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bonds between the two branches of the profession, and the de. pendence of one upon the other, it may be safely stated, as a general rule, that whatever aids one in their chosen work, is of aid and benefit to the other. Manifestly, in the compass of one brief address upon this subject, but a very few of the many obligations devolving upon the legal fraternity can be mentioned, and therefore only those which are regarded as of the most importance will be noticed.
Perhaps it may aid in impressing upon the members of the association the important position which the bar sustains to the people, and how they are regarded generally, if a few historical facts relating to the profession and its growth are mentioned. By reference to the earliest records of judicial investigations, it will be found that the litigants were brought into court in person, and required to give their own account of the controversy, and the judges, with no other assistance than the statements of the respective parties to the action, pronounced judgment, gauged, in a great measure, no doubt, by the plausibility of these narratives. This method placed the ignorant and simple at the mercy of the cunning and crafty, and by this means justice was often perverted, and wrong cloaked under the form of law. It is interesting to note, that as the barbarism of the Dark Ages began to yield to the advance of civilization, a class sprang into existence who made it their business to expound the law and assist others in the defense of their legal rights, and as time rolled on, the necessity for those learned in the law became one of the requisites of civilization and legal order; and the exist. ence of this class has always been the marked characteristic of every nation, ancient or modern, which laid claim to any great degree of enlightenment, or the maintenance of a government to any extent beneficial; and even in this day it will be found, from a study of the nations of the world, that the more enlightened the government, the greater the power and influence of the bar within its jurisdiction.
Originally lawyers were held in such high estimation, and their services regarded of that character, that they were expected to be, and were, in fact, performed without pecuniary reward-a notion which would not find much favor with the profession of to-day. Despots feared the bar, and in the land which gave birth to the common law, the first schools for the reception of law students located near the courts of Westminster were regarded with such disfavor that one of the old English monarchs
suppressed them, which caused their subsequent location beyond the jurisdiction of these courts, and resulted in the establishment of Lincoln's Inn and Gray's Inn, and other old inns of court, so familiar to those interested in ancient legal lore. An old favorite method adopted by despotic governments to get rid of an obnoxious individual, was to charge him with a criminal offense and, in order to secure a conviction, and thus accomplish the design intended, those charged with felonies were not accorded the privilege of a full defense by counsel, but were only permitted to be heard through this agency upon such questions of law as might arise upon the trial, it being the duty of the judge alone to call the attention of the jury to such facts as were favorable to the defense, the idea, apparently, being that the accused, if innocent, would in this manner be amply protected. The injustice of such procedure and limitations was so apparent that gradually the privilege of defense was extended until those charged with crime of whatever degree were accorded the full right of defense through counsel, and in the United States this privilege is regarded of that supreme importance that it is made a constitutional right, and in many, if not all, the states provision is made for the appointment of counsel by the court, for the defense of those charged with crime, who are financially unable to employ an attorney.
From this recognition of the bar, the growth of its power and the demands of the people to be guaranteed the privilege of having their rights championed by those familiar with the law, it will be learned that lawyers are regarded as a class whose special duty it is to protect the rights of all, when employed for that purpose, according to the fixed rules of law; and the profession should labor earnestly to elevate the standard of integrity of its members, if this high regard and position is to be maintained in the future.
Through the medium of the courts, the rights of individuals, when called in question, must be settled and determined, and the first duty of the incumbents of the bench is to give careful thought and consideration to every case brought to their attention. Courts are the equalizing medium between the government and the people, as well as the channel through which the weak may be protected from the strong, and the honest from the dishonest and designing members of society. A comparison of these respective duties makes it at once apparent that the relationship between these two branches of the profession is necessarily close, and should be harmonious; that each must depend more or less upon the other, for what would a bench be without a bar? What untold labor would be entailed on the courts if, in the presentation and trial of causes, they were not , aided by those learned in the law, who have studied their cases, considered the rules of law applicable, and what are the pertinent facts; and the bar, unless able to have their causes considered or trials directed by those who have made the study of law a profession, would be met by many embarrassing situations in the trial.of causes in which engaged.
