But how persistent counsel may be in pressing for the acquittal of his client, and to what extent he may be justified in throwing his own personal character as a weight in the scale of justice, are questions of ethics rather than of law. No counsel is justifiable who defends even a just cause with the weapons of fraud and falsehood, and no man on the other hand can excuse himself for accepting the confidence of the accused, and then betraying it by a feeble and heartless defence. And in criminal cases we think the court may sometimes have a duty to perform in seeing personal to himself, where it appears to him that in no other mode can the law be vindicated and justice done to his client; but these cases are so rare, that doubtless they will stand out in judicial history as notable exceptions to the ready obedience which the bar should yield to the authority of the court. The famous scene between Mr. Justice Buller and Mr. Erskine, on the trial of the Dean of St. Asaphs for libel, -5 Campbell's Lives of the Chancellors, c. 158; Erskine's Speeches, by Jas. L. High, Vol. I. p. 242,- will readily occur to the reader as one of the exceptional cases. Lord Campbell says of Erskine's conduct: "This noble stand for the independence of the bar would alone have entitled Erskine to the statue which the profession affectionately erected to his memory in Lincoln's Inn Hall. We are to admire the decency and propriety of his demeanor during the struggle, no less than its spirit, and the felicitous precision with which he meted out the requisite and justifiable portion of defiance. His example has had a salutary effect in illustrating and establishing the relative duties of judge and advocate in England." And elsewhere, in speaking of Mr. Fox's Libel Act, he makes the following somewhat extravagant remark: "I have said, and I still think, that this great constitutional triumph is mainly to be ascribed to Lord Camden, who had been fighting in the cause for half a century, and uttered his last words in the House of Lords in its support; but had he not received the invaluble assistance of Erskine, as counsel for the Dean of St. Asaphs, the Star Chamber might have been re-established in this country." And Lord Brougham says of Erskine: "He was an undaunted man; he was an undaunted advocate. To no court did he ever truckle, neither to the Court of the King, neither to the Court of the King's Judges. Their smiles and their frowns he disregarded alike in the fearless discharge of his duty. He upheld the liberty of the peers against the one; he defended the rights of the people against both combined to destroy them. If there be yet amongst us the power of freely discussing the acts of our rulers; if there be yet the privilege of meeting for the promotion of needful reforms; if he who desires wholesome changes in our Constitution be still recognized as a patriot, and not doomed to die the death of a traitor, let us acknowledge with gratitude that to this great man, under Heaven, we owe this felicity of the times." Sketches of Statesmen of the Time of George III. A similar instance of the independence of counsel is narrated of that eminent advocate, Mr. Samuel Dexter, in the reminiscences of his life by "Sigma," published at Boston, 1857, p. 61. See Story on Const. (4th ed.) § 1064, note. [* 336] that the prisoner suffers nothing* from inattention or haste on the part of his counsel, or impatience on the part of the prosecuting officer or of the court itself. Time may be precious to the court, but it is infinitely more so to him whose life or whose liberty may depend upon the careful and patient consideration of the evidence, when the counsel for the defence is endeavoring to sift the truth from the falsehood, and to subject the whole to logical analysis, so as to show that how suspicious soever the facts may be, they are nevertheless consistent with innocence. Often indeed it must happen that the impression of the prisoner's guilt, which the judge and the jury unavoidably receive when the case is opened to them by the prosecuting officer, will, insensibly to themselves, color all the evidence in the case, so that only a sense of duty will induce a due attention to the summing up for the prisoner, which after all may prove unexpectedly convincing. Doubtless the privilege of counsel is sometimes abused in these cases; we cannot think an advocate of high standing and character has a right to endeavor to rob the jury of their opinion by asseverating his own belief in the innocence of his client; and cases may arise in which the court will feel compelled to impose some reasonable restraints upon the address to the jury,1 but it is better in these cases to err on the side of liberality; and restrictions which do not leave to counsel, who are apparently acting in good faith, such reasonable time and opportunity as they may deem necessary for presenting their client's case fully, may possibly in some cases be so far erroneous in law as to warrant setting aside a verdict of guilty.2 Whether counsel are to address the jury on questions of law in criminal cases, generally, is a point which is still in dispute. If the jury in the particular case, by the constitution or statutes of the State, are judges of the law, it would seem that counsel should be allowed to address them fully upon it, though the contrary seems to have been held in Maryland: while in Massachusetts, Thus it has been held, that, even though the jury are the judges of the law in criminal cases, the court may refuse to allow counsel to read law books to the jury. Murphy v. State, 6 Ind. 490. And see Lynch v. State, 9 Ind. 541; Phœnix Insurance Co. v. Allen, 11. Mich. 501. 