USA > Texas > The bench and bar of Texas > Part 11
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a general rule, with security, to compel their attendance, and, to this end, authority should be given to the commit- ting magistrate to thus force the attendance of all the material State witnesses before the proper grand jury, and of all the material witnesses for the State and defendant, before the District Court for the trial of the case. This would compel the prompt attendance of witnesses, prevent evasion" of process by absconding from the State or county and thus enable the courts to enforce trials, and a speedy ad- ministration of justice. This would also save the expense of jail fees, of the bailiffs and other officers in summoning these very witnesses, and the delay and expense of the grand jury while awaiting their appearance.
In this connection, and as saving much expense to the counties, it is further suggested that our laws should be so amended as to compel defendants who appeal, many per- haps for delay, to make their cases returnable to the then pending or next approaching term of the Court of Appeals. This is in harmony with one of the main objects of the organization of this important court, and would not only save great expense to the country, but in many cases should be done in justice to the defendants themselves, where the judgments have been affirmed in cases where the punish- ment assessed was confinement in the penitentiary. In addition to this the law should also be amended so as to permit speedy sentence to be passed after affirmance of judgment.
In a late circuit, in one of the judicial districts of the State, five defendants were awaiting the action of the court, in cases where the judgments had been affirmed for several months, before sentences under existing laws could be finally passed ; and, doubtless, there were many similar cases in other districts.
THE IMPORTANCE OF STATUTORY LEGAL FORMS. [Suggestion Number Five.]
Every intricate science has its formulas ; every difficult art its designs. The law, in its theory, is an intricate science ; in its practice, a difficult art.
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The old masters of the profession have handed down to us the result of their experience and judicial construction in certain forms of pleading, civil and criminal, and other practical forms, which have stood the test of ages.
Many of these, in some of their requisites, have out- lived the reasons which gave them existence, and, to this extent, have become obsolete. In many respects, however, they are still valuable. As expressed in the new rules, in regard to pleadings, while these forms are not authori- tatively requisite, they may be generally followed as safe guides. Were all our officials good draftsmen, and had they the leisure to prepare the requisite instruments as the particular emergency may arise, there would not exist so great necessity for carefully prepared forms. But even our courts of last resort sometimes differ as to the legal construction of certain instruments prepared by our best lawyers, and it could not be expected but that our officers, frequently unskilled by previous education or experience, should in many instances fail in their experiments.
The want of proper forms has occasioned great delay and loss, and a great resort, in almost numberless appeals, to the proper courts on questions of construction. How many indictments, after the expense of procuring the wit- nesses before the grand jury, and of the grand jury itself, and the further expeuse of the attendant jurors and wit- nesses upon the court, perhaps for several terms, jail and other incidental fees, have finally been quashed for want of a simple, comprehensive, statutory form.
Such legislation works well in other States where tried, and in some few instances in which we have statutory forms the most satisfactory results have followed. Very many lawsuits, doubtless, have been prevented by the prescribed form for taking the separate acknowledgment of a married woman. It is seldom the case that a motion to quash an attachment is based upon a want of formality in the bond. Our statute, which prescribes the form of recognizance in appeals in State cases, has saved much confusion and delay.
Thousands and thousands of dollars are lost annually by
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reason of defective bail bonds. These important instru- ments, so essential in the administration of the criminal law, and which require the skill of one learned in the law, are generally prepared by inexperienced or incompetent officers, who do not know the legal effect of the terms used, or the necessity of others entirely omitted. Even recog- nizance, judgments nisi and final, taken in the very presence of the court, are often, from want of proper care and attention, so defective as to be set aside on motion or appeal. In this way not only is the amount of the penalty lost to the State, after all the expense and delay incurred to that stage in the prosecution, but in many cases the offender escapes wholly unwhipped of justice.
Frequently judgments by default can not be taken, where there is no appearance and contest even by the defendant, for want of a proper return by the officer, who may live in a distant county, and hence can not amend it during the term; or, if taken, they are set aside or reversed on appeal. Depositions are in many cases suppressed for want of proper certificate from the officer, or informality in the manner of return ; indeed for depositions to be sustained under our present practice is the exception rather than the general rule. All this obstructs the machinery of the courts, causes frequent appeals to the Supreme and Appel- late Courts, and consequent delay and expense which could easily be remedied.
