pressions might be well or ill founded, but they would none the less exist, and it is important to the successful administration of justice that it should be not only pure but unsuspected. Of course, if the suggestion were made in an insolent manner, the insolence would deserve censure, and the judge would rebuke, or, if you please, punish it. That is a very different thing from rebuking or punishing the suggestion. One would suppose that a conscientious judge would desire to be relieved of a disagreeable task. If one wished to try a cause, that would be proof that he ought not to try it.

Every lawyer of considerable practice must have had occasion to make the objection. Mr. James T. Brady objected to Judge Roosevelt sitting in the Herrick case, eighteen or twenty years ago. Messrs. Tracy, Smith, and Peckham objected to Judge Barnard's sitting in the Ramsey case, and, although he persisted, Judge Brady, on another ground I think, set aside his order. I objected to Judge Oakley's sitting in Fry a. Bennet, because he had tried it before, and that most upright and able judge, who was not slow to uphold the dignity of his court, took no offense. The case is reported in 3 Bosw. and 18 N. Y. R. I objected in the Court of Appeals, on two occasions, to a particular judge sitting in the Albany and Susquehanna case.

In the course of Judge Davis's address, from which I have quoted so largely, he alluded to me personally, intimating, in his pleasant way, that a long distance lay between me and danger, he being all the while as far from me as I from him. I have been now several months in my own country, state, and city, and although I am obliged to go abroad again for a few weeks, I expect to return about the first of October. While I am by no means fond of controversy, I do not decline it when pressed upon me, and if Judge Davis still thinks that he can punish me for contempt, I am ready to try conclusions with him whenever he sees fit.

NEW YORK, August 2, 1875.

AN EX-GOVERNOR'S THEORY OF A

LAWYER'S DUTY..

To the Editor of the Albany Law Journal:

SIR: The lecture with which, in the beginning of January, ex-Governor Dix favored the New York Association for the Advancement of Science and Art, contained a passage which, though it concerned lawyers, I do not think that any lawyer has yet taken notice of. In the absence of a better critic, and for the reasons hereafter mentioned, I am inclined to do it the service myself. In the course of a discursive comment on political and social evils, including the reëligibility of the Presi dent, the abuse of official trusts, the defective distribution of offices, the election of judges, free-love and divorce, with examples of public demoralization, followed by remarks on the public-school system, the duty of citizens, and general views of human life and government, the lecturer, apparently finding it impossible to keep Tweed out of mind, took occasion to say that "it is not at all creditable to us that he has used the money of which he robbed the city to subsidize the highest legal talent in the State to screen him from punishment."

While I would not have it supposed that I attach special importance to this language, or, for the matter of that, to the residue of the lecture, which, though respectable in its way, will hardly disappoint the most indolent lover of well-phrased commonplace, yet looking upon it as the logical result of a theory of legal ethics, lately propounded, which is at once false and unsafe, I am disposed, before it is forgotten, to take the language I have copied as a text for a sort of lay homily ap propriate to the times. This language is both a symptom and a sample: a symptom of that morbid condition of mind which makes it jump at conclusions without stopping to reason; and a

sample of the thoughtless fault-finding and inquisitorial intermeddling with other people's affairs, quite too common in these days.

Though I happen to be one of the persons whom the lecturer would embrace within the scope of his censure, I can hardly refrain from observing that he will find us to be a goodly number, however little of good he may think to find in any of us separately considered. From first to last, some twelve to fifteen gentlemen have been guilty of the enormity of taking retainers for Tweed. Perhaps the Governor would like to know their names.* Some of them venture to hold up their heads in the world, and might not feel unduly elated if they should chance to find themselves alongside of the ex-Governor himself.

Four distinct propositions are wrapped up in the one passage that I have quoted: 1. That Tweed robbed the city; 2. That he subsidized counsel, or, if that means the same thing as retaining counsel, that they were retained, not to defend him from the charge of robbery, not to protect him in such rights as the law professes to guarantee, but "to screen him from punishment"; 3. That he paid them out of the money of which he robbed the city; and, 4. creditable to the people of New York. stands or falls with the other three. their order.

