Rubin, Samuel

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Influence of the Bar in the Advance of Civilization, The

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Journal of Criminal Law and CriminologyVolume 20Issue 3 November Article 11Fall 1929Influence of the Bar in the Advance of Civilization,TheSamuel RubinFollow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclcPart of the Criminal Law Commons, Criminology Commons, and the Criminology and CriminalJustice CommonsThis Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted forinclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons.Recommended CitationSamuel Rubin, Influence of the Bar in the Advance of Civilization, The, 20 Am. Inst. Crim. L. & Criminology 448 (1929-1930)"THE INFLUENCE OF THE BAR IN THEADVANCE OF CIVILIZATION"SAMUEL RUBIN1In all the outstanding revolutions which have destroyed despotismand arbitrary power lawyers have been in the forefront of leadership.History confirms the statement that wherever people have rebelledagainst tyranny and arbitrary power, the lawyer has stood out as achampion of the rights of the oppressed and downtrodden. In theUnited States no other profession exercises an influence in the affairsof the American people equal to that exercised by the members ofthe Bar. This is not only true in the nation as a whole, but is equallytrue of the individual states.The government of the United States is, and always has been,a lawyers' government. Our government is composed of three branches,the executive, the legislative, and the judicial. The judicial is, ofcourse, given over exclusively to lawyers. All our presidents, withthe exception of five or six, had at some period of their lives beeneither practicing lawyers, or members of the bar. Those who werenot lawyers, with the exception of Harding, were for the most part,swept into office as a result of the glories of war. Of the fiftySecretaries of State, all but two had been lawyers. About four-fifthsof our cabinet officers, and an overwhelming majority of both housesof Congress have always been lawyers. The State-governments arerun by lawyers in about the same proportion as the Federal govern-ment. Lawyers draw every statute and construe same. They ad-minister every rule of law made by the judges, who previously hadbeen practicing lawyers. Under the circumstances who can doubttheir great influence and obligations. It has been said, and it is un-doubtedly true, that this is a lawyers' country, for without the lawyersat the helm this country could not exist.It was a lawyer, Gambetta, who proclaimed the present FrenchRepublic. The English constitution, Bill of Rights, Petition of Rightsand Habeas Corpus Acts must, of course, necessarily have beendrawn by lawyers. It was a lawyer, Richard Henry Lee, who intro-duced ifnto the Continental Congress the famous resolutions, "Thatthe United States are, and of right ought to be, free and independent3Member of the Bar, Baltimore, Md.INFLUENCE OF THE BARstates," and it was Thomas Jefferson, another lawyer, who as chair-man of the committe drew, the "Declaration of Independence." Alex-ander Hamilton gave this country a financial system that created ad-miration everywhere, both here and abroad, while at the same timehe was so poor he scarcely had a place to lay his head. Apropos ofthis, the story is told that Tallyrand, the great French statesman, waswalking on the streets of New York one night, and chanced to glanceup at a building. He saw Hamilton's shadow on the office curtain,indicating that the lawyer was busy at work. Tallyrand the nextday remarked, "Last night I saw one of the wonders of the world,a man laboring at midnight for the support of his family, who hadthe fortune of a nation."Where in history can we find a more pronounced patriot thanJohn Jay, the first Chief Justice of the United States Supreme Court,who framed and negotiated the first treaty in which the principlesof the settlement by arbitration of disputes between nations was firstrecognized. It was a lawyer, Abraham Lincoln, who wrote and madeeffective the Emancipation Proclamation. Of the fifty-six signersof the Declaration of Independence twenty-five were lawyers. Ofthe fifty-five members composing the Constitutional Convention thirty-four were lawyers. Jefferson, Madison, Adams, Randolph, Webster,Clay, Calhoun, Thomas H. Benton, Seward, Clinton, Summers andJames G. Blaine were all lawyers. John Marshall and Joseph Storywere lawyers.Almost all the great leaders in the early days of American his-tory were lawyers. Among the outstanding figures were SamuelAdams, who was by some called "The John the Baptist of the Ameri-can Revolution." Fiske speaks of him as "being second only toWashington." For more than twenty years before the revolution,and over fifty years in its entirety, he preached the gospel of freedomwithout pecuniary reward. James Otis, of Massachusetts, threw