudential law and set Trebonius at work upon the Pandects, the latter called to his assistance sixteen persons, of whom four were law professors and eleven were members of the bar.^ The lawyers in those days were by no means inde- pendent in their selection of clients or of causes. The presiding judge could assign counsel to either side in cases, whether civil or criminal; and if any advocate refused to act for insufficient reasons he was to be dis- barred forever. Little has thus far been written of the bar of the dark ages. We know that there were pleaders, and we find them still showing the hereditary weakness of the profession. In Greece and Rome, for example, it had been found necessary in early times to introduce the water-glass in order to shut ofif eloquence. When the water had run out, the pleader was bound to come to a halt. And similarly in the Germanic tribes, dur- ing the dark ages, advocates were allowed to plead, after securing permission of the judge ; but they were enjoined to conduct their cases in "plain, unadorned " language, without any tedious circumlocution."^ Beaumanoir, speaking of the early French lawyers, says that " it is a great hindrance to judges, who have • Murhead's Roman Law, 377-379. ' Hortensius, 209, 1 8 THE ORIGIN AND DEVELOPMENT " to listen to them, to hear long speeches which have " nothing to do with the case."^ Some will think that we still find a relic of these dark ages in the rule of our own Supreme Court, which allows to each side but one hour for argument! The bar emerged from its obscurity with the Cru- saders. We hear of it in Jerusalem in 1099, when Godfrey de Boulogne ascended the throne of the Holy City. He established courts and a bar and an admirable ethical code. But it is with the bar of England, France, and America that we are most concerned. Without going into the formative period of the English bar, the details of which are very obscure, it is suiBcient to say that it is in the reign of Edward the First (1272-1307) that the legal profession first assumes something of a definite shape. The Serjeants at law, or Serjeant counters, made up the counselors of the period. They had undoubtedly appeared as pleaders in court from very ancient times. They are a much older order than the attorneys. The "Mirror des Justices," written in the reign of Edward, — say about 1300, — prescribes the code for a pleader of that day: — " First, that he be a person receivable in judgment; " that he be no heretic, excommunicate person, nor " criminal, nor a man of religion, nor a woman, nor ' Hortensius, 216. OF THE LEGAL PROFESSION. 1 9 a beneficed clerk with cure of souls, nor under the age of twenty-one years, nor judge in the same cause, nor attainted of falsity against the right of his office. Secondly, every pleader is to be charged by oath that he will not maintain nor defend what is wrong or false to his knowledge, but will fight for his client to the utmost of his ability. Thirdly, he is to put in before the court no false delays (dila- tory pleas), nor false evidence, nor move nor offer any corruptions, deceits, tricks, or false lies, nor consent to any such ; but truly maintain the right of his clients, so that it fail not through any folly, negli- gence, or default in him. Fourthly, in respect to his salary, four things are to be considered, — the value of the cause; the pains of the Serjeant; the worth of the pleader in point of knowledge, elo- quence and gifts; the usage of the court. And a pleader is to be suspended if he be attainted of hav- ing received fees from both sides in the same cause; and if he say or do anything in contempt of court." The ancient law of England required litigants to appear in person, both in civil and criminal cases. This was modified later on in civil cases, so that an attorney in fact might attend in the stead of the party. Then in the old records we see the same name ap- pearing again and again, until it becomes evident that men made a business of so appearing; and thus has come the attorney who appears for litigants gen- erally. Gradually the attorney, or solicitor, as he is now called, has come to be the man who consults with the client and prepares the case and hands it over to the 20 THE ORIGIN AND DEVELOPMENT barrister in the form of a brief. The barrister is seldom permitted to come in contact with the client. The mayor and aldermen of London in 1263 passed regulations for admission to practice, and or- dained that " no counselor [counter] was to be an attorney." This was the beginning of the separation in England of the two branches of the legal profes- sion. With a profession recognized by the king, a pro- fessional code was a natural growth. In 1275 a statute was enacted providing that " if " any serjeant counter, or any other, do any manner " of deceit in the king's court, or consent unto it in " deceit of the court, or to beguile the court or the " party, ... he shall be imprisoned for a year and " a day and from thenceforth shall not be heard to " plead in that court for any man." Thus the respectability of the Serjeants and bar- risters was safeguarded. The crown next turned its attention to the attorneys. In 1292, King Edward directed his justices to pro- vide for each county a sufficient number of attorneys and apprentices. And these were to be taken from among " the best, the most lawful and most teachable, " so that the king and people might be well served." One hundred and fifty was the number fixed, but it might be increased at the pleasure of the judges. It will thus be noted that both attorneys and counselors OF THE LEGAL PROFESSION. 