Ethics in Service
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6 ETHICS IN SERVICE
BY
William Howard Taft
Addresses Delivered in the Page Lecture
Series, 1914, before the Senior Class of the
Sheffield Scientific School, Yale University
[Illustration: Yale University Press Crest]
NEW HAVEN: YALE UNIVERSITY PRESS
LONDON: HUMPHREY MILFORD
OXFORD UNIVERSITY PRESS
MDCCCCXV
Copyright, 1915
By Yale University Press
First printed October, 1915, 1000 copies
PREFACE
The legal profession discharges a most important function in a civilized
community, and it seems to me that a discussion of the ethics and ideals
of that profession would come within the purpose of the Page foundation,
which is described by the donor as intended to promote "the ethical side
of business life, including the morals and ethics of public service." I
shall first ask your attention to the history of the profession, which
shows that a paid advocacy is the only practical system, and to the
rules of conduct to which lawyers must be held in order that such a
system shall promote justice. I cannot claim to have any peculiar
knowledge upon this subject other than that derived from a somewhat
brief practice of five years at the Bar, from an experience of eleven
years on the Bench of trial and appellate courts, from a somewhat varied
experience in the responsibility of government, not only in this
country, but in those far-distant isles of the Pacific in which the
United States has been grafting the principles of free government upon a
civilization inherited from Spain.
CONTENTS
PAGE
I. History of the Profession of Law. 1
II. Legal Ethics 19
III. The Executive Power 37
IV. The Signs of the Times 65
V. More Signs of the Times 83
CHAPTER I
HISTORY OF THE PROFESSION OF LAW
It is not too much to say that the profession of the law is more or less
on trial. It is certain that there is a crisis in the life of our
courts, and that a great political issue is being forced upon the
people, for they must decide whether the courts are to continue to
exercise the power they now have, and what character of service they
shall be required to render. Judges are lawyers. They ought to be
trained practitioners and learned in the profession of the law before
they ascend the Bench, and generally they are. Therefore, our courts, as
they are now conducted, and our profession, which is the handmaid of
justice, are necessarily so bound together in our judicial system that
an attack upon the courts is an attack upon our profession, and an
attack upon our profession is equally an attack upon the courts.
We have all noted on the stage and in the current literature the
flippant and sarcastic references to the failures of the administration
of justice, and we are familiar with the sometimes insidious and too
often open impeachments of the courts, which appear in the press and
upon the hustings. They are charged with failure to do justice, with bad
faith, with lack of intelligent sympathy for socially progressive
movements, with a rigid and reactionary obstruction to the movement
toward greater equality of condition, and with a hidebound and
unnecessarily sensitive attitude of mind in respect to the rights of
property. One count that looms large in the wide range of the indictment
against our judicial system is the immoral part that lawyers are said
necessarily to play in the perversion of justice by making the worse
appear the better reason. Such a public agitation and such an issue in
politics lead to a consideration of the fundamental reasons for the
existence of our profession in the past, and a further inquiry as to the
need for it in the future, as preliminary to a discussion of the rules
of conduct that should govern its practice.
There are those who intimate that we can learn nothing from the past.
They don't say so in so many words, but they proceed on the theory that
man, under the elevating influences with which they propose to surround
him, is suddenly to become a different creature, prompted by different
motives. But those of us who have been fortunate in having an education
permeated with an atmosphere of common sense, and an idea of how to
deal with human nature as it is, realize that the world is not to be
reformed tomorrow or in a month or a year or in a century, but that
progress is to be made slowly and that the problems before us are not so
widely different from those which were presented to our ancestors as far
back as the Christian era. Nor can we fail to derive some benefit from a
consideration of such troubles, tribulations and triumphs of our
profession in the past as suggest rules of conduct for lawyers in the
future. I do not mean that we are not to aspire for better things. Nor
do I wish to deny us the happiness of hope for reasonable and real
progress toward higher ideals. I simply insist that we ought not to
ignore the lessons of experience when we deal with conditions as they
are and as everybody who is familiar with them knows them to be.