2 In People v. Keenan, 13 Cal. 581, a verdict in a capital case was set aside on this ground. Lynch v. State, 9 Ind. 541; Murphy v. State, 6 Ind. 490. Franklin v. State, 12 Md. 236. What was held in that case was, that counse should not be allowed to argue the constitutionality of a statute to the jury; and where it is expected that the jury will receive the [* 337] law from the court, it is nevertheless held that counsel has a right to address them upon the law. It is unquestionably more decorous and more respectful to the bench that argument upon the law should always be addressed to the court; and such, we believe, is the general practice. The jury hear the argument, and they have a right to give it such weight as it seems to them properly to be entitled to. For misconduct in their practice the members of the legal profession may be summarily dealt with by the courts, who will not fail, in all proper cases, to use their power to protect clients or the public, as well as to preserve the profession from the contamination and disgrace of a vicious associate. A man of bad reputation may that the Constitution, in making the jury judges of the law as well as of the facts, did not empower them to decide a statute invalid. This ruling corresponds to that of Judge Chase in the United States v. Callendar, Whart. State Trials, 688, 710. But see remarks of Perkins, J., in Lynch v. State, 9 Ind. 542. 51. Commonwealth v. Porter, 10 Met. 263; Commonwealth v. Austin, 7 Gray, * "As a class, attorneys are supposed to be, and in fact have always been, the vindicators of individual rights, and the fearless assertors of the principles of civil liberty, existing, where alone they can exist, in a government, not of parties nor of men, but of laws. On the other hand, to declare them irresponsible to any power but public opinion and their consciences, would be incompatible with free government. Individuals of the class may, and sometimes do, forfeit their professional franchise by abusing it; and a power to exact the forfeiture must be lodged somewhere. Such a power is indispensable to protect the court, the administration of justice, and themselves. Abuses must necessarily creep in; and having a deep stake in the character of their profession, they are vitally concerned in preventing it from being sullied by the misconduct of unworthy members of it. No class of community is more dependent on its reputation for honor and integrity. It is indispensable to the purposes of its creation to assign it a high and honorable standing; but to put it above the judiciary, whose official tenure is good behavior, and whose members are removable from office by the legislature, would render it intractable; and it is therefore necessary to assign it but an equal share of independence. In the absence of specific provision to the contrary, the power of removal is, from its nature, commensurate with the power of appointment, and it is consequently the business of the judges to deal with delinquent members of the bar, and withdraw their faculties when they are incorrigible." Gibson, Ch. J., In re Austin et al., 5 Rawle, 203. See State v. Kirke, 12 Fla. 278; Rice's Case, 18 B. Monr. 472; Walker v. State, 4 W. Va. 749. An attorney may be disbarred for a personal attack upon the judge for his conduct as such; but the attorney is entitled to notice, and an opportunity to be heard in defence. Beene v. State, 22 Ark. 149. See In re Wallace, L. R. be expelled for that alone;1 and counsel who has once taken part in litigation, and been the adviser or become intrusted with the secrets of one party, will not afterwards be suffered to engage for an opposing party, notwithstanding the original employment has ceased, and there is no imputation upon his motives.2 And, [* 338] on the other hand the court will not allow counsel to be made the instrument of injustice, nor permit the client to exact of him services which are inconsistent with the obligation he owes to the court and to public justice; a higher and more sacred obligation than any which can rest upon him to gratify a client's whims, or to assist in his revenge.3 1 P. C. 283; Ex parte Bradley, 7 Wall. 364; Withers v. State, 35 Ala. 252; Matter of Moore et al., 63 N. C. 397; Biggs, Ex parte, 64 N. C. 202; Bradley v. Fisher, 13 Wall. 335; Dickens's Case, 67 Penn. St. 169. 