Morning Session.

The President:

Friday, July 7, 1899, 9:30 O'clock a. m. Gentlemen of the State Bar Association, I have

the pleasure of introducing to you this morning the Hon. William Wirt Howe, of New Orleans, La., who will deliver the annual address on the subject of "Legal Ethics."

LEGAL ETHICS.

Annual Address Before the Indiana State Bar Association.

Delivered by

HON. WILLIAM WIRT HOWE,

Of the New Orleans Bar, at Indianapolis, July 7, 1899.

I esteem it a great honor to have been invited to deliver an address on this interesting occasion, and before this distinguished Association, and in complying with the invitation I desire to say some quite elementary things concerning legal ethics.

We have not met together as metaphysicians or psychologists, and need not dwell at length on the philosophy of ethics in general. Fortunately, perhaps, we are not called on to adjudicate upon the conflicting views of abstract thinkers on this subject.

Whether moral ideas are secreted by the brain as the liver secretes bile; whether, again, the utilitarian theories of Hume and Paley are to prevail; whether we are to follow Reid, with his intentional and moral faculty, or Kant, with his categorical imperative, are questions that may all be relegated to another plane and another place.

We might content ourselves with the statement of Prof. Seth, of Edinburgh (Philosophical Review, November, 1898), that "the business of ethics is to organize into a coherent system our ordinary moral judgments;" or we might hold with Prof. Paulsen, of Berlin, that ethics undertakes to answer the question: "What forms of social life and what modes of individual conduct are favorable or unfavorable to the perfection of human nature?" These definitions may do for to-day, and we may agree with the former of these experts that we may base our theory of morals

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upon the facts of human nature, and may prefer to be a little incomplete in our theory "rather than sacrifice to the demands of systematic completeness a single element of moral experience."

We need not decide what may be the true data or real basis of ethics in general, or of legal ethics in particular. We may assume that there is such a subject of consideration and briefly consider it.

But some may say, "What is the use of telling us about professional ethics? We know the difference between right and wrong, and do not require any specific suggestions on this subject."

But such is not the verdict of the most intelligent men on these questions. A very bright poet has said that

"Evil is wrought

By want of thought

As well as want of heart."

Thereby stating a great truth, that right doing is very largely a result of careful attention and reflection as to what right doing may be under the special circumstances of a given case. When we

are admonished to cease to do evil and learn to do well it is necessarily implied that there is such a thing as "learning" in the region of ethics.

One of the best definitions of intellect is that given by Prof. Royce, of Harvard, when he says that "intellect is the faculty of profiting by experience," and not only by the experience of our own lives, but of the lives of others. We thus start with a capital of past experience, to which we may add more or less, according to our ability, and in this way "learning" to do well becomes more and more a practicable thing.

And coming now to some logical division of what must needs be a very brief discussion of professional ethics, I would like to speak first of what might be called the intellectual conscience in such matters.

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For it may be affirmed that there is an intellectual.conscience in the conduct of a profession in a very high sense. Matthew Arnold, in one of his acute essays on criticism, quotes a passage from Sainte-Beuve, the distinguished French writer, on this point, to the effect that all intellectual work should not only have the quality that is absolutely necessary to the expression of an idea, but that such expression should be in the best and highest form. And Mr. Arnold, commenting on M. Sainte-Beuve, says what is quite true in regard to all professional exertion:

"A Frenchman has in these matters what one may call an intellectual conscience; he has an active belief that there is a right and wrong in them; that is, in the methods of doing things from an intellectual point of view, and that he is bound to honor and obey the right; that he is disgraced by cleaving to the wrong."

In other words, this intellectual conscience enjoins on us not only to do what as professional men we are bound to do, but also to do it in the best manner.

And in this general statement there is involved a great deal that is important in the conduct of our professional life. Confining ourselves for the moment wholly to the question of this intellectual conscience as it concerns the legal profession, we may affirm that such a conscience enjoins upon us not only to do the work that our duty requires, but to do it in the most "artistic" manner. And when we have used this word "artistic" we have used an epithet of wide and deep significance, reminding us of the infinite pains which true artists take when they aspire to any worthy achievement. A friend of mine who enjoyed the acquaintance of Thalberg, the eminent pianist, hearing him play a very beautiful composition of his own, said:

"Mr. Thalberg, why do you not play that piece in your concerts ?"

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"Ah," he replied, "not yet, I have only been practicing it for about a year and a half."

Now, we may think what we please about our friends, the artists, and the place, whether great or small, that they fill in human life, but we may at least learn something from that quality they exhibit which is sometimes called.gerius, but which has been described as "a capacity for taking infaite pains." If such diligence is needed in music and painting and such like ornamental things, is it not as much needed in a profession that concerns the fortunes and perhaps the liberty or even the life of a client? May we not fairly say that from the beginning to the end of a law suit it is the duty of all concerned to obey the dictates of the intellectual conscience to the end, that every effort may realize itself in artistic expression of the best, and therefore of the most effective kind?

Yet, what do we see when we flounder through the reports which roll in upon us as the waves of the Atlantic rolled in upon Mrs. Partington and her feeble mop?

Pleadings drawn in such a careless way that after they consumed a great amount of valuable time of court and counsel they barely escape utter condemnation; objections to testimony made without any definite or useful object; charges requested that violate almost every well-established rule; writs of error, with just blunders enough to make them the subject of tedious discussion, but not quite enough to merit a positive dismissal; assignments of error by the score without any reference to logical division or compression; briefs that are by no means edifying; to say nothing of oral arguments that are a weariness to the flesh.

But that is not all. With great reserve and deference we might go a step further in our study of those voluminous works of the West Publishing Co. and others, in the way of reports, and ask if the opinions of our distinguished friends, the judges, are al