An Essay on Professional Ethics | Page 5

by a retrospective construction, will have the same operation. It is a most monstrous practice, which lawyers are bound by the true spirit of their oath of office, and by a comprehensive view of their duty to the Constitution and laws, which they bear so large a part as well in making as administering, to discountenance and prevent. It is to be feared, that sometimes it is the counsel of the party who recommends and carefully frames the bill, which, when enacted into a law, is legislatively to decide the cause. It is time that a resort to such a measure should be regarded in public estimation as a flagrant case of professional infidelity and misconduct.
This brief sketch of the true province of legislation is enough to evince its vast importance. How great is the influence of the lawyers as a class upon legislation! Let any man look upon all that has been done in this department, and trace it to its sources. He will acknowledge that legislation, good or bad, springs from the Bar. There is in this country no class of lawyers confined to the mere business of the profession--no mere attorneys--no mere special pleaders--no mere solicitors in Chancery--no mere conveyancers. However more accurate and profound may be the learning of men, whose studies are thus limited to one particular branch, it is not to be regretted either on account of its influence on the science or the profession. The American lawyer, considering the compass of his varied duties, and the probable call which will be made on him especially to enter the halls of legislation, must be a Jurist. From the ranks of the Bar, more frequently than from any other profession, are men called to fill the highest public stations in the service of the country, at home and abroad. The American lawyer must thus extend his researches into all parts of the science, which has for its object human government and law: he must study it in its grand outlines as well as in the filling up of details. He is as frequently called upon to inquire what the law ought to be as what it is. While a broad and marked line separates, and always ought to separate the departments of Legislation and Jurisprudence, it is a benefit to both that the same class of men should be engaged in both. Practice will thus be liberalized by theory, and theory restrained and corrected by practice. The mere abstractionist or doctrinaire would aim at the formation of a code of great simplicity: the practitioner sees in it the parent of uncertainty and injustice. Legal propositions cannot be framed with the certainty of mathematical theories. The most carefully studied language still leaves room for interpretation and construction. Time itself, which works such mighty changes in all things, produces a state of circumstances not in the mind of the lawgiver. The existing system, it may be, is an unwieldy, inconvenient structure, heavy and grotesque from the mixed character of its architecture outwardly, inwardly its space too much occupied and its inmates embarrassed by passages and circuities. The abstractionist would at once demolish it, and replace it by a light, commodious and airy dwelling, more symmetrical and chaste in its appearance, better fitted for the comfort and usefulness of its inhabitants. The practitioner, who has become familiar with it, who observes and admires that silent legislation of the people, which shows itself not on the pages of the statute book, and receives its recognition in courts of justice only after it has ceased to need even that to give it form and vitality, and who understands, therefore, how, with little inconvenience, it is made to accommodate itself to every change of condition, sits down to a careful calculation of the cost and risk of such wholesale change. History and practical experience, alike, suggest to him, that the structure is a castle as well as a dwelling, a place for security as well as comfort; that its foundations have been laid deeply on the solid rock--its masonry more firmly knit together by the time it has endured. Yet he will not deny that what can be done consistently with security ought to be done. It is worse than in vain to oppose all amendment. It will break down every artificial barrier that may be reared against it, if it be not quietly and wisely directed in those channels which it seeks at the least expense to security and stability. Surely it is not conceding too much to this spirit to admit, that laws should be composed in accurate but perspicuous language, without redundancy of words or involution of sentences; that the policy of public measures should not be wrapt up in the folds of State mystery; and that all