The advocate is part and parcel of the whole machinery of administering justice, as much so as the jury, the judge, or the prosecutor. He forms an integral part of the whole contrivance called the trial; and the only object of the trial is to find out legal truth, so that justice may be administered. In this trial, it has been found most desirable to place the judge beyond the parties, to let both parties appear before him, and to let both parties say all they can say in their favor, so that the truth may be ascertained without the judge's taking part in the inquiry, and thus becoming personally interested in the conviction, or in either party. The advocate is essentially an amicus curæ; he helps to find the truth, and for this purpose it is necessary that all that can be said in favor of his client or in mitigation of the law, be stated; because the opposite

been unrecognized by the profession. It is, that the barrister is engaged for the purpose of seeing that his client be treated according to law and in no other way; that he have all the evidence that can be procured and set forth for him; that the evidence be taken according to rule and practice; that the judge charge the jury according to law and rule; in short, that the whole proceedings be regular and complete in all that is required on the part of the client. Acting on this principle, the barrister can retain his brief to the last, as well as on the principle of absolute agency; but he is not required to be an accomplice in suborning false evidence, or in setting forth pleas that he knows to be fraudulent; nor is he bound to anticipate the judgment by a declaration of the verdict in the act of throwing up his brief.

"This principle has been recognized so far that there is a prospect of its becoming more generally adopted as the rule of the profession. But the Smyth case suggests to us, that it may very properly be extended to the other half of the profession-the attorneys. They are bound to exercise discretion in their conduct with their clients, otherwise they become parties to conspiracy and fraud. Considering all the opportunities that a man in the profession has of discriminating, it is difficult to find him thus placed and to acquit him either of an extraordinary degree of dulness or of culpable knowledge. It is, for example, excessively difficult to understand how any professional man could see Smyth, hear him tell his lies-nay, take them down in writing in order to insert them in the brief-and not understand the whole character of the fraud. Now no attorney would put himself into this position, however fraudulent his client might be, if he confined himself to the principle which we have mentioned as adopted by barristers."

party does the opposite, and because the case as well as the law ought to be viewed from all sides, before a decision be made. The advocate ought not only to say all that his client might say, had he the necessary skill and knowledge, but even more; but the client or prisoner has no right to speak the untruth in his own behalf, nor has the lawyer the right to do it for him.

Chief Justice Hale severely reproves the misstating authorities and thus misleading the court; but why should this be wrong, and the misstating of facts not? Many prisoners would certainly misstate authorities if they could. Trials are not established for lawyers to show their skill or to get their fees, nor for arraigned persons to escape. They are established as a means of ascertaining truth and dispensing justice; not to promote or aid injustice or immorality. The advocate's duty is, then, to say everything that possibly can be said in favor of his case or client, even if he does not feel any strong reliance on his argument, because what appears to himself weak may not appear as such to other minds, or may contain some truth which will modify the result of the whole. But he is not allowed to use falsehood, nor to injure others. Allowing this to him would not be independence, but an arbitrarily privileged position, tyrannical toward the rest of society. To allow tricks to a whole profession, or to claim them by law, seems monstrous. There is no separate decalogue for lawyers any more than for king, partisan or beadle.

The lawyer is obliged, as was stated before, to find out everything that can be found in favor of the person who has intrusted himself to his protecting care, because the opposite

1 The famous case of Mr. Philips, now on the bench, when defending Courvoisier, is treated at considerable length in Townsend's Modern State Trials, under the trial of Courvoisier. It must be allowed that the defence is not successful, though ingenious. On page 312 of vol. i. of that work, the reader will also find the titles of numerous writings bearing on the moral obligations of the advocate, to which may be added those I have mentioned in the notes appended to my remarks on the advocate in the 2d vol. of the Political Ethics. I also refer to pp. 59 and sequ. in my Character of the Gentleman; Charleston, S. C. 1847.

will be done by the opposite party. He has no right to decline the defence of a person, which means the finding out for him all that fairly can be said in his favor, except indeed in very peculiar cases. Declining the defence beforehand would amount to a prejudging of the case, and in the division of judicial labor every one ought to be defended. The defence of possible innocence, not the defeat of justice, is the aim of counsel.