The three civilizations in which we may most profitably study the growth
and development of the legal profession are the Jewish, the Roman and
the English. Among the Jews, the Mosaic law, which went into the
smallest details of personal life, was the guide to their rule of
action. As it had religious sanction, the high priests became the actual
ministers of justice and the preservation of religion and law was united
in them. Acting as their assistants, and as assessors in the tribunals
of which the high priests were the head, were the Scribes. They were
learned in the law; had a religious and priestly character themselves;
interpreted the Mosaic law with a view to its application to the various
facts and issues which arose; and were in addition the teachers of law.
It was to them that the rabbinical injunction was made "to make the
knowledge of the law neither a crown wherewith to make a show, nor a
spade wherewith to dig." And again it was said, "He who uses the crown
of the law for external aims fades away."
In describing the principles of non-remuneration to the Scribes, the
learned German Professor Schurer says: "In Christ's censures of the
Scribes and Pharisees, their covetousness is a special object of
reproof. Hence, even if their instruction was given gratuitously, they
certainly knew how to compensate themselves in some other way." And it
is because of this evasion of this rule that we find those passages in
the eleventh chapter of Luke, the 46th and 52d verses, which read:
Verse 46. "And he said, Woe unto you also, ye lawyers! for ye lade
men with burdens grievous to be borne, and ye yourselves touch not
the burdens with one of your fingers."
Verse 52. "Woe unto you, lawyers! for ye have taken away the key of
knowledge: ye entered not in yourselves, and them that were
entering in ye hindered."
The line between the judicial and advisory functions of the Hebrew
Scribes was not closely or clearly drawn. They were evidently supposed
to occupy a disinterested position toward those who consulted them and
to be in a sense the associates of the judges. Since the motive which
prompted their study of particular cases was supposed to be only that of
vindicators of general justice, the rules which nominally guided their
action, as announced by the lawgivers, required that their services
should always be gratuitous. But quite naturally their consultation with
private litigants prompted such litigants to influence their view of the
law, and command their skill in debate. And so to evade the rule which
prevented remuneration they established the custom of giving presents in
advance. These presents given in advance to secure the kindly favor of
the Scribes are interesting as the precursors of that institution dear
to every English barrister, and not unknown--nor even objectionable--to
American lawyers, to wit, the Retainer. In fact it was the impossibility
of finding men who could remain judicial in their attitude when the
thought of remuneration moved them to advocate the cause of one of the
litigants, that put the Scribes of those days in an indefensible
position and led to the attacks upon them that we find in the New
Testament.
And so it was in Rome. There the progenitor of the lawyer was first the
priest, the _Pontifex_, mingling judicial and advisory functions, and
then the _patronus_ or the orator, a man of wealth and high standing in
the community, who had gathered about him freed men and Plebeians as his
supporters. The latter were known as his _clientes_, from which term our
word is derived. When one of his clients became involved in a lawsuit,
the _patronus_ appeared to advise the judge--a magistrate acting only as
vindicator of general justice and often not learned in the principles of
law--and was not supposed to receive any compensation. Less than the
_patronus_, but exercising similar functions, was the _advocatus_--who,
though perhaps not so learned in the law, nor so formidable as a person,
was able to assist the _patronus_ before the tribunal on behalf of
others. There was in addition a body of men called "jurist consults,"
learned in the law and able to advise, who came to be recognized as the
members of a select profession in the time of Augustus.
In the year 200 before Christ, the Cincian law was enacted, requiring
that service of the _patronus_ and the advocate should be gratuitous,
but it was soon evaded even as the Jewish laws had been. Again presents
were made to secure the skilled advocacy of men learned in the law and
acute in debate. These gifts like the Hebrew ones were paid in advance
and were called "honorariums," another term which suggests the modern
retainer. Neither an _advocatus_ nor a _patronus_ could sue for such
honorarium at law because it was a violation of law, but once paid, the
honorarium could not be recovered. Cicero boasted that he never violated
the Cincian law, but historians of his period intimate that by secret
loans and testamentary gifts his practice proved to be very profitable.