It is most respectfully submitted, that if the suggestions contained in this and the four preceding articles be prac- tically carried into effect, and if the judicial districts be so reduced in size as to insure sufficient time for the full call of all the dockets (the want of which, in many counties amounts to a denial of justice ), and so as to give the judges that time for reading and reflection, so essentially necessary to a proper discharge of their high and responsible duties, then, it is most confidently believed that some of the great- est defects in our laws aad practice will be remedied, the enormous expenses of our judicial system will be reduced at least one-half and justice will be more speedily and effectually administered.
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Before concluding these suggestions, it is proper to state that it was not intended in the first one, " A Proposed Amendment to our Statute of Trespass to Try Title," to require parties to set out their title papers in hoc verba, but simply to deraign them according to their legal effect, which can be done in a small space. Neither was it intended to compel a defendant to plead his title, when he simply relied upon his possession and the weakness of the plain- tiff's title; but in cases only where he sought to recover on the superiority of his own title.
His sentence of judgment upon N. T. Dickerson, a preacher, shows the blending of sternesss and sympathy which entered into the composition of his character. He said : -
" The most painful of my official duties is to pass the sentence of the law upon those who have been convicted. In your case this duty becomes doubly so by reason of your age and former ministerial position. Now past your three score years, once a minister of the gospel, the cardina] doctrine of which is peace on earth and good will toward men, it is indeed a sad commentary upon the frailty of human nature, and from which we may all take warning, that you should be arraigned and sentenced for the crime of murder. The verdict of the jury shows that in an unguarded hour, when reason had lost her sway and passion ruled, you took upon yourself the awful responsibility which belongs to God and the tribunals of justice only, to take the life of a fellow-being, and to send his spirit without previous preparation into the presence of Him who gave it. In justice to those better instincts of the human heart which still remains to man amid the ruins of his fall, and in extenuation of your seeming guilt, we indulge the sug- gestion that there are mitigating facts in your case, which the unfortunate circumstances by which you were surrounded prevented from being brought to light. Our human tribu- nals are far from being infallible ; we are liable often to err, but before the judgment bar to which we are all fast hastening, when the secrets of all hearts shall be made known, I sincerely trust that either from the true facts of your case, which may not have been fully developed here,
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or from a bitter repentance acceptable in the sight of God, the final sentence of condemnation forever may not be passed upon you. Yourgeneral good character for peace, testified to on the trial by many of your old neighbors, and the meek- ness with which you have borne your long and painful confinement in jail, speak much in your favor. These considerations, with your age, will doubtless appeal strongly to the clemency of those into whose custody you are about to be committed. Continued good behavior on your part, may, as is often the case, shorten the term of your confine- ment. I strongly commend you to the mercy of Almighty God, who graciously promises never to forsake them who put their trust in Him.
" It is, therefore, the sentence and judgment of this court that you be taken hence by the sheriff of Kaufman County, and by him safely conveyed to the penitentiary at Huntsville, there to be confined at hard labor for the term of ten years."
The following lecture. delivered by Judge Bonner from the bench, upon the admission of an applicant to practice in his court, is worthy of preservation, and is commended to all young lawyers for its elevating sentiment and salutary counsel : -
" Standing upon the threshold of your profession, within the vestibule of the great temple of justice, in which you are now called to officiate, as an introduction to my charge to you upon the true mission, duties and responsibilities of lawyers, I call your attention to the eloquent language of that profound scholar and jurist, Judge Story, at the close of his great work on Equity Jurisprudence. His remarks are applicable to the whole science of law. He says: 'The grandeur of the entire plan can not be fully comprehended but by the persevering resources of many years. The masterpieces of ancient and modern art still continue to be the study and admiration of all those who aspire to a kindred excellence; and new and beautiful lights are per- petually reflected from them, which have been unseen or unfelt before. Let the youthful jurist, who seeks to en-
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lighten his own age, or to instruct posterity, be admon- ished that it is by the same means, alone, that he can hope to reach the same end. Let it be his encouragement and consolation, that by the same means the same end can be reached. It is but for him to give his days and nights, with a sincere and constant vigor, to the labors of the great masters of his own profession, and, although he may now be but an humble worshiper at the entrance of the porch, he may hereafter entitle himself to a high place in the min- istrations at the altars of the sanctuary of justice.'
" In entering upon this, one of the most important and re- sponsible of the learned professions, you will be expected, as an individual, to discharge more prominently your duties as a good citizen and member of society; and as a lawyer to discharge faithfully the new duties which you have as- sumed to the court, to your clients, and to yourself. The old members of the bar are passing away, and the young members must take their places. Soon to their keeping will be handed down the duties, responsibilities and esprit de corps of the profession. They should prepare them- selves to discharge well the one, and to guard sacredly the other.