21 in England derive their authority to practice either mediately or immediately from the king. In 1403 the respectability of the solicitors' branch of the profession was further safeguarded by a stat- ute which provided for an examination of all the then practicing attorneys by the judges, who, in their dis- cretion, were to put their names on the roll. "They " that were good and virtuous and of good fame " should be received and sworn well and truly to " serve in their offices . . . and the other attorneys " should be put out." Thus were the morals of both branches of the pro- fession looked after. Since those early times acts of Parliament and rules of court have from time to time been promulgated, looking to the education and train- ing of the bar, as well as to its morals. The preparation for the law, the honesty of the applicant, and the continued worthiness of the lawyer after admission were all carefully guarded by stat- ute and rule. But it pains the student of these English institutions to find so little to suggest that the lawyer was under any positive obligation to lend his aid gra- tuitously to the oppressed. This I believe to be a matter worthy of more than passing notice, and I shall take it up later on. Before coming to the American bar, let us consider for a moment the influence of the Christian religion upon our court procedure of to-day, particularly in 22 THE ORIGIN AND DEVELOPMENT criminal cases. I dwell upon the criminal procedure, rather than upon civil procedure; for we may know that with life and liberty duly protected the proper safeguards for property are also assured. While my reading has led me to no writer who has yet remarked it, one cannot but be impressed that our criminal procedure and the safeguards thrown about prisoners in our American courts have been influ- enced greatly by the judicial murder of the Saviour in Jerusalem. Christ was charged with one oflfense, and was con- victed of a totally different ofifense of greater degree. To-day, in the courts of America, no man can be convicted of any other crime than that with which he is charged, unless it be a lesser degree of the same crime. Christ was tried with the utmost haste. With us, even in flagrant cases, self-confessed criminals are not rushed with indecent haste to their trial or punish- ment. Christ was not confronted with his witnesses. This right with us cannot be denied to the lowest wretch. Christ was made a witness against himself. With us no prisoner can be compelled to be a witness against himself. Christ was maltreated, tortured, and scourged while in custody. We see sheriffs laying down their lives against mobs in defense of prisoners, often merely that the prisoners shall have a fair trial. OF THE LEGAL PROFESSION. 23 And last, but not least, no counsel was assigned to the defense of Christ! Watson, in his "Life of the Master," points out no less than five flagrant violations of the Jewish law in the proceedings before the Sanhedrin; but there was no lawyer there to cry out against the awful wrong. Moreover, no one can read the Scriptural account of the vacillating conduct of Pontius Pilate, when called upon to put into effect the infamous sentence demanded by the Sanhedrin, without feeling sure that a single strong voice lifted up in the Saviour's behalf would have held the praetor to his evident merciful inclinations. Turn now to the effect of that trial upon judicial history. Who has not heard its cruel injustice dwelt upon in the pulpit? It has been a favorite theme among Christian speakers from the days of the Apostles. The orations of the worshipers have rung its horrors down the centuries. The effect is what we might well expect. When, after three hundred and fifty years, a Christian em- peror assumes control of the Roman Empire, we find a bar regularly organized, bound by law to see that both plaintiff and defendant are represented in every cause; and we see the praetor turning to the wretched prisoner and saying, " Si non habebunt advocatum, " ego dabo," — " If you have no advocate, I will give " you one."^ 'Justianian Code. 24 THE ORIGIN AND DEVELOPMENT The full effect of the conviction of Christ upon criminal procedure did not, however, mature in a day. It required full eighteen hundred years of Christianity to safeguard prisoners even in England and America against all of the injustices which at- tended the trial of the Messiah. The Christian emperors of Rome allowed counsel to prisoners, but they compelled the accused to be a witness against himself and put witnesses to the tor- ture to make them confess. France, following the civil law, permitted the bar of France, the Noblesse de la Robe, to speak in be- half of prisoners. She nevertheless compelled pris- oners to be witnesses against themselves, and she did not abolish the torture of prisoners and witnesses for the purpose of forcing confessions or testimony until after the French Revolution; and to this day a pris- oner in a French court is compelled to testify against himself, and is put through a merciless series of ques- tionings at all stages of the trial. My attention has been called to a celebrated murder trial occurring at Tulle in 1840, in which the prisoner was not only catechised at every stage of the evidence, but hearsay testimony was introduced against her, and the court received evidence of a theft committed by her three years before the murder and in no manner connected with it. But the slowest of all the Christian countries to OF THE LEGAL PROFESSION. 