An Essay on Professional Ethics | Page 5

Such laws are
frequently urged by men, having causes pending, who dare not boldly
ask that a law should be made for their particular case, but who do not
hesitate to impose upon the legislature by plausible arguments the
adoption of some general rule, which 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