The lawyer is charged with the duty, in all cases and in all courts, of preparing and presenting the cause of his client in such manner that the questions which he desires to have settled, and the rights involved, may be readily comprehended. As a general rule, it will be found that almost every case, no matter how complicated it may seem, depends for determination upon the application of a very few legal principles. The great difficulty is to ascertain them; hence, the necessity of counsel thoroughly understanding the cause in which engaged, for, unless they comprehend their case, with which they are supposed to be familiar, and to have studied, it can hardly be expected that the judge, who hears of it for the first time when called, will be able to do so. In the end courts must settle controverted questions
. and render decisions declaratory of the rights involved, but the judge of to-day may have been the lawyer of yesterday; there is no special magic in the change; he is not at once transformed into a better lawyer than before; he must still study, sift and analyze, in order to reach a correct conclusion. There is no more trite saying than "A good bar makes a good bench.” The work of the latter in a great measure is but reflection of the learning and industry of the other, for it is upon the research and logic of the bar from which the bench must draw in formulating opinions and rendering decisions. The decision of a cause must be made by the courts, but in a measure, at least, whether right or wrong, a share of the responsibility for the result must rest with the bar. The law is growing; from a comparison of the legal publications of to-day with those of a generation ago, it is growing with alarming rapidity, but it is not in that sense that this expression is used, for, more correctly speaking, its true growth is occasioned by the development of principles which have lain dormant, because the conditions heretofore existing have not called for their application. Especially is this
true of a commonwealth like Colorado, where the law is not yet crystallized, and in which, by reason of natural conditions and the development of new resources, questions have arisen, and will continue to arise, for the settlement of which no precedents can be resorted to, for aid or guidance, and the work of the profession is, therefore, more laborious in this state than in those whose resources and character are similar to others still older, and whose decisions can be safely followed.
The judge upon the bench is vested with great powers, which must be wisely exercised; otherwise, he will descend to the level of a petty tyrant, and his usefulness is impaired. There is no more sorry spectacle than a domineering judge, when his conduct in this respect is of that character that it results in embarrassing counsel, and creating that state of mind on the part of both which prevents the consideration or presentation of a cause in a proper manner, and will likely result in the commission of mistakes by each.
Some incumbents of the bench conduct themselves in such a manner towards counsel, that their seeming desire is to inspire awe and fear on the part of the latter. The judge so constituted lacks the necessary qualifications for the position, and fails to appreciate the duties of the place which he is attempting to fill. What the bench must command from the bar is respect, not fear; and bear in mind that a proper degree of regard does not depend upon legal knowledge only. From a very old essay on the subject of “Judicature,” the following extract is made, which fairly defines the duties of the bench:
“An over-speaking judge is no well tuned cymbal. It is no grace to a judge, first to find that which he might have heard in due time from the bar; or to how quickness of conceit in cutting off evidence or counsel too short; or to prevent information by questions, though pertinent. The parts of a judge in hearing are four: To direct the evidence; to moderate length, repetition or impertinency of speech; to recapitulate, select, and col. late the material points of that which hath been said; and to give the rule or sentence. Whatsoever is above these is too much; and proceedeth either of glory and willingness to speak, or of impatience to hear, or of shortness of memory, or of want of a stayed and equal attention."
An equally unpleasant individual is the arbitrary and domineering lawyer at the bar. True, he can not do as much harm as his prototype on the bench, but he is capable of much mischief, especially in the direction of injuring the disposition of an otherwise even-tempered judge. Fortunately, however, he is not often encountered in the courts, for usually it is only lawyers of ability who are engaged in the trial of causes; and good lawyers do not indulge in such practices.
The duty of counsel, when engaged in a cause, is a much mooted question. Lord Brougham is reported as having said that "An advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client.” This, however, is too broad, because, if such a doctrine were accepted as the standard of the obligation of counsel to his client, it would result in converting the bar into an instrument of oppression, when the necessities of a bad case required it. Upon this subject that eminent jurist, Judge Cooley, has left us his views in the following:
"No client has any right to require that any counsel shall, in his interest, pervert the law, or give a false color to the facts, or abuse witnesses who are, apparently, fair, or inflict wanton injury on any one. Being called to the bar as an aid to the court in administering the law, the first duty of counsel is to assist in seeing justice done, and his services to his client must keep this primary duty in view.
“That sentiment, however, which is often expressed, that counsel have no moral right to render legal assistance to those whom they may know or believe to be guilty of crimes, with which they are charged, has no just or reasonable foundation whatever; for, in the first place, the counsel is not made by the law the judge of his client's guilt, and if he were, he might misjudge upon some preliminary statement, and leave an innocent party to be condemned without a defense. But in the second place, it is a duty which every one connected with the administration of the law owes to the law, to see that all, even those most guilty, are only condemned according to the law, for only by that course can order be preserved and the law made an effectual protection to the innocent. The sentiment referred to, pushed to its legitimate conclusion, would justify summary execution without trial, in every case where guilt appeared certain; for a trial without defense, especially if defense be refused be. cause of supposed guilt, has little or no significance or value as a judicial investigation. It is, therefore, a part of the obligation the counsel assumes, not less to the law than to his client, to point out and insist upon all the defects, whether of law or of