And it is certain, at least, that many of his contemporaries were made
very rich by professional remuneration. Augustus directed the passage of
another law forbidding compensation to orators and advocates, but it was
disregarded and subsequent emperors contented themselves with fixing
limits for the fees to be charged. In the golden age of the Roman law,
therefore, the payment of the profession became recognized as legitimate
and the profession itself became a definite body with clearly understood
functions.
In England, for two hundred years after the Conquest, the priests were
the only learned men, and they, too, like the Scribes, acted as judges
and advisers of litigants. Even as late as the time of Henry VIII, as we
know, the Keeper of the King's Conscience and the head of the Court of
Equity, was an Ecclesiastic in the formidable person of Cardinal
Woolsey. About the reign of King John, laymen became lawyers, and in
Henry III's time the Pope forbade priests to fit themselves in civil law
or to act as advisers in respect to it. We may properly say that the
profession of the Bar, as a recognized English institution, had its
beginnings in the struggle for individual rights by which the English
race forced the great charter from King John. We find that in the
history of the early English administration of justice, bailiffs,
undersheriffs, clerical attaches and the underlings of the courts had
gone into the business of acting as attorneys, of cheating their
clients, and of stirring up litigation. While statutes were directed
against their abuses, I cannot find that there was any English statute
forbidding lawyers to receive compensation for their services, although
the action of the Pope in forbidding his priests to study and practice
law in England may indicate some such abuses. It is certain that legal
services were not regarded as creating a debt due from the client to the
lawyer who had served him. By statute, now, attorneys and solicitors in
England are entitled to fixed fees for professional services. But in the
case of barristers, down to the present time, while they may demand a
retainer for their services in advance, they still cannot recover by
suit if the services are rendered without receiving it. This may
possibly be derived from the early Roman and Jewish view of the
professional relation and suggests the probability that early in English
history professional services were deemed to be gratuitous.
The grant of Magna Charta by King John, in response to the demand of the
Barons at Runnymede, gave birth to the Bar in its modern character.
Articles 17 and 18 of that instrument provided that Common Pleas should
not follow the court of the King, but should be held in a certain place,
and that trials upon certain writs should not be taken outside of their
proper counties. It provided further that the King or the Chief Justice
should send two justiciaries into each county, four times in the year,
to hold certain assizes within the county, with four knights of the
county, chosen by it, on the day, and at the place appointed. The 45th
article promised that the King would not make Justiciaries, Constables,
or Bailiffs excepting of such as knew the laws of the land and were well
disposed to observe them. The result of this provision by which Common
pleas courts came to be held at Westminster, while regular assizes were
held in the counties, was the establishment of the four Inns of Court,
so-called, Lincoln's Inn, the Inner and the Middle Temple, and Gray's
Inn, together with a number of others known as Chancery Inns, which
have of late years disappeared. Henry III took these Inns under his
especial protection and prohibited the study of law anywhere in London
save in the Inns of Court. They were the homes of the Bar, for within
their walls lawyers had their offices, and there students of the law
received their education. In fact, they may be said to constitute the
foundation of the modern profession of the law in the English-speaking
race.
The Inns of Court were at first an aristocratic institution, and only
men of good blood were permitted to practice in them. Indeed, that was
the case in the early days in Rome. Pliny reports that no one could
become a _jurist consult_, an _advocatus_ or a _patronus_ except he be
of the Patrician class. But soon after the Empire began, this rule broke
down and the Roman Bar became open to all. So, too, in the English Bar
at first admission was controlled by the Benchers or governing bodies of
the Inns of Court and the students were chosen only from good families.
It was probably this that led to their unpopularity and to the
denunciation which they received in Wat Tyler's day, in the fourteenth
century, and from Jack Cade's followers whom Shakespeare makes wish to
kill all the lawyers in the next century. Their exclusive spirit passed
away, however, and while aristocratic class distinctions were rigidly
maintained in English society, the Bar became most democratic through
the avenue to positions of highest influence on the Bench and in
politics which it freely offered to able men from the people. And,
indeed, there is no part of English history that is so full of interest
as the stories of her great lawyers, who, beginning in the humblest
conditions of life, fought their way by real merit into positions of
control in the government and thus gave ability and strength to the
aristocracy of which they became a part.