25 yield to the lessons of the trial and conviction at Jeru- salem was England. Piteously did prisoners on trial for their lives beg to be confronted by their accusing witnesses. In 1571 the Duke of Norfolk besought the court to compel the Bishop of Ross, whose examina- tion was about to be read against him, to confront him and give evidence. " If the Bishop of Ross, or any " other," he said, "can say otherwise, let them be " brought before me face to face. I have often de- " sired it, but could not obtain it."^ But the court refused. On the trial of Sir Walter Raleigh, in 1603, the evidence of Lord Cobham, taken ex parte, was read against him. Raleigh pleaded: "Let Cobham be " here, let him speak it. Call my accuser before my " face and I have done. ... I beseech you, my lords, " let Cobham be sent for. Charge him upon his soul " and his allegiance to the king. If he affirm it — " I am guilty." ^ But this heart-touching prayer of an innocent man was all in vain. In the witchcraft trials in England between 1600 and 1700 the veriest hearsay was admitted to prove the prisoner's guilt. Torture was applied to a liti- gant to make him confess as late as the reign of James the First, and the name of Francis Bacon is connected with the case! ' I State Trials, 985. = I State Trials, 15-18. 26 THE ORIGIN AND DEVELOPMENT In Scotland torture was in use until the union of the two kingdoms, and was not abolished until the reign of Queen Anne in 1709. Blackstone tells us that a defendant charged with crime was not permitted to produce any evidence whatever in his own behalf in England until the reign of Mary (1516-1558), and it was not until the reign of Anne ( 1701 ) that a pris- oner's witnesses could be examined on oath. But the worst remains to be told. In England no prisoner charged with felony, or with an inferior treason, was permitted to have his case argued to the jury on the facts until 1836! Think of it! Shakes- peare had been dead two hundred and nineteen years before any English lawyer had ever lifted up his voice in an English court in defense of a prisoner charged with murder! And how piteously they begged that counsel be allowed them! Not only were counsel not allowed to argue the facts to the jury in these criminal cases, but it rested wholly with the court whether a question of law was worthy of suffi- cient consideration for the prisoner to need legal ad- vice about it. In the reign of Elizabeth ( 1571 ) the Duke of Nor- folk, on trial for high treason, made this plea in vain : " I have had but a short warning to provide to answer " so grave a matter. I have not had fourteen hours " in all, both day and night. . . . With reverence and " humble submission I am led to think I may have OF THE LEGAL PROFESSION. 27 "counsel. ... I am hardly handled; I have had " short warning and no books. "^ Colonel Lilburne, in 1645, after entreating his judges again and again to be allowed counsel, at last cried out, but without avail: "If you will not assign " me counsel to advise and consult with, I am resolved " to go no further, though I die for it; and my inno- " cent blood be upon your hands." ^ Alice Lisle, before the able but terrible Jeffreys, in 1685, was sent to her death for having harbored in her dwelling a dissenting minister, and this in the absence of any proof that she knew his character. From the scaffold she impressed these burning words upon the black pages of English judicial history: "I ' have been told the court ought to be counsel for the ' prisoner; instead of which there was evidence given ' from thence which, though it were but hearsay, * might possibly affect my jury. My defense was ' such as might be expected from a weak woman ; but ^ such as it was, I did not hear it repeated again to ' the jury. But I forgive all persons that have done ' me wrong, and I desire that God will do likewise."^ With no bar at all in Massachusetts, the Salem witchcraft trials were possible. In England, with a well-organized bar, — with Coke and Croke and Francis Bacon, — the judicial crimes just referred to, ' I State Trials, 984. 3X1 State Trials, 322. ■^IV State Trials, 1329. 28 THE ORIGIN AND DEVELOPMENT and hundreds like them, were possible. But they were possible only because the bar was in reality but half a bar, for at that date no lawyer could address a jury on the facts in cases of high treason and felony, and no lawyer, save at the pleasure of, perhaps, a tyrant on the bench, could in such cases argue even to the court a proposition in the law of evidence or pro- cedure. While, later on, this restriction was removed in cases of high treason, thereby making possible the eloquence of Erskine, the restriction continued in cases of inferior treason and felonies until 1836, as I have already stated. Such is a brief sketch of the slow growth of crim- inal jurisprudence in England. The apostolic preaching early in the Christian era brought to the notice of men the judicial wrongs com- mitted at Jerusalem, and we not only find many abuses corrected, but we see advocates appointed by the court defending prisoners before the bar of Con- stantine's tribunals. France, following with its civil law the rules of procedure of the courts of the Roman Empire, had allowed counsel to prisoners six hundred years before England was moved to do likewise. In England the battle between the Common Law and the Roman Law had given the former a supremacy in matters of procedure. It may have been that the ritualistic sermonizing OF THE LEGAL PROFESSION. 29 of the Church of England was less favorable to a discussion of the trial before the Sanhedrin than was the manner of preaching prevalent in America. But whatever the reason was, the fact remains that the Colonists, long prior to the American Revolution, had broken away from that rule of the English law which prevented counsel from addressing juries on the facts. The history of the American bar begins with the first half of the eighteenth century. Prior to 1700 it can hardly be said that there was a bar in the Colonies. Virginia, like Massachusetts, had prohibited men from pleading causes for pay, and while this re- striction was removed in 1666, most of the lawyers prior to 1700 are said to have been without legal training.