Great advocates, such as Romilly,2 have very distinctly pronounced themselves against that view which still seems the prevailing one among the lawyers; and Dr. Thomas Arnold was so deeply impressed with the moral danger to which the profession of the law, at present, exposes its votary, that he used to persuade his pupils not to become lawyers, while

1 At the very moment that these pages are passing through the press, (in 1853,) a case has occurred in an English court, of a young man indicted for burglariously entering the room of some young woman. His counsel in the defence suggested that probably the young lady had given an appointment to the prisoner. "That is not in the brief," cried the prisoner himself, and the court justly reprimanded the barrister. It ought to be added that in this case the barrister wrote a letter of submission to the court. This has not been done in other cases quite as bad in principle. Thus, another publicly reproved barrister insisted that he had done what the profession required, when he had resorted to the following trick. He had subpoenaed the chief witness against his client, so that he could not appear, and then argued that the prosecutor must know his client to be innocent, else he would certainly have produced his witness, etc.

Since this was written, the following case has occurred (in Cincinnati, 1853.) When the defence came on, 300 witnesses were sworn. The prosecution of course did not believe that its turn would come for a long time. But the defence only examined some four witnesses, and then declared it had done. The prosecution was not prepared to proceed, and asked for delay, but the court decided that the case could not be stopped. Thus the whole trial was upset, and a verdict of not guilty was found. Now, are such atrocities to be borne with? Does freedom consist in giving all possible protection to trickery?

2 There is a very excellent passage on this topic in the reflections of Sir Samuel Romilly, on himself and the good he might do, should he be appointed lord chancellor, page 384 and sequ. of vol. iii. of his Memoirs; 2d ed. London, 1840.

Mr. Bentham openly declared that no person could escape, and that even Romilly had not remained wholly untainted.

It ought to be observed, however, that a more correct opinion on the obligations of the advocate seems to be fast gaining ground in England. At present it seems to be restricted to the public, but the time will come when this opinion will reach the profession itself. Like almost all reforms, it comes from without, and will ultimately force an entrance into the courts and the inns. We are thus earnest in our desire of seeing correct views on this subject prevail, because we have so high an opinion of the importance of the advocate in a modern free polity.1

This was written in 1853.

CHAPTER XXI.

SELF-GOVERNMENT.

THE last constituent of our liberty that I shall mention is local and institutional self-government. Many of the guaran

1 The history of this proud word is this: It was doubtless made in imitation of the Greek autonomy, and seems originally to have been used in a moral sense only. It is of frequent occurrence in the works of the divines who flourished in the sixteenth and seventeenth centuries. After that period it appears to have been dropped for a time. We find it in none of the English dictionaries, although a long list of words is given compounded with self, and among them many which are now wholly out of use; for instance, Shakspeare's Self-sovereignty. In Dr. Worcester's Universal and Crit. Dictionary, the word is marked with a star, which denotes that he has added it to Dr. Johnson's, and the authority given is Paley, who, to my certain knowledge, does not use it in his Political Philosophy, nor have several of my friends succeeded in finding it in any other part of his works, although diligent search has been made.

Whether the term was first used for political self-government in England or America I have not been able to ascertain. Richard Price, D.D., used it in a political sense in his Observations on the Nature of Civil Liberty, etc., 3d edition, London, 1776, although it does not clearly appear whether he means what we now designate by independence, or internal (domestic) self-government. Jefferson said, in 1798, that "the residuary rights are reserved to their (the American states) own selfgovernment." The term is now freely used both in England and America. In the former country we find a book on Local Self-government; in ours, Daniel Webster said, on May the 22d, 1852, in his Faneuil Hall speech: "But I say to you and to our whole country, and to all the crowned heads and aristocratic powers and feudal systems that exist, that it is to self-government, the great principle of popular representation and administration-the system that lets in all to participate in the counsels that are to assign the good or evil to all-that we may owe what we are and what we hope to be."

Earl Derby, when premier, said, in the house of lords, that the officers