In the three centuries or more after the establishment of the Inns of
Court, no division appeared in the profession of the law, and it was not
until about 1556 that the profession became separated into attorneys at
law and solicitors in chancery, on the one hand, and barristers on the
other. The former dealt directly with clients and performed the
preliminary work of drafting documents and preparing briefs, while the
latter, the barristers, drafted the pleadings and presented the causes
in court. A similar division of functions prevailed in the Roman Bar. I
shall have occasion later to comment on the advantages and disadvantages
of this division, but this summary reference is sufficient for my
present purpose in tracing the history of the Bar in England. During
this period, after the establishment of the Inns of Court, the
unpopularity of the Bar manifested itself in the enactment of statutes
forbidding the election of lawyers to Parliament. This gave rise to the
noted Parliament known as the "Dunces Parliament," because everybody who
knew anything about the law, and therefore about the framing or the
operation of statutes, was excluded from membership.
In his interesting history of the American Bar, Mr. Charles Warren, of
the Boston Bar, says:
"Lawyers, as the instruments through which the subtleties and
iniquities of the Common Law were enforced, were highly unpopular
as a class in England during the period of Cromwell and Milton."
Milton wrote:
"Most men are allured to the trade of law, grounding their purposes
not on the prudent and heavenly contemplation of justice and
equity, which was never taught them, but on the promising and
pleasing thoughts of litigious terms, fat contentions and flowing
fees."
As examples of a lawyer's reputation in London in the seventeenth
century, Mr. Warren cites the titles of the following tracts printed at
that time: "The Downfall of Unjust Lawyers"; "Doomsday Drawing Near
with Thunder and Lightning for Lawyers"; "A Rod for Lawyers who are
Hereby declared Robbers and Deceivers of the Nation"; "Essay where is
Described the Lawyers, Smugglers and Officers Frauds."
I note these facts as I progress to indicate and reinforce my original
statement that the present time is not the only time in the history of
civilization when lawyers have received the condemnation of their fellow
subjects or fellow citizens. Yet not only has the profession survived
such movements but its usefulness has been recognized in succeeding
crises.
I need hardly mention that most of the progress toward individual
liberty in English history was made through the successful struggle of
the lawyers against the assertion of the divine right of Kings and
through the defence of privilege by members of our profession. Lawyers
like Lord Coke and Lord Hale stand out in the profession for their
maintenance of the independence of the judiciary and their support of
the liberties of subjects. The great charters, the Petition of Right,
the Habeas Corpus Act, the Bill of Rights, and the Acts of Settlement,
establishing the judiciary independent of Royal control, were obtained
at the instance of lawyers who knew better than any other class the
absolute necessity for such reforms in the maintenance of free
institutions.
The evolution of the Bar in this country during colonial
times--especially in New England--was a curious counterpart of the
history of the English Bar three centuries before. The founders of New
England came here to escape a persecution for their religious beliefs
and law was closely connected in their minds with the injustices, the
inequalities and the rigid hardships of the common law as administered
by judges appointed and removable at the will of the Tudors and Stuarts.
At that time lawyers exercising their profession were the instruments of
a system that had become non-progressive. They had lost the principles
of justice in technicalities and had become mere political tools in the
hands of tyrants. But in England, the law soon lost its narrowing, hard
and inflexible character through the intervention of courts of equity
and through the genius and broad views of great judges of common law
like Mansfield. It was modified further by the civil law and by the
needs of a developing world commerce, and after the action of the Long
Parliament and the Revolution it was no longer used as an instrument of
tyranny.