^ A few lawyers were scattered through the Col- onies, but the general situation can be best appre- hended when we learn that as late as 1747 there were but fifteen college graduates in the whole of what is now the State of New York.^ A change came with the first half of the eighteenth century. Connecticut passed laws regulating the admission of lawyers as regular officers of the court. ' " Two Centuries of American Law." -lb. 30 THE ORIGIN AND DEVELOPMENT New Jersey laid out a thorough course of prepara- tion for the bar, and established the degree of Ser- jeant at law as the crowning honor for a successful counselor. Many, particularly from the South, went to Eng- land and were educated for the bar at the Inns of Court. The bar of Maryland was particularly strong in men of ability, though it was few in num- bers. There was a strong bar in Boston by the middle of the eighteenth century. John Adams alludes to the fact that in 1750 law students were numerous. The judges in New Jersey and Massachusetts, and perhaps in other colonies, wore official gowns. Adams, speaking of the year 1761, when he was sworn as a barrister before the Superior Court in Massachusetts, says: "About this time the project " was conceived, I suppose by the Chief Justice, Mr. " Hutchinson, of clothing the judges and lawyers " with robes. Mr. Quincy and I were directed to " prepare our gowns and bands and tie-wigs, and " were admitted barristers, having practiced three " years in the inferior courts, according to one of the " new rules." Mr. Gridley, a leading Boston barrister, pointed out to Adams, in 1758, the wide range of the Ameri- can lawyer's duties — a range which has brought to our bar its breadth: "A lawyer," he says, "in this OF THE LEGAL PROFESSION. 3 1 " country must study common law, and civil law, and "natural law, and admiralty law; and must do the '^ duty of a counselor, a lawyer, an attorney, a soli- *' citor, and even of a scrivener, so that the difficulties " of the profession are much greater here than in " England."^ During the first fifty years of the eighteenth cen- tury, a humanity, born of religion and of its lessons, was nestling in the same cradle with the infant American bar. We find this humanity manifesting itself in such expressions as the following, which I quote from a letter written in October of that year by John Adams to his friend Sewall — afterwards Judge Sewall: "Now, to what higher object, to what " greater character, can any mortal aspire than to be " possessed of all this knowledge, well digested and " ready at command, to assist the feeble and friend- " less, to discountenance the haughty and lawless, to " procure redress of wrongs, the advancement of " right, to assist and maintain liberty and virtue, to " discourage and abolish tyranny and vice." Eleven years later these high ideals of John Adams found tangible expression in his own splendid conduct. In 1770, at the risk of ambition, at the risk of losing wholly his great and hard-earned popu- larity, John Adams, at the command of his chosen profession braved being branded as a traitor to the ■John Adams's Works, Vol. II, p. 46. 32 THE ORIGIN AND DEVELOPMENT cause of American liberty, for which he had stood. This he did by undertaking the defense of Captain Preston, a British officer, and his British soldiers, who were charged with murder for having fired upon a so-called "Boston patriot mob." Let John Adams's words, spoken when told that two lawyers had hesitated about taking the employment, ring forever in every American lawyer's ears! He said: — " Counsel ought to be the last thing for which an accused person should want infgi free country. The bar ought to be independent and impartial at all times and in every circumstance, and persons whose lives are at stake ought to have the counsel they prefer. ... If the accused thinks he cannot have a fair trial without my assistance, without hesita- tion he shall have it."^ Cradled with such lofty conceptions of profes- sional duty, is it a miracle that the American bar leaped forth full-panoplied? Is it to be wondered at that of the fifty-seven signers of the Declaration of Independence thirty were lawyers? Is it a matter of surprise that the Constitution of the United States ever since 1789 has contained the following provi- sion: "In all criminal prosecutions the accused shall " enjoy the right ... to be informed of the nature " and cause of the accusation; to be confronted with " the witnesses against him; to have compulsory pro- ' John Adams's Works, Vol. II, pp. 230-231. OF THE LEGAL PROFESSION. 