allthe energies of his great mind and soul into the struggle for inde-pendence. "Otis" said John Adams, "was a flame of fire." FromVirginia came another lawyer-Patrick Henry-with "give me libertyor give me death."Nearly every effort of social and religious liberty which has takenplace has been consummated through the assistance and leadershipof lawyers, and to the legal profession the world and the race owemore for the establishment of human rights than to all other classescombined. Lawyers have always been on the side of the great massesSAMUEL RUBINof the people whenever arbitrary power attempted to deprive themof their inalienable rights of life, liberty and happiness.Speaking for England, Mr. Gladstone, when Chancellor of theExchequer, is quoted as saying: "I have always felt that the Barwas inseparable from our national life, and the security of our na-tional institutions. But never so long as I looked at England alone,did I understand the full extent of its value. Some years ago, itwas my lot to be a witness of cruel oppression in a country in thesouth of Europe. There the executive power did not merely break thelaw, but deliberately supplanted it and set it aside, and establishedin its stead a system of pure arbitrary will. To my astonishment Ifound that the audacity of the tyranny which had put down chambersand municipalities, and which had extinguished the press, had not beenable to do one thing-to silence the bar. I found in the courts ofjustice, under the bayonets of soldiers-for they bristled with bayonets-in the teeth of power, in contempt of corruption, and in defianceof violence and arbitrary rule, lawyers rising in their places and de-fending the cause of the accused with the freedom and fearlessnesswhich could not have been surpassed in free England."This is a glowing tribute, and coming from Gladstone, the legalprofession need, indeed, be highly honored.Our constitution-our right of trial by jury-the petition ofrights-the bill of rights-the Habeas Corpus, and all the great safe-guards of human liberty, were gained by the constant efforts of thelegal profession after centuries of trying. If it were not for thelawyers no person today accused of crime could testify in his ownbehalf, for the reason that the clergy had taught, and had kept therule in force until a comparatively recent period, that if this wereallowed the prisoner must necessarily perjure himself.In the days of Imperial Rome her first citizens were followedfrom their homes to the Forum by crowds of admiring clients, wherethey were as such enthralled by their eloquence as at their homesthey had been guided by their advice. Rome showed her apprecia-tion of her lawyers when she declared in her civil law, that armedwarriors, whose weapon was the sword, were not the only soldiersof the Empire. Advocates, too, fought for Rome, when they exertedtheir glorious gift of eloquence in defending the lives and fortunesof their fellow beings, in upholding the cause of the poor and needy,and helping those to secure rights who had suffered wrong.Cicero, writing in the De Oratore concerning the influence oflawyers, said: "For what is more noble than for an old man, whoINFLUENCE OF THE BAR 451has held the highest honors and office in the State, to be able justlyto say for himself that which the Pythian Apollo says in Ennius"that he is the person from whom, if not natives& and kings, yet all hisfellow citizens solicit advice . . uncertain how to act; whomby my aid I send away undoubting, full of counsel, no more withrashness things perplexed to sway. For without doubt the honorof an eminent lawyer is the work of the whole State. Of this factthe gate and vestibule of our friend Quintus Marcius is proof. Evenin his very infirm state of health and advanced age, it is daily fre-quented by a vast crowd of citizens, and by persons of the highest rankand consequence."The lawyers of Rome contributed materially in placing Rome inthe front ranks of civilization, and the names of her great oratorssuch as Cicero, Cato and Quintilian stand out among the greatestnames of their time. Woe to the country whose lawyers fail it.In saying this I am thinking of Mexico in the present, and of Romein her decline and fall. History warrants the statement, that no classhas greater responsibility than the lawyers, and that none excel themn meeting and discharging its obligations.Lawyers have never been popular with kings. They flourishonly in free countries. It is as champions of freemen, and in plead-ing for the rights of men, and in resisting the lawless sway of despotsthat they have won their greatest renown. As long ago as 1332 Ed-ward the Third in issuing writs for the return of members of Parlia-ment, ordered that no lawyers be returned. In 1404 Edward theFourth did the same, and this Parliament was called the "fools Parlia-ment," for the reason that there were no lawyers in it. Henry neededmoney very