1 For example, one whose reputation for truth and veracity is such that his neighbors would not believe him when under oath. Matter of Mills, 1 Mich. 393. See In re Percy, 36 N. Y. 651; People v. Ford, 54 Ill. 520. An attorney convicted and punished for perjury, and disbarred, was refused restoration, notwithstanding his subsequent behavior had been unexceptionable. Ex parte Garbett, 18 C. B. 403. In Gaulden v. State, 11 Geo. 47, the late solicitor-general was not suffered to assist in the defence of a criminal case, because he had, in the course of his official duty instituted the prosecution, though he was no longer connected with it. And See Wilson v. State, 16 Ind. 392. 3 Upon this subject the remarks of Chief Justice Gibson in Rush v. Cavanaugh, 2 Penn. St. 189, are worthy of being repeated in this connection. The prosecutor in a criminal case had refused to pay the charges of the counsel employed by him to prosecute in the place of the attorney-general, because the counsel, after a part of the evidence had been put in, had consented that the charge might be withdrawn. In considering whether this was sufficient reason for the refusal, the learned judge said: "The material question is, did the plaintiff violate his professional duty to his client in consenting to withdraw his charge . . . instead of lending himself to the prosecution of one whom he then and has since believed to be an innocent man? "It is a popular but gross mistake to suppose that a lawyer owes no fidelity to any one except his client, and that the latter is the keeper of his professional conscience. He is expressly bound by his official oath to behave himself in his office of attorney with all due fidelity to the court as well as to the client; and he violates it when he consciously presses for an unjust judgment; much more so when he presses for the conviction of an innocent man. But the prosecution was depending before an alderman, to whom, it may be said, the plaintiff was bound to no such fidelity. Still he was bound by those obligations which, without oaths, upon all men. The high and honorable office of a counsel would be degraded to that of a mercenary, were he compellable to do the bidding of his client against the dictates of his conscience. The origin of the name proves the client to be rest The Writ of Habeas Corpus. It still remains to mention one of the principal safeguards to personal liberty, * and the means by which ille- [* 339] gal restraints upon it are most speedily and effectually remedied. To understand this guaranty, and the instances in which the citizen is entitled to appeal to the law for its enforcement, we must first have a correct idea of what is understood by personal liberty in the law, and inquire what restraints, if any, must exist to its enjoyment. Sir William Blackstone says, personal liberty consists in the power of locomotion, of changing situation, or moving one's person to whatsoever place one's own inclination may direct, without imprisonment or restraint, unless by due course of law.1 It appears, therefore, that this power of locomotion is not entirely unrestricted, but that by due course of law certain qualifications and limitations may be imposed upon it without infringing upon constitutional liberty. Indeed, in organized society, liberty is the creature of law, and every man will possess it in proportion as the laws, while subordinate to the counsel as his patron. Besides, had the plaintiff succeeded in having Crean held to answer, it would have been his duty to abandon the prosecution at the return of the recognizance. As the office of attorney-general is a public trust which involves, in the discharge of it, the exercise of an almost boundless discretion by an officer who stands as impartial as a judge, it might be doubted whether counsel retained by a private prosecutor can be allowed to perform any part of his duty; certainly not unless in subservience to his will and instructions. With that restriction usage has sanctioned the practice of employing professional assistants, to whom the attorney-general or his regular substitute may, if he please, confide the direction of the particular prosecution; and it has been beneficial to do so where the prosecuting officer has been overmatched or overborne by numbers. In that predicament the ends of justice may require him to accept assistance. But the professional assistant, like the regular deputy, exercises not his own discretion, but that of the attorney-general, whose locum tenens at sufferance he is; and he consequently does so under the obligation of the official oath." 1 Bl. Com. 134. Montesquieu says: "In governments, that is, in societies directed by laws, liberty can consist only in the power of doing what we ought to will, and in not being constrained to do what we ought not to will. We must have continually present to our minds the difference between independence and liberty. Liberty is a right of doing whatever the laws permit, and if a citizen could do what they forbid, he would no longer be possessed of liberty, because all his fellow-citizens would enjoy the same power." Spirit of the Laws, Book 11, c. 3. |