Page:The Green Bag (1889–1914), Volume 01.pdf/334

Rh between law and justice, law is, as it were, refuted and exposed; but such contrasts may be true, and may yet prove little or nothing. Law is a collection of rules, or, more properly, of commands, prescribing the application of certain principles to particular classes of circumstances, with inflexible rigidity and precision. Justice may be described, with some approach to correctness, as the sentiment on which law is founded, but, like the curve and the asymptote, they never coincide, however nearly they may approach. Probably no law was ever yet devised which entirely satisfied the sentiment of justice in every case to which it was applied. No laws are more general, and few appear more obvious, than those which punish crimes and enforce contracts. Yet definitions of contracts and of crimes are essential to such laws; and such is the infirmity both of human language and of human thought, that the best definitions ever constructed will always include many cases which never occurred to those who framed them, and which, if they could be settled on their own grounds and without establishing precedents, would unquestionably be determined in a manner totally different from that in which the law determines them; yet this does not condemn the law. Many actions involving the guilt of high treason are almost universally looked upon as virtuous, some even as heroic; yet no sane man would wish to see the law of treason relaxed.

It is, perhaps, not too much to say that there is a natural and inevitable opposition between a definition and the sentiment on which it rests. The sentiment which condemns dishonesty is as clear and strong as any sentiment can be. But how far is it satisfied by the definition of theft? The sentiment condemns the intention even more decisively than the act; but when a definition of theft is required, terms must be chosen which do not describe, and therefore leave unpunished, many acts which are morally indistinguishable from those which are punished. Laws must be general in their terms; and a certain harshness, sternness, and disregard of individual cases of hardship are inseparable from the very existence of law.

The first thing, therefore, to be borne in mind in examining the moral character of the profession of advocacy is that the advocate is administering law, and not attempting to satisfy the sentiment of justice, and is thus engaged in a task which is radically different from that which devolves upon persons placed in positions in private life apparently analogous to his own. The master of a house, in managing the affairs of his family; a person called in to advise upon the conduct which honor and conscience require under difficult circumstances; a man of business consulted as to the course which a tradesman in difficulties ought to pursue with regard to the interests of his creditors,—are all called upon in a sense to administer justice, but they are not called upon to administer law, for no one of them has to deal, as is the case with judges and advocates, with precise rules and inflexible definitions.

Such being the general nature of law, what is the character of its administration? It may probably be asserted with as much confidence as such broad propositions ever deserve, that the degree of liberty which a nation enjoys may be tested by the degree in which the task of setting the law in motion is left to private persons. In our own country this practice prevails, with few exceptions, in all cases civil and criminal. Judges and lawyers are inactive, unless they are set in motion by private litigants who demand the application of the law to particular cases for the sake of obtaining some personal object. A man wishes to have the benefit of a contract, to receive compensation for a wrong, to get a criminal punished, and he applies to the judge appointed for that purpose to put the law in force. It is obviously necessary that the judge should hear what he has to say, and hence comes the necessity for professional advocates.

In considering the general character of the profession of an advocate, the first ques-