33 "cess for obtaining witnesses in his favor; and to " have the assistance of counsel for his defense^^? ^ With the spirit of John Adams and of the young American bar and of Christian liberty thus breath- ing in the Nation's organism, it is but natural that the American lawyer should have felt the inspira- tion; that he should be found on the battle-fields of his country and in the Congress of the Nation. We are even prepared to learn that seventeen of the twenty-five Presidents of the United States have been members of the American bar! Daniel Webster, born in 1782, and admitted to the bar in 1805, had been practicing law under that Con- stitution and addressing juries in defense of prisoners charged with felonies for more than thirty years be- fore any English lawyer had ever been permitted to point out to an English jury wherein the evidence was wholly and utterly insufficient to convict an ac- cused man of the terrible charge of robbery, incest, rape, or murder! The various States of the Union have very gen- erally inserted provisions in their constitutions simi- lar to that just quoted from the Federal Constitution. For example, the organic law of our own; State declares that — '' In criminal prosecutions in any " court whatever, the party accused shall have the " right ... to appear and defend in person and " with counsel." ' Amendment No. VI H. 34 THE ORIGIN AND DEVELOPMENT So long as these constitutions endure, there will be a legal profession, with its rights and privileges, and its corresponding duties and obligations. The presence of a lawyer at the trial of a prisoner charged with crime no longer depends upon the caprice or favor of the party in power. It rests upon a firmer foundation. It is guaranteed by the organic law of both State and Nation. It is gratifying that England, to which our juris- prudence owes a great and ever-increasing debt, should have found in the Constitution of the United States so splendid a gift to the Anglo-Saxon race as is this right of the accused to be defended by counsel. And before I leave this subject let me call atten- tion to the fact that this is not all that the bar of America has given to England. It was in 1787 that the Federal Constitution vested the whole judicial power in one Supreme Court and in such inferior courts as Congress may establish. And that Su- preme Court has jurisdiction both at law and in equity. Most of the States in the organization of their courts have been swift to follow this plan, and it was but another step to the reformed procedure which permitted one court in one action to grant all of the relief which in England could be obtained only by an appeal to two distinct courts. In other words, separate courts of law and equity were abol- OF THE LEGAL PROFESSION. 35 ished. New York adopted this reformed procedure in 1847. California has possessed it from 1850. And — mirabile dictu! — in 1873 England — conserva- tive England! — with one mighty sweep, blots out all of her ancient and time-honored courts and estab- lishes the American judicial system! Think of the awful slaughter! The Court of Queen's Bench, High Court of Chancery of Eng- land, Court of Common Pleas at Westminster, the Courts of Exchequer, the High Court of Admiralty, the Court of Probate, the Court for Divorce and Matrimonial Causes, and the London Court of Bank- ruptcy, taken at one fell swoop, and their place supplied with the " Supreme Court of Judicature," — the very name, as well as the theory, borrowed from the constitution of the State of New York. I take it that the first American invasion of Eng- land was a lawyers' invasion, and that Commerce, steered by Justice, went onward with the flood! It must be evident to you all that never since history began has so broad, so proud, so responsible a position been given to any bar as that which our governments. State and National, have in their con- stitutions permanently conferred upon the legal profession of America. No one admires the sterling integrity, the pro- found learning, the splendid achievements, and the present exalted position of the bench and bar of 36 THE ORIGIN AND DEVELOPMENT England more than I do. And I would not seem ungracious nor ungrateful ; for our bar owes so much to that bench and bar that other than courteous and friendly criticism would be most unbecoming, and it is in a spirit of friendly and courteous criticism that I shall speak of the English bar. England, by her statutes and court rules, has during the last seven centuries provided well for the hon- esty and education and the respectability of the legal profession. But I am able to find neither statute nor court rule which leads me to think that she has provided equally well — at least by positive regula- tion — for the humanity of the profession. I cannot find that any English lawyer assumes any obligation to heed the cries of the indigent and oppressed, or that he is bound, even upon the court's direction, to represent, without compensation, a prisoner charged with crime. Let me cite to you, lawyer- like, two cases, in order to point my meaning. You have already noted that England was slow — very slow — to allow counsel to prisoners charged with high crimes and felonies. Now, with that in mind, please listen to this story, — Reg. v. Andrew Fogarty, tried in 185 1. I quote it from Cox's Crown Cases: — " In this case the prisoner was charged with the " murder of his wife, Margaret Fogarty, by adminis- " tering to her a dose of arsenic, at Kilkeel, on the "26th of July, 1850. OF THE LEGAL PROFESSION. 37 " Chief Baron Pigott, after conferring with the " Crown Solicitor, addressed Mr. MacMeehan, and " requested that he would undertake the defense of " the prisoner, who was unable to employ attorney " or counsel. " MacMeehan replied that he had no objection " personally to act, but there was a feeling and opin- " ion existing on the subject among the bar which '' compelled him to beg that his lordship would " excuse him for declining. After some conference " among the members of the bar. Sir Thomas Ste- " pies, Q. C, rose and addressed the court. He said " that on the part of the bar he thought it right to " state that there was a feeling among them, in which " he quite concurred, that no counsel could with pro- " priety, undertake the defense of a prisoner without " receiving instructions from an attorney. " Pigott, C. B., said that with respect to the assign- " ment of counsel and attorney for a