That all this was dis-
The fourth proposition
Let us take these in

"Tweed robbed the city." How does the Governor know that? It was the question to be tried, or rather one of the questions. Counsel were wanted for that very purpose. To sentence first, and try afterwards, is not the justice promised in America, but the justice of Rhadamanthus practiced below. Pass, then, to the next proposition, and, in doing so, cast a sideglance at the happy use of the word "subsidize," in place of those common ones, engage or retain. This, however, is a matter of taste, not of law or of morals; and if the Governor, whose manners certainly should be faultless, prefers to call a

* John E. Burrill, John Graham, William Fullerton, Edwin W. Stoughton, William O. Bartlett, John H. Reynolds, John Ganson, George F. Comstock, Edward R. Bacon, Elihu Root, Willard Bartlett, William Edelston, Dudley Field, and the writer of this letter.

lawyer's fee a subsidy, nobody need quarrel with him for it. An over-curious person might ask how many such subsidies the Governor had paid in his lifetime.

But how is he sure that Tweed's counsel have received fees at all? If a fault-finder, knowing no better, were to complain that citizens of New York were using the money of the people to subsidize the highest legal talent in the State, to invent strange remedies, procure retrospective laws, and belabor the Judges, not for the sake of recovering spoil, by the readiest and quickest methods, but to break down a former enemy and rival, to gratify spite, or indulge a whim, or to advance the interests of a party or a partisan, how would he be answered? With great vehemence he would be told that the counsel in charge of the prosecution against Tweed, or some of them, serve without fees. Is it incredible that the defendant's counsel are as indifferent to money as the counsel of the plaintiffs? Is it not within the limits of at least a remote possibility that they who see, or think they see, an attempt, under cover of an excitement, to strain or pervert the law, may have volunteered in the interest of justice to defend him, as they would defend him if a mob were hurrying him to the lamp-post? It may indeed be true that his counsel are paid, or it may be true that they are not paid, but whether paid or not is none of the lecturer's business.

Supposing them paid, however, what were they paid for? "To screen him from punishment," says the Governor. That I deny. When they received their retainers, what obligation did they assume, and what did they undertake to do? They undertook to discuss for him the charge against their client, and the evidence in support of it, and to present to the Court and jury all that could lawfully be said in his behalf, in respect to the character of the charge, the extent to which it was proven, and the legal consequences following the proof. This they undertook to do, this the law required them to do, and less than this no system of law could require, without making the processes of the law solemn jests, and the professors of the law ridiculous jesters.

If the charge against Tweed was not well founded in law, it was the duty of his counsel to say so to the Courts; if the

evidence offered to sustain the charge did not sustain it, then it was equally their duty to say that, and, if the charge or any part of it was proved, and the punishment demanded by the prosecution exceeded the measure of the law, it was furthermore their duty to make that appear. Take the conviction and the sentence actually imposed in one case as they appeared upon the record. He was sentenced to twelve years' imprisonment, when the law allowed only an imprisonment of one year. Was it, or was it not, the duty of counsel to procure his release from the excessive sentence of eleven years? Is it possible that any man of sense can harbor a doubt upon this question? If now and then an ignorant editor has or expresses a doubt, the Governor has studied law and read history, and he knows better. He can not mean that it was right to keep Tweed eleven years in jail, contrary to law; for that would suppose him weak and cruel. If he does not mean that, he can not mean that it was wrong to get Tweed out of an unjust imprisonment. What, then, does he mean, what can he mean, when he speaks of screening from punishment?

What, indeed, can be the Governor's theory of forensic morals? What, in his view, is a lawyer to do, whom an accused person seeks to retain for his defense? Is he himself first to try the defendant; or if, not that, and he accepts the retainer, is he to assert all his client's rights or only some of them—and if some only, which? Is he expected to be, or should he be, wiser or better than the law itself? The truth is, that there can be conceived no consistent theory of a government of law, which does not include an independent bar, pledged to the assistance of every man who requires it for the maintenance of all the rights which the law promises him. The lawyer is neither lawgiver nor judge. If the law is wrong, let the former change it; if the judgment is wrong, let it be reviewed on appeal; or at the very least let the Judge hear all that can be said on either side of the case before deciding it.

The Governor does not complain of any malpractice by Tweed's lawyers. He complains of their appearing for him at all. If they had suppressed testimony, fabricated evidence, misquoted law, or otherwise misled the Judge, then he would have had something to complain of.