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be no one present but the court officers, who are there for their per diems; the jury in the box, who can not get away, the opposing counsel and the judge on the bench. The litigants have sworn “to the best of their ability,” and hurried back to their business. You will tarry in vain to be electrified by the "Columbian orator;" but you will find the cause of the litigants in the hands of masters of the law, gladiators in the fence and foil of debate, logicians keen and analytical, panoplied with that power ascribed by Mrs. Sigourney to a jurist: “the dexterity to untwist the spider web of invention; strength to strike, and wisdom to arrest those ideas of justice which come only as the lightning's flash amid the storm of human passion." I depreciate not the gift nor the power of oratory. Mankind will never become so realistic and impassive that he who can “marry beautiful thoughts to beautiful words” will not be able to charm while he persuades. But the lawyer, vacuous of learning, who carries in his quiver only arrows for the heart, in this day of practical affairs, will sooner or later be regarded as "a verbal horror and a rhetorical nuisance.” Often he is helpless in the arena of the court room. I have seen him cut down at the knee with the keen edge of logic, and crushed with the battle-axe of authority, wielded by his adversary of halting speech, before he ever reached the point where he could turn loose the fusillade of his vocabulary, resonant with sound.
Some of the ablest lawyers of our metropolitan cities, enjoying the largest incomes from their practice, are not oftenest seen in the court room. Instead of being what Edmund Burke aptly termed "fomenters of petty strifes," lawyers are becoming more and more the great peacemakers. They receive large retainers from business men for constructing the details of important transactions and counseling in business complications, thereby preventing misconceptions and ambiguities in contracts, and suppressing litigation. They are masters of detail, and thoroughly versed in leading adjudications. They are not noisy shysters, impudent charlatans, who seek to thwart justice by mere cunning and questionable methods--jury-fixers and witness-suborners. When routed at the bar, like gladiators they yield gracefully. They do not go out on the street corners and into saloons and besmirch with slimy innuendo the ermine of the judge; nor sit down, like the devil, in the shape of a toad, and whisper a “roast” for the court in the ear of some reporter of a newspaper whose columns are an open cesspool, foul with sensational and salacious slanders of women, preachers and judges.
The whole tendency of the age, through the instrumentality of the college, the law school and bar associations, is to elevate the character and office of the lawyer. And nothing better illustrates the abnormal tendency of the legislative branch of some local governments to pass into the control of undeservers and incompetents than attempts recently made to discredit the profession of law. Not only is it difficult to persuade a good lawyer to stand for the legislature, but he is likely to be defeated if nominated, because he is regarded as an intellectual "plutocrat.” One legislature lately sought to muzzle the lawyers by placing a statutory limitation upon their speeches. Another wanted to do away with them altogether, and make every man his own lawyer, forgetting the truth of the maxim that “He who has himself for a client has a fool for a lawyer.” Such legislators are simply fossils over 2,000 years old. The ancient Greeks for a long time denied the right of a litigant to have counsel or an advocate. If infirm, sick, or of stammering speech, some near relative, blessed with the gift of "gab," was permitted to speak for him. Clandestinely litigants hired orators to prepare speeches for them, to be gotten off as best they might before tribunals of justice. It was on such meat that classic orators like Demosthenes, Isocrates and Isaeus thrived. There was a good deal of human nature in the high emperium of the classics, for those Attic orators turned to good account their opportunity by taking fees from and writing speeches for both sides. A delver into classic literature, with more zeal for its curiosities than contempt for the ways of the ambidexter, mentions it to the credit of the versatility of Antiphon, that he wrote two speeches—one for the prosecution and one for the defense in a trial for homicide. And it is even hinted that the exalted Demosthenes, under the temptation the "reformers" of that day held out by repressive legislation, was suspected of exhibiting the oration he prepared for a client to the opposing party.
Sir Thomas More, in his Utopia, excluded lawyers from his ideal state, not knowing that the barbarous Muscovites long before anticipated his theory, the practice of which produced a plenteous harvest of corruption and rascality among inferiors. Jack Cade was a statesman of like temper toward the profession. When he was trying to break through the gates of London and lead his tatterdemalion crew to pillage and plunder, one of his rabble followers cried out: “The first thing we do let's kill all the lawyers." To which, with all the fervor of an outlaw, Jack responded: “Aye, that I mean to do; for is it not a lamentable thing that out of the skin of the innocent lamb shall be made parchment, and that parchment being scribbled on should undo a man?" I doubt not that some Jack Cade might earn the immortality of one of Byron's heroes, who amid a thousand vices had one virtue, by strangling a lot of shysters who prostitute the profession of law as a putrid carcass pol lutes the sweet waters of a spring; yet, I always had a suspicion that Jack was like many other fellows who rail at lawyers, he preferred to eat somebody else's lamb and put the skin where it might not be uncovered by some lawyer and made a witness against him.