prisoner it was " his opinion that a judge might with propriety call " on a barrister to give his honorary services to a "prisoner who was unable to employ one; but he " thought the case different as regarded an attorney; "... that he could not compel counsel to act; he " could do no more than appeal to the sense of feel- " ing of the bar." I have diligently searched the English reports, and I can find no case which has changed or modified that ruling. Turn now to the case of People v. Goldenson, 76 Cal., pages 336-344, decided in 1887. It appears from the record there that when Goldenson was brought to trial in San Francisco, on February 16, 1887, "the court informed the defendant that he 38 THE ORIGIN AND DEVELOPMENT " might name any attorney in the city to defend him, '' and he would be sent for and appointed, and that " he would be given a reasonable time to prepare " for trial." Imagine a California lawyer hesitating at such an appointment! He would not only be ostracized and shunned by his fellows, but he would be thrown into jail for contempt and disbarred. The fact is, that we must thank the ancient bar of France — the Noblesse de la Robe — for the distinct recognition of those humane ideals which are, per- haps, the proudest obligation that is taken upon him- self to-day by every member of the bar of this State. The bar of France was recognized as a lesser order of nobility from the fourteenth century down to the French Revolution. It flourished side by side with knighthood, and no chevalier of France as- sumed loftier obligations than did the Nobility of the Robe. The rules of the order, as early as 1360, after laying down divers wholesome regulations, in which are embodied the highest ethical standards of to-day, declared as its noble climax that no member of the bar of France, " under pain of being debarred, " should refuse his services to the indigent and op- " pressed." I look in vain for statute, text-book, or report to point a similar obligation upon the bar of England. It was not to be expected that the bar of France, OF THE LEGAL PROFESSION. 39 nurtured upon such chivalrous ideals as I have men- tioned, would be found wanting in hours of deep national distress. When Louis the Sixteenth went to his trial, did any man — did Louis — doubt the result? It meant death to the king. It meant death to his advocate. But can you not see Malesherbes as he answers the fatal call? " I have twice been sum- " moned," said he, " to the councils of him who was " my master when all the world coveted the honor. " I owe him the same service now, when all men " regard it perilous." The obligation of the Noblesse de la Robe is ra- diant with the spirit of chivalry, and that same obli- gation is the birthright and the heritage of every member of the California bar to-day. Coming to us from France, through the Canton of Geneva, it has been assumed by every man who has been admitted to the bar of California these thirty years and more. Ever since 1872 it has been our law that it is the duty of every attorney and counselor "never to reject, for " any consideration personal to himself, the cause of " the defenseless or the oppressed." The license to practice law in this state is not a patent of titled nobility, but it is a patent of a still greater moment. It is a patent of lofty, chivalrous ideals; a patent, which if accepted in its spirit, and lived up to in its enjoyment, is a patent for a life of purpose, for a life of usefulness, for a life of charac- ter, of honor, and of good. 40 THE ORIGIN AND DEVELOPMENT There is much to be done in our profession. Many are there who should not be there. But the profession of the law is property, and none can be deprived of it without due process of law.^ Our courts cannot, as did the English courts of old, issue drastic orders that the rolls shall be examined, and the lawyers who are virtuous and of good fame shall be retained and the others shall be put out. It is only upon specific charges, duly proved, that our rolls can be purged; and this method can never reach those whose only offense is that they are in- competent. The remedy is to be found in the exer- cise of more care in the admission to the bar of new members. Let the profession be built up from with- out. Let us turn to the Universities. Let us exact in every case a thorough preparation for the study of the law and a thorough course in the law. Let us, in other wordSj obediently follow the course pointed out by Blackstone. England, heedless of his advice, has clung to her ancient method, the Inns of Court; America, where Blackstone's influence has been most strongly felt, made haste to heed his advice. A lectureship on law was established by Thomas Jefiferson at William and Mary College in 1792. It was in attendance upon those lectures that John Marshall laid the foundation for his judicial career. By a process of development, the plan of Blackstone ' Ex Parte Garland, 71 U. S. 333. OF THE LEGAL PROFESSION. 