badly and was afraid the lawyers would expose hisexcessive demands, and hinder his illegal purposes.James the First demanded of his judges that in any particularcase they should not render judgment until they had consulted withhim, if he so desired. But Coke had the courage and manliness torefuse James to his face, saying, "When that occasion shall occur,I trust, as a Judge, I shall do what it then becomes me to do." Peterthe Great, when in London, witnessed the power of the courts inrestricting the scope of, despotism, and the influence of the lawyersin shaping the decisions of courts. He expressed surprise at thelarge number of lawyers in Westminster Hall, and said that althoughhe had but two lawyers in his entire domains, he intended to hangone of them upon his return home.Thinking people fear autocracy in government, regardless ofwhether it is by unprincipled leaders, as for instance the French ruling452 SAMUEL RUBINclasses before the French Revolution, or by the ignorant masses asin Russia after the overthrow of the provisional government. Thelawyer in active practice knows how true it is that the individualneeds protection against the aggressions of society, equally as muchas society needs protection from the transgressions of the individual.When France was being torn asunder as a result of the reckless ex-travagance and licentiousness of her king and nobility, there arosein France an order known as that of the NOBLESSE DE LA ROBE,whose members were learned and honorable advocates; an order whichalone effectively protested against further prostitution of the libertiesof their fellow citizens. In the States-General of the French Revolu-tion (May 1789) lawyers played an important part. Carlisle says that,in the Commons, out of 560 members,374 were lawyers; and Jefferson,in a letter to Madison, written in June of the same year, says there were344 lawyers out of 554 members. In the first Parliament in October1719, out of 745 members, Carlisle says, 400 were lawyers.Although Napoleon was the son of a lawyer he hated lawyers. Inhis conspiracy to overthrow the French government and make himselfmaster of the people of the country he proposed to his military co-conspirators that they drive out the lawyers. Of course the man whospilled enough human blood to float a large modern battle-ship did notwant lawyers. They were always stepping on his corns; they werea thorn in his side. Despotic rulers always have feared those whohave opposed them in their criminal designs. And yet, it was thissame Napoleon who considered it the highest honor of his Imperialreign, and it was also his greatest boast, that he had been the author ofa code of laws which would always reflect upon his name the highesthonor of his reign.The history and power of England is to a large extent due toher lawyers. Coke, Bacon, Matthew Hale, Lord Mansfield, Pitt, Chat-ham, Canning, Burke, Fox and Gladstone, are but a few of the law-yers who have helped to make England what it is. Asquith andLloyd George in England and Raymond Poincare in France arelawyers standing out in English and French statesmenship in thepresent.Obligation of the lawyer:An obligation rests upon every lawyer to uphold the best tradi-tions of the bar. It is his duty to guard with jealous care the rightsof the poor, the ignorant and the helpless. Every lawyer stands ina dual relation. The rights of his client must be protected, as wellINFLUENCE OF THE BAR 453as the interests of society safeguarded. Where there is a conflict be-tween these the obligation to society comes first. Lawyers shouldtry to improve the law wherever possible, and point out to the peoplethe reasons for occasional miscarriages of justice, placing the blamewhere it belongs. If this were done the public would understandand appreciate the silent protection which the law affords, and thepeople would entertain a higher respect for law, and those by whomit is administered. Said Woodrow Wilson to the American Bar As-sociation in 1910. "We are lawyers . . we are servants ofsociety, officers of the courts of justice. Our duty is a much largerthing than the mere advice of private clients. In every deliberatestruggle for law we ought to be the guides, not too critical and un-willing, not too tenacious of the familiar technicalities in which wehave been schooled, not too much in love with precedents and theeasy maxims which have saved us the trouble of thinking, but readyto give expert and disinterested advice to those who purpose to progressand the readjustment of the frontiers of justice."Criticism of the lawyer:The legal profession has been subjected to the severest criticismsand prejudice from the earliest times to the present. Fanaticismof every kind develops strong hostility to the legal profession. Thelawyer predominates in public life. This very fact is one of thereasons for the attacks upon the legal profession by the less fortunateprofessions. It