"A passing glance only will be given at the most im- portant of these, presenting the mere outlines alone, leav- ing the details to be filled up by your future observation and learning, and by intercourse with the honorable and meritorious members of the profession, with whom it will be your good fortune to associate. I can not do this more forcibly than by calling your attention to the Advocate's Oath of Geneva, of which it has been well said : . Here you have the creed of an upright and honorable lawyer. The clear, terse and lofty language in which it is expressed needs no argument to elucidate its principles, no eloquence to enforce its obligations. It has in it the sacred savor of divine inspiration, and sounds almost like a restored read- ing from Sinai's original but broken tablets.' The oath is in the following language : ' I solemnly swear, before Almighty God, to be faithful to the Republic. and to the
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Canton of Geneva ; never to depart from the respect due the tribunals and authorities; never to counsel or maintain a cause which does not appear to be just or equitable, unless it be in defense of an accused person; never to em- ploy, knowingly, for the purpose of maintaining the cause confided to me, any means contrary to the truth; and never seek to mislead the judges by any artifice or false statements of facts or law ; to abstain from all offensive personality, and to advance no fact contrary to the honor and reputation of the parties, if it be not indispensable to the cause with which I may be charged ; not to encourage either the commencement or continuance of a suit from motives of passion or interest ; nor to reject, for any con- sideration personal to myself, the cause of the weak, the stranger, or the oppressed.'
" A brief analysis of this oath.is worthy of your most serious consideration. As it required the advocate to be faithful to the Republic and to the Canton of Geneva, you are required to swear that you will support the Constitu- tion of the United States and the State of Texas ; that you will honestly demean yourself in the practice of law, and will discharge your duty to your clients to the best of your ability.
" The proper construction and faithful administration of the laws on the part of our rulers, and the respect, venera- tion and obedience due them on the part of the people, constitute the great sheet-anchor of all good government ; but a latitudinous construction to suit the wishes of tyrants, and a blind and ignorant submission to fundamental inno- vations is the dangerous rock upon which the greatest gov- ernments of the world have been wrecked.
" There is, against lawyers, a common but most erroneous prejudice growing out of improper practices of some un- worthy members of the profession. It should be your proud aim, both by your example and discourse, to remove this prejudice and to elevate the profession to its proper high standard.
" Lawyers have ever been foremost to advocate the princi- ples of political liberty and reform, and to seal with their
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blood their devotion to the cause. From their ranks, oftener than from other stations in life, are selected our politicians and statesmen in the executive and legislative departments of our government, both State and Federal ; and the judiciary department must necessarily be filled by them. History will fully sustain the following remarks of Chancellor Bibb in their vindication : -
""" Do not cherish prejudice against lawyers as a class. They have been in all free governments the friends and sup- porters of liberty, exposing the corruption of ministers and the prostitution of judges. They are necessary to bring the ministers of the law to an account for oppression in office ; to warn judges of their duty ; to apprise the people of their rights ; to defend them against the encroachment of unconstitutional power; to detect the frauds of the knavish and artful upon the honest and simple; they are useful in the general administration of the laws.'
" Some of the most remarkable and eloquent speeches which have ever been delivered, and which have shaped the destiny of nations, will most strongly prove the above statement. Among many others which it will be your duty and, doubtless, your pleasure to read, I refer you to the celebrated speech of Lord Erskine, 'On the Rights of Juries,' in the great case of the Dean of Asaph.
" Well may we be proud of such a legacy, and right earn- estly should we strive to sustain this noble reputation, and add to it our weight and our influence. It is estimated that there are forty thousand lawyers in the United States. There were one hundred and ninety-eight in a recent ses- sion of Congress, and many more, doubtless, in the several State Legislatures. In despite of an ignorant prejudice to the contrary, experience proves that legislation can not be carried on without the aid of lawyers ; for who can well make or amend that which he does not understand? Law- yers have no richer harvest than that which grows up from ignorant or ill-advised legislation.
" These thousands of lawyers are scattered in the princi- pal villages, towns and cities of the Union, and from their education, training, habits and station in life, necessarily
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exercise a leading and controlling influence over the senti- ments of society and the policy and destiny of state. The influence, for weal or woe, of such an array of trained talent and energy, permeating every circle of society, can scarcely be estimated. As one of this great army, in the grand drama of life, guard well your actions and your influence.