Those who place under the ban of reprobation the whole profession because of the fellows who “steal the livery of heaven to serve the devil in,” fail to make allowance for the natural law of generation. The fly multiplies faster than the eagle. The process in the case of the fly is so easy and quickbeing so little and of such vile stomach it finds so much to live and thrive on; while the eagle, looking out from its eyrie in the storm-swept cliff or cedar top, spreads its wings toward the heavens, and the prey suitable for its capacious stomach is indeed game, hard to catch and with more power of resistance. So, if in any community there are more of the insect breed of lawyers than the broad pinioned bird of Jove, it is because the facilities for making the one are greater than for producing the other, and because some communities furnish more filth for the one to batton on than it does proper sustenance for the other breed. The rogue and the shyster mate under the law of affinity, and the community that patronizes the shyster is more responsible for him than the profession to which he brings discredit.
While I do not subscribe to the philosophy of Thomas Carlyle, which teaches that in casting forth the seed-grain it is as apt to produce a lemlock forest as a flourishing banyan tree, but rather prefer the teachings of the voice which proclaims: what a man sows that shall he also reap; yet I am not attached to any conventional rules for either educating lawyers, or regulating their conduct, or designating their career. Sometimes I am almost persuaded that the lawyer is born, not made. While we see multitudes that know too little, we see too many that know too much of mere "black letter wisdom.” Often do we see justice crucified in her own dedicated temple by the inapt. ness and ignorance of the advocate, and again we see her transfixed in the arena of trial by the man of learning for the want of common sense, that quality which dominates all the mental forces. The latter tendency is a growing manifestation in this bookish age of case law. Case after case is tried, by pattern, on a given theory and lost on the facts. Napoleon Bonaparte said he could whip any general who fought with his watch in his hand, and Wellington said that no general could tell how a battle should be fought until his troops were in action. Von Moltke, a short time prior to the Franco-Prussian war, referring to a book on "Strategy," said: "I do not see how anybody can write on strategy; nobody can write on it as a science, for strategy is nothing else but the application of sound common sense to warfare. Science does not give us any fundamental principles which we may apply everywhere; it does not give us any formula which will help us to surmount all obstacles. The thing is to comprehend every situation correctly, and then make such dispositions as the occasion may require."
I was once trying to a jury an important case. Associated with me were my partners, George G. Vest, now United States senator from Missouri, and Judge Russel Hicks. Judge Hicks always had a theory npon which a case was to be tried. I was conducting the cross examination of an important witness, by whom I was developing a fact dangerous to the adversary, whereat the old judge shook me impatiently by the elbow, saying: "You are getting away from our theory of the case.” V'est interposed, with characteristic impetuosity and quick discernment: "To the devil with the theory; beat the case, Philips, on the facts,” and we did it.
There can be no better prescription presented by me, for maintaining both the morale and influence of the American bar, than to urge the inculcation of a sentiment of devotion to the law for the sake of law; not as to a mistress who has favors to bestow, but as to the mother of our political life and liberty, in whose right hand are riches and honors and peace. There are too many lagos in the learned professions, whose motto is: "Put money in thy purse.” Our profession has, and should have, its chivalry and its ethics. In the world's best civilization the great lawyer has ever been the bold knight on whose courage and ability the state has leaned in extremities with faith and hope. Without him the government and society would often be without a much-needed champion. Without him the Magna Charta of English liberty might not have been written before the sixteenth century. The Declaration of American Independence was penned by him. He constructed the Federal Constitution, and his pen and eloquence secured its adoption. Through the century he has defended, vindicated and preserved it. In peace and war he has been the conservator of public order and the implacable foe of lawlessness. Behind him the acquisitions of the rich find entrenchment against the unappeasible appetite of the aggrarian; and he guards the fold of the ewe lamb of the poor man and barricades the milch cow of the widow against the wolves of insatiate greed.
Nothing gives me more pain and concern, in times of trial of the system of constitutional government and menacing commotions, than to witness a strong lawyer play the role of the Pharisee in politics and the hypocrite in philanthropy. There has never been since Demosthenes arraigned Philip of Macedon and Cicero denounced Cataline, and Edmund Burke pursued Warren Hastings, anything of tyranny in government and corruption in public affairs so much dreaded as the eloquence and moral courage of a great lawyer, and there is no more pestiferous and dangerous demagogue to society than the smart, unscrupulous lawyer, whose endowments but enable him to achieve a wider ruin.
A fearless, incorruptible and able judiciary may be a bul. wark of public safety, but how helpless the judge sometimes is without the shield and lance of the chivalrous lawyer to protect and defend him. Like John the Baptist, as I saw it portrayed the other day in art, though his soul was the very temple of the true faith, with his hands bound behind him he was as a thread before the sword of the headsman; the judge, though his pen has written the law as he honestly finds it to be, must stand with silent tongue before the howling mob. The Imeri. can judiciary are clean and able and consecrated, and nething so surely tends to breed the spirit of lawlessness and anarchy