In this country, however, the Puritans and the Pilgrims approved of
neither the common law nor the English judicial system, and as lawyers
were only part of that system, they considered the abolition of the
profession from their society as an end devoutly to be wished for and
promptly sought. Among the Pilgrim fathers there was not a single
lawyer, while among the Puritans there were only four or five who had
been educated as lawyers and even they had never practiced. The
consequence was that during the seventeenth century and far into the
eighteenth, lawyers had little place in the social or political
institutions of the colonies. In New England there was a theocracy. The
judges--none of them lawyers--were all either ministers or directly
under the influence of the clergy. A colonial common law grew up among
them, based on a theological reasoning and was really administered
without lawyers. In the Massachusetts body of liberties, it was provided
that a man unfit to plead might employ a person not objectionable to the
Court to plead for him, on condition that he give him no fee or reward.
In 1663 a usual or common attorney was prohibited from sitting in the
general court.
As society progressed, however, as commerce and trade increased, as
wealth grew, as business transactions became more extended and as
learning spread from the clergy to other persons, opportunity and
inducement were furnished for the study of the law, and professional
training became more general. The crying need for a learned and
honorable profession of the law was made manifest by the growth of a
class of advocates and advisers whose influence was most pernicious.
Litigants needed guidance in the presentation of their cases and no
learned profession being available, the underbailiffs, undersheriffs,
clerks and other underlings of the administration of justice began to
practice, without real knowledge. Greedy and lacking in principle, they
developed trickery and stirred up litigation for their own profit, just
as their predecessors had done three hundred years before in England.
Colonial statutes were then passed, forbidding such underlings of the
court to practice law at all. But lawyers were not popular in colonial
days even after the Bar became able and respectable. In fact a bitter
spirit was manifested against lawyers even as late as Shays's Rebellion
after the Revolutionary War.
Between the years 1750 and 1775, more than a hundred and fifty young men
from the colonies were admitted to one of the four Inns of Court and
became educated lawyers with the purpose of entering the profession in
their native colonies. How far the presence of such a class of educated
lawyers through the colonies contributed to the resentment against the
stupidity and injustice of the English colonial policy which brought
about the Revolution, cannot be estimated exactly; but certain it is
that the preparation of the lawyers who were then in their prime appears
to have been Providential interference in behalf of the people of the
United States. Never in history has the profession of the law received
so great a harvest of profound students of the constitutional principles
of government as did our country at this time. Our lawyers signed the
Declaration of Independence, served in the Continental Congress, acted
as delegates to the Constitutional Convention, and met in the various
conventions called by the states to consider the ratification of that
great instrument. They not only knew that common law, but they had
studied closely the political history of Greece and Rome, and were
familiar with the principles of government as set forth by Montesquieu
and Adam Smith.
It was the American Bar that gave to the people of the United States
such lawyers as Alexander Hamilton, John Jay, James Madison, George
Mason, Thomas Jefferson, Patrick Henry, John Adams, James Otis, Samuel
Chase, Samuel Adams, Roger Sherman, Oliver Ellsworth, James Wilson,
Edmund Randolph and many others not less learned and brilliant, to
establish their liberties, frame the limitations of their government and
care for the protection of individual rights. The same Bar furnished a
little later that lawyer and judge, John Marshall, whose interpretation
of the Constitution was as important in its beneficent effect as its
original framing. That Bar not only helped largely in constructing the
ship of state but it was also most instrumental in launching it on a
triumphant and useful course through a century and a quarter. The
profound gratitude of succeeding generations owing to such a Bar ought
never to be dimmed by partisan or misguided diatribes upon lawyers and
judges.
CHAPTER II
LEGAL ETHICS
I have heard the utility of legal ethics denied. It is said that the
rules in legal ethics are the same as the moral rules that govern men in
every branch of society and in every profession--except as there may be
certain conventions as to professional etiquette--and that if a man is
honest, there ought to be no difficulty in his following the right
course in the discharge of his professional duties. If a man is lacking
in probity of character, it is said the discussion of legal ethics will
do him no particular good, because if he is tempted to a crooked path or
an unjust act by his pecuniary interest, he will yield, and neither
lectures on ethics nor the establishment of an ethical code will make
him good; whereas the upright man will either not be so tempted, or
should he be, he will clearly perceive the necessity for resisting the
temptation.
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