I

ARTICLE the THIRD.

Of the Lawyer's morals.

DID not think proper to conclude this little treatife on the eloquence of the Bar, without faying fomething of the lawyer's morals, and the chief qualifications requifite to his profeffion. Youth will find this fubject treated in all the extent it deferves, in the twelfth book of Quintilian's inftitutions, which is the moft elaborate and most useful part of his work.

I. Probity.

Cicero and Quintilian lay it down as an indifputable principle in feveral parts of their works, that eloquence fhould not be feparated from probity; that the talent of speaking well fuppofes and requires that of living well; and that, to be an orator, a man muft be virtuous, agreeable to Cato's definition: Orator vir bonus dicendi peritus. m Without this, fays Quintilian, eloquence, which is the most beautiful gift that nature can bestow upon man, and by which fhe has diftinguished him in a particular manner from other living creatures, would prove a fatal prefent to him, and be fo far from doing him any fervice, that she would rather treat him as a ftep-mother, and like an enemy rather than a mother, in imparting a talent to him for no other end, but to opprefs innocence, and fight against truth, like the putting a fword into the hands of a madman. It would be better, adds he, that

m Si vis illa dicendi malitiam inftruxerit, nihil fit publicis privatifque rebus perniciofius eloquentia... Rerum ipfa natura, in co quod præcipue indulfiffe homini videtur, quoque nos à cæteris animalibus feparafe, non parens fed noTerca fuerit, fi facultatem dicendi.

fociam fcelerum, adverfam innocentiæ, hoftem veritatis invenit. Mutos enim nafci, & egere omni ratione fatius fuiffet, quam Providentiæ munera in mutuam perniciem convertere. Quint. 1. 12.

C. I..

a man

a man should be deftitute of speech, and even of reafon, than to employ them to fuch pernicious ends.

The flightest attention will difcover how neceffary honesty is to a pleader. His whole defign is to perfuade; and the fureft way of effecting it is to prepoffefs the judge in his favour, fo that he may look upon him as a man of veracity and candour, full of honour and fincerity; who may be intirely trufted; is a mortal enemy to a lye, and incapable of tricks and cunning. In his pleadings, he should appear not only with the zeal of an advocate, but with the authority of a witnefs. The reputation he has acquired of being an honeft man will give great weight to his arguments: whereas, when an orator is difesteemed, or even fufpected by the judges, it is an unhappy omen to the cause.

II. Difintereftedness.

The question treated by Quintilian in the laft book of his rhetoric, whether lawyers ought to plead without fees or gratuity, does not fquare with the manners or customs of our days; but the principles he there lays down fuit all ages and times.

P He begins with declaring, that it would be infinitely more noble and becoming fo honourable a profeffion not to fell their fervice, nor debafe the merit of fo great a benefit, fince most things may feem contemptible, when a price is fet upon them.

9 He afterwards owns, that, if a lawyer has not eftate honeftiffimum, ac liberalibus dif. ciplinis & illo quem exigimus animo digniffimum, non vendere ope ram, nec elevare tanti beneficii auctoritatem ? cum pleraque hoc ipfo poffint videri vilia, quod pretium habent.

n Plurimum ad omnia momenti eft in hoc pofitum, fi vir bonus creditur. Sic enim continget, ut non ftudium advocati videatur afferre, fed pene teftis fidem. Quint. 1. 4. c. I.

Sic proderit plurimum caufis, quibus ex fua bonitate faciet fidem. Nam qui, dum dicit, malus videtur, utique male dicit. 1. 6. c. 3. Videtur talis advocatus male caufæ argumentum. 1. xii. c. I.

o Quint. 1. 12. c. 7.

p Quis ignorat quia id longe fit

9 At fi res familiaris amplius aliquid ad ufus neceffarios exiget, fecundum omnes fapientum leges patietur fibi gratiam referri. Neque enim video quæ juftior acquirendi ratio, quam ex honestisfimo labore, & ab iis de quibus

eftate enough of his own, he then is allowed, by the laws of all wife-legiflators, to accept fome gratuity from the party he pleads for; fince no acquifition can be more juft than that which proceeds from fuch honeft labour, and is given by those for whom we have performed fuch important fervices; and who would certainly be very unworthy, if they failed to acknowledge them, Befides, as the time which a lawyer bestows upon other people's affairs, prevents him from thinking of his own; it is not only juft, but necessary he fhould not lofe by his profeffion.

But Quintilian would have the lawyer, even in this cafe, keep within very narrow bounds; and be very watchful in obferving the perfon from whom he receives any gratuity, together with the quantity, and time during which he receives it. By which he seems to infinuate, that the poor fhould be ferved gratis, and that he fhould take but moderately even from the rich in fine, that the lawyer fhould forbear receiving any gratuity, after he has acquired a reasonable fortune.