arouses jealousy, which always accompanies conscious-ness of inferiority. Said William Allen Butler to the law school ofthe City of New York some years ago; "The law is the most positiveof science, and the most vigorous of human forces. In its practicalapplication to the affairs of men, it is perpetually compelling an un-willing submission to its demand. It makes men give up propertywhich they want to keep; to pay debts which they prefer to owe, andto perform obligations which they seek to break. . . Thosewho practice it as a profession are! necessarily placed in an attitudeof perpetual antagonism to members or classes of the community, toindividual or bodies of men. It must, therefore, needs be that offensescome, and the profession as a class has often to assume the defensiveagainst criticism and attack, and to re-assert the principles by whichits action is guided and governed."While deploring the existence of prejudice against the legal pro-fession, ought we not to ascertain whether there is not some founda-tion for criticism? Is it not true that many people, including lawyers,454 SAMUEL RUBINbelieve that the character of the bar is not what it ought to be? Isnot public morals generally to blame for this, the morality of the barbeing but a reflex of the morals of the community? The law is prac-tically what the Bench and Bar make it. If you want sincere adherentsin any profession or vocation you must have enlightened and up-right men, not only in the profession, but in the community whichthe profession serves.There is a story told of the attempt of the people in a remotecountry town of New England to organize a church. At the meet-ing called for that purpose Mr. A's name was proposed, but Mr.B arose and explained why he did not think Mr. A was the rightsort of man to organize the church. Mrs. D then suggested a nameto which Mrs. C objected. In this manner the entire list becameexhausted, every man and woman being ineligible. At this point alevel headed old gentlemen arose and said; "Brothers and Sisters";"If it please the Lord to organize a church in this town we mustmake it of such as there are." The same principle applies to the legalprofession. It is not absolutely immune from members who areunworthy. They exist in every society and organization."The science of jurisprudence," said Burke, "is the rule ofhuman intellect, which, with all its defects and errors, is the collectedreason of ages; it is one of the first and noblest of human. sciences-and it does more to quicken and invigorate the human understandingthan all other kinds of human learning put together. Certainly noother class possesses such extensive knowledge of men and affairs,of history, literature, philosophy and government as lawyers." And ofthe common law Mr. Justice Wendell Holmes has said: "The lifeof the law has not been logic; it has been experience; the neces-sities of the time, the prevalent moral and political theories, inten-tions of public policy . . . even the prejudices which judgesshare with their followmen . . . it embodies the story of anation's development through many centuries, and it cannot be dealtwith as if it contained only the axioms and corollaries of a book ofmathematics."Necessity for lawyers:Neither civilization nor public order can exist without lawyers,and their assistance is required by the greatest as well as by the low-liest, in those matters which concern life, liberty and property.Lawyers are sworn officers of the court, and the attempt toadminister justice without them would lead to chaos, as has beenINFLUENCE OF THE BAR 455the case in Russia and Mexico. The legal profession exists to helppeople secure their legal rights, not to aid them in committinglegal wrongs. Where the strong rule regardless of law there is noneed for lawyers."Some of the greatest and most important interests of the worldare committed to your care," said Sydney Smith in one of his ad-dresses referring to lawyers. "You are our protectors against theencroachments of power. You are the preservers of freedom, the in-vestigators of artifice, the humblers of- pride, the scourgers of op-pression. When you are silent, the sword leaps from its scabbardand the nations are given up to the madness of internal strife." AndWoodrow Wilson in the address to the American Bar Associationheretofore referred to emphasizes the statement that "The countrynever needed lawyers who are also statesmen more than it needsthem now. Needs them in its courts, in its legislatures, in its seatsof executive authority. Needs lawyers who can think in terms ofsociety itself."The legal profession will shine as brilliantly in the future asin the past, even more so, if lawyers by their character and abilityshow that they deserve the respect of the people and bear in mindthat character is more valuable than rubies, and that truth is beyondall price.

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