4 1 has gradually been taken up, until now the country is becoming rich in great law schools and universities with law departments. The next step must be to make the law schools and universities the necessary pathway to the American bar. This will work a hardship in individual cases. Such preparation is not necessary to the bread-and- butter aspect of the profession, and, in occasional instances, the time could be used to the greater ad- vantage of the student if he were permitted to take a short cut to the profession. But the good of the whole profession and the welfare of the whole nation demand the course I suggest. A nation can advance no better with an ill- equipped bench than it can without any bar at all. The bench must needs be drawn from the ranks of the legal profession. The nature of our institutions is such that it seems unlikely that our judiciary will ever be so well paid by the people that the rule will be for the very ablest men in the profession to go upon the bench. This places a heavier responsibility upon the bar to see that justice is well administered than rests upon the bar of England, for there each judge of the Su- preme Court of Judicature receives some twenty-five thousand dollars per annum, with the result that Eng- land's ablest lawyers look forward to these judicial positions. The result is, that her judges are men 42 THE ORIGIN AND DEVELOPMENT of wide experience, of mature years, and of great learning and ability, — in fact, the natural leaders of her bar, — and the whole bar looks up to them. In view of our American system and salaries, we have been peculiarly fortunate, it must be admitted, in getting for our highest tribunals so many able lawyers, — and California during the entire period of her statehood has been fairly lucky in this regard; but no well-informed man will deny that such is not always the case, and that there are those on the bench to-day — particularly in our Superior Courts — who have no business to be there. In these cases it is more often that a legal education and a proper training is absent than that integrity or ability is wanting. An ignorant judge is almost as dangerous to a com- munity as a corrupt judge, and some hold an ignorant judge to be even the more dangerous of the two. If the people would improve the bench, they have a right to look to the bar for the remedy. If the bar would improve the bench, it must first improve it- self. And there is no way so certain to bring the bar to a proper standard as to insist that the sugges- tions of Blackstone regarding legal education shall be followed out and inexorably demanded. You may wait till doomsday for the graduates of law- offices to bring to the profession a higher standard than the prevailing standards of their respective offices. A stream will not rise higher than its source. OF THE LEGAL PROFESSION. 43 You cannot pluck a pearl of ethics from the shop of a shyster. It is in the academic atmosphere that the true ethical side of the profession must be absorbed. In the hurry of an active law-office the mechanics of the profession may be acquired, but its ethics must generally be inhaled elsewhere. And never did the country have a better right to look to bench and bar to meet the demands of the times. The law, always a progressive science, was never stepping with advancing strides more rapidly than now. And it behooves the bar to look well to itself and to the bench. The great problems of labor and capital are be- fore the courts as never before. Labor is dictating who shall be, and who shall not be, employed and discharged. What is to be the effect of this changed condition upon the law of master and servant? What is to be its effect upon the law of damages against the employer for acts committed through the care- lessness or negligence of the employee? The present rules of law on the subject are based upon the theory that the master is responsible for the conduct of those whom he employs of his own volition. Will the changed conditions affect the rule? This is but one of the innumerable questions which suggest them- selves, and some are of far deeper moment than the one just mentioned. 44 THE ORIGIN AND DEVELOPMENT The mammoth aggregations of capital which in these days stagger one's conception of figures give rise to new and most important questions of public policy. The changed demands upon our nation since the Spanish war has given rise, and will con- tinue to give rise, to most important constitutional questions, requiring for their solution not only a high order of intelligence and legal learning, but a high order of statesmanship as well. History is making very fast. An ever-increasing strain is being put upon our national institutions. The permanency of our liberties rests with our courts. The character of our courts is determined by the character of our bar. It is not too much to insist, for the welfare of the whole people, that a learned profession, charged with such enormous patriotic du- ties and responsibilities, shall be a learned profession indeed, and that the foundation for its high obliga- tions shall be laid well and deep. I would not have you think that I decry the bench and bar of to-day. I acknowledge frankly that both bench and bar have a weakness, in that there are too many ill-trained, unread, ignorant men among their numbers. I would see this condition improve, and, through raising the standard, and with the help of the universities, I expect to see it improve. But with all that admitted, I believe that never before in its history has the bar been, as a whole, so well equipped for its duties as it is to-day. OF THE LEGAL PROFESSION. 