• He must never look upon what his clients offer him, as though it were a payment or a falary, but as a mark of friendship and acknowledgement; well knowing he does infinitely more for them than they do for him; and he must make this use of it, because a good office of that kind ought neither to be sold nor loft.

optime meruerint, quique, fi nihil invicem præftant, indigni fuerint defenfione. Quod quidem non juftum modo, fed neceffarium etiam eft, cum hæc ipfa opera, tempufque omne alienis negotiis datum, facultatem aliter acquirendi recidant.

r Sed tum quoque tenendus eft modus ac plurimum refert & à quo accipiat, & quantum, & quo

ufque.... Nec quifquam, qui fufficientia fibi (modica autem hæc funt) poffidebit, hunc quæstum fine crimine fordidum fecerit.

Nihil ergo acquirere volet orator ultra quàm fatis erit: nec pauper quidem tanquam mercedem accipiet; fed mutua benevolentia utetur, cum fciat fe tanto plus præftitiffe; quia nec venire hoo beneficium oportet, nec perire.

As

As to the custom of making agreements withclients, and taxing them in proportion to the nature of the caufe, and the rifque they run; it is, fays Quintilian, an abominable kind of traffic, fitter for a pirate than an orator, and which even those, who have but a flender love for virtue, will avoid.

Far therefore from the bar, and fo glorious a profeffion, fays he in another place, be thofe mean and mercenary fouls who make a trade of eloquence, and think of nothing but fordid gain. The precepts, fays he, which I give concerning this art, do not. fuit any person who would be capable of computing how much he fhall gain by his labours and ftudy.

If a heathen has fuch noble sentiments and expreffions, how much more glorious and difinterefted fhould the views of a lawyer be according to the principles of Chriftianity? And, indeed, we fee this Spirit prevail among the Lawyers of France. They are fo delicate in this point, as to debar themselves for bringing any actions for payment of their fees; and this they carry fo far, that they would disown any member of their profeffion, who fhould commence any fuit, or retain his client's papers, in order to oblige him to make some acknowledgment for the affiftance he had given him.

III. Delicacy in the Choice of Causes.

"As foon as we fuppofe the orator a worthy man, it is plain he can never undertake a cause he knows to be unjuft. Juftice and truth only have a right to the

t Pacifcendi quidam ille pirati cus mos, & imponentium periculis pretia procul abominanda negotiatio, etiam mediocriter improbis aberit.

Neque enim nobis operis amor eft nec, quia fit honefta atque pulcherrima rerum eloquentia, petitur ipfa, fed ad vilem ufum & fordidum lucrum accingimur. Ne velim quidem lectorem dari

...

mihi quid ftudia referant computaturum. Quint, i. 1. c. 20.

u Non convenit ei quem oratorem effe volumus, injufta tueri fcientem...... Neque defendet omnes orator: idemque portum il. lum eloquentiæ fuæ falutarem, non etiam piratis patefaciet, duceturque in advocationem maxime caufa Quint. 1. 12. c. 7.

affiftance

affiftance of his voice. Guilt has no title to it, what fplendor or credit foever it may appear to have. His eloquence is a fanctuary for virtue only, and a safe <haven for all, except pirates.

w Before therefore a man difcharges the function of a lawyer, let him perform that of a judge; let him raife a kind of domeftic tribunal in his closet, and there carefully, and without prejudice, weigh and examine the arguments of his clients, and pronounce a fevere judgment against them, in cafe it be neceffary.

* If even, in the courfe of the affair, he happens, by a ftricter inquiry into the title, to difcover, that the cause he undertook, fuppofing it honeft, is unjuft; he then muft give his client notice of it, and not abufe him any longer with vain hopes; and advife him not to profecute a fuit which would prove very fatal to him, even though he should gain it. If he fubmits to his advice, he will do him great fervice; if he defpifes it, he is unworthy of any farther affiftance from his lawyer.

IV. Prudence and moderation in pleading.

Thefe virtues are chiefly neceffary on account of raillery. There are certain polite and becoming rules in this point, which every orator and every gentleman should obferve inviolably. It is not neceffary to remark, that it y would be inhuman to infult people in difgrace, when their very condition intitles them to compaffion, and who befides may be unfortunate, without being criminal. In general, our raillery

w Sic caufam perfcrutatus, propofitis ante oculos omnibus quæ profint noceantve, perfonam deinde induat judicis, fingatque apud fe agi caufam. Ib. c. 8.

judices fumus, beneficium eft, ut non failamus vana fpe litigantem. Neque eft dignus opera patroni qui non utitur confilio. Ib. c. 7.

y Adverfus miferos inhumanus eft jocus.

Z * Lædere nunquam velimus, longeque abfit propofitum illud, Potius amicum quam dictum perdidi. Quint. 1. 6. c. 4.

* Neque vero pudor obftet, quo minus fufceptum, cum melior videretur, litem, cognita inter difceptandum iniquitate, dimittat, cum prius litigatori dixerit verum. Nam & in hoc maximum, fi æqui *I am of opinion, that it ought to be read fo, inflead of ludere, as it is in all the editions.

fhould