Page:The Green Bag (1889–1914), Volume 05.pdf/504

 License of Speech of Counsel.

467

LICENSE OF SPEECH OF COUNSEL.

I.

TDRETTY nearly all the evils of human venient and agile weapon of offence ordefence that men are extremely apt to employ it instead of fists or feet or natural or manu factured agencies. I have often wondered whether this world would not have been a great deal pleasanter and more peaceful if all men had been born deaf and dumb, and it has always shocked my sensibilities to read those poetical pictures of the future state of existence which represent immortal beings as not having repented of excess of speech on earth, and as singing psalms to all eter nity. Perhaps men would have found some other way of expressing their feelings and opinions if they had not been endowed with this fiery little 'member. I believe it is said that the deaf and dumb are worse-tempered than those who can hear and speak, on account of the lack of this natural vent. But at all events a very wise man has recorded that " Speech is silver, but silence is golden." Let it be understood that no reflection is here intended against those eloquent and long-winded gentlemen who have just finished (let us hope it! ) the dis cussion of the bearings of the seal-fishing business. They have wisely been getting themselves into training for eternity, and now that they have ceased from troubling for a time, the world will shout, " Selah!" Very great license of speech has always been vouchsafed to counsel. This is neces sary, because they are required to talk so much more than any other class of men except auctioneers, and are not tolerated within the safe and inoffensive limits of those iterative persons. Lawyers inevitably "slop over" a good deal, unlike George
 * existence have come through overexercise of the tongue. It is such a very con

Washington, — although it is now said that he did relax considerably at Monmouth. The business of advocacy and the inevitable failings of human nature are taken into the account. Suitors expect and demand that council shall grow very vehement and lo quacious and red in the tongue — so to speak — in their behalf. That is what they are paid for doing. And counsel, not only as a matter of business and from an earnest desire to give the client his money's worth, but through a natural propensity, are much more apt to wax loud and angry and care less in speech in the client's cause than they would in their own. An acquired taste (like that for Katishaw in the opera) is always stronger than a natural appetite, and it seems easier for advocates to lash them selves into professional fury than into personal indignation. That is the reason why lawyers so seldom have personal quar rels. Consequently courts have uniformly protected counsel against liability to respond in damages for slanders uttered at the bar. But although counsel are thus individually protected, their clients are sometimes made indirectly to suffer on account of their intemperance of speech. New trials are frequently granted for this reason. It is a noteworthy fact that such new trials are much more frequently awarded in the West and South, in the new and com paratively wild parts of our national domain, than in the older and more cultivated States. This is certainly not because the offence is any less common in the latter. I have often listened to objurgations and denunciations and accusations on the part of counsel in the State of New York, which went in at one judicial ear and out at the other, and did not even raise the eyebrows of oppos