45 It has been natural for man since the beginning of literature to look upon the distant past as contain- ing everything that is good, while he has decried the decadence of his own day and generation. Despite its many faults and imperfections, I believe that the bar of America to-day will bear comparison with that of any period in our country's growth. And I believe that the American lawyer, combining as he does the duties of attorney and counselor^ of ad- vocate and jurisconsult, practicing in courts which dispense both law and equity, and pleading his causes under the humane guarantees of our State and Fed- eral constitutions, may rightfully claim the leader- ship of the hosts of the world of law. You already know why I will not give the suprem- acy to the English bar. The reason is fundamental. Chivalry — love of man for man, not mere love of man for books — is the basic principle of the profes- sion, for it had its origin in the human sympathies, and the English bar has been too tardy in recognizing this. Chivalrous as is the bar of France, her criminal procedure is essentially wrong, according to Ameri- can standards. Her bar, as I see it, tries its criminal cases before a mediaeval tribunal, whose procedure is little better than an inquisition. The German system knows no jury. Three judges sit in the trial of criminals. The bar is admirably 46 THE ORIGIN AND DEVELOPMENT trained, so far as reading goes, but the hard-and- fast rules as to its compensation, placing the most able and skillful on the same plane with the less worthy, coupled with the absolute sameness of prep- aration, seem to me to give but little incentive to those who would, under a different system, be am- bitious to advance. The absence in Germany of the jury system in criminal cases I also consider most detrimental to the interests of substantial justice. I believe that in our system the jury in civil cases might be abolished with- out detriment to the administration of justice. The system of law and equity is a system of check and balance. It is fitted to meet all emergencies, and the trained mind of a conscientious jurist will, in general, be more safely trusted with intricate questions of fact than will the mind of the average untrained jury- man. But not so in the criminal law. There the commands are positive. The demands of society make it impossible to prescribe by statute a system of equitable correction. Judges on the bench, sworn to uphold the hard-and-fast rules of the criminal statutes, knowing well what the written law pre- scribes, and just what that language means, are not permitted to read between the lines. Where the law is infringed the statute is the major premise; the facts of the particular case are the minor premise; and the judgment of conviction is the OF THE LEGAL PROFESSION. 47 necessary conclusion. The court cannot with con- science inject any equitable ideas of its own into the syllogism. Yet we know that there are cases which come with- in the letter of the positive law, — which are within none of the exceptions positively laid down, — and yet we feel that the circumstances are such that the harsh rule of law should not be applied. It is in such cases that juries refuse to be bound by the instruc- tions of the court, and generally work out a rough though substantial justice. I have somewhere read a story which will illus- trate my meaning: A woman on one of the islands subject to Greek rule was convicted of the murder of her husband and stepson. The fact appeared that she had overheard the two plotting to murder her beloved son by her first husband, and in a frenzy at their contemplated crime, she had killed them both. But there was nothing in the Greek law which ex- cused murder under such circumstances, and the wo- man was condemned to death. She appealed to an appellate tribunal in Athens, and the wise judges of the Athenian court, after hearing the facts, felt com- pelled to affirm the judgment, but commanded that the woman appear before them at the end of exactly one hundred years, then and there to receive the sentence of death! Modern criminal law is not flexible enough for our 48 THE ORIGIN AND DEVELOPMENT judges to imitate the Greek court of the story. The remedy is with the jury. I have impressed you with my point if you get from me the idea that the jury system in criminal cases is to the criminal law what equity is to the stat- ute and common law. It serves to check and balance the rules of law in those cases where the universality of those rules would work injustice. Wrongs have been done by juries in criminal cases, and wrongs will continue to be done by them. But such miscarriages of justice are incidental to all human systems. After all is said, the trial by jury in criminal cases is the most humane, and in the end the most conducive to the peace and order of society of any system thus far conceived. So, long live the trial by jury in criminal cases! Long live the system which provides that the hum- blest citizen charged with crime shall have twelve liberty-loving chancellors to correct for him the law, if, by reason of its universality it would, in his case, work an injustice! I return to the American bar with satisfaction. Other systems may produce men who, on the aver- age, are more highly specialized and deeply learned in particular branches; but it requires something more than deep learning to make the ideal lawyer. He must have head and training and character and breadth, and he must have the American lawyer's OF THE LEGAL PROFESSION. 49 heritage — the heart of John Adams. John Adams's conception of his profession and its duties is to-day the spirit of the American bar! Despite what disappointed litigants, modern sati- rists, or carping cynics may say, the history of the bar of America, with few — so few — exceptions, may be written thus: It is a record of unbroken faith; it is a record of enormous confidences reposed and none betrayed; it is a record which tells that men and women have given their property, their reputa- tions, their homes, their children, and their lives into the keeping of that profession, and have ever found it faithful to the sacred trust; it is a record of ines- timable service to State and Nation in time of war and peace; a record of a visible choir, chanting in unison and with compelling fervor the immortal music of Liberty. 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