" We are required never to depart from the respect due to the tribunals and to the authorities. In that book of books, : written by the hand of the great Lawgiver himself, teaching us as man never taught, and whence we draw, as from a never-failing fountain, our great principles of law and equity, we are commanded to obey ' the powers that be.' That greatest of the Apostles, who was brought up at the feet of Gamaliel, the learned doctor of the Jewish law, spoke on one occasion unwittingly against one of the judges. When informed of this he declared his ignorance of having thus spoken to a judge, and said: ' It is written: " Thou shalt not speak evil of the rulers of thy people." '
" You have now become a sworn officer of the court, and that which adds to the dignity of the court adds to your dignity ; and that which detracts from the dignity of the court detracts from your dignity. The individuality of the judge presiding is merged into his official position, and though you may not respect him as a man, you should have respect for his office. This, besides being your duty, you will find in your practice to be the best policy. If you are always courteous and respectful to the court, it will insure you the attention of a considerate judge, though he may be inclined to differ with you in your construction of the law or facts of the case. .
'Another obligation to the court is most forcibly laid down in the advocates' oath, - that you will never employ, knowingly, for the purpose of maintaining the cause con- flded to you, any means contrary to truth, and will never seek to mislead the judges by an artifice or false statement of facts or law. As said by Chief Justice Gibson : 'It is a popular but gross mistake to suppose that a lawyer owes no fidelity to any one except his client, and that the latter is the keeper of his professional conscience. He is es-
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pecially bound by his official oath to behave himself in his office of attorney, with all due fidelity to the court as well as to the client, and he violates it when he consciously presses for an unjust judgment, much more so when he presses for the conviction of an innocent man."
"As has been most forcibly said, and which you can well adopt as one of your professional maxims : 'What is morally wrong can not be professionally right.' Truth, that mirror of justice and good faith, that talisman of in- tegrity, should always characterize your conduct as a lawyer. As a man, you should be honorable and high-toned in all your dealings, and as a lawyer, your duty to your client never demands of you that which, as a man, you would scorn to do for yourself. Your client can demand of you to protect his legal rights, but not to sacrifice your moral honesty ; to see that he is not unlawfully imposed upon, but not that you impose upon yourself or the court. Re- member, then, to keep unsullied your professional reputa- tion, and that your obligations as a lawyer are not intended to supplant your obligations as a gentleman, but rather to add to them.
" As an officer of the court you are expected to assist, not to lead it into error ; to hold up and strengthen the hands of the judge in the faithful performance of his high office of trust and confidence, so intimately connected with that per- sonal liberty and right of property in which every citizen is interested. Sadly to be pitied is that judge who thinks that he has arrived at the pinnacle of his profession and has nothing more to learn. If ignorant and dull, and if it be possible for counsel to mislead him by any artifice or false statement of law or facts, then others, less scrupulous than yourself, might exert a more controlling influence over him. If, however, he should be learned in the book of human nature as well as in the books of the law, he would soon de- tect your false premises and fallacious arguments, and you would soon cease to exert that influence to which you should be entitled.
"You are also required in your intercourse and practice in the court-room to abstain from all offensive personalities,
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and to advance no fact contrary to the reputation of the parties, if it be not indispensable to the cause with which you are charged. Zeal in behalf of clients, or desire for success, should never induce counsel to endeavor to obtain a verdict by arguments based upon other than the facts in evidence and the conclusions legitimately deducible from the law applicable to the same. All remarks calcu_ lated to excite undue passion or prejudice should be care- fully avoided ; and verdicts obtained by such unfair means should be promptly set aside.
" You will find, as has been well remarked, that pleasant- ness and politeness are the cheapest and most remunerative commodities with which a young man ever entered into business. If some inconsiderate member of the bar, op- posing you, should resort to the shallow expedient of offen- sive personality, rather than sound argument, remember that the wise man has taught us that it is not always best to answer another according to his folly; neither is it be- neath the dignity of a true gentleman to turn away wrath by a soft answer. It is an excellent practice prevailing in some of our best organized courts, and handed down to us by the fathers of the profession, and well worthy our emu- lation, that the members of the bar should always, in the business of the court-room, address each other as 'my brother.'
" As far as possible, then, in your intercourse with your brother attorneys and the officers of the court generally, be on the very best terms ; merit their confidence and kind- ness, and reciprocate their favors and their courtesies. Re- member, however, that every pleasure has its snare, and that, sometimes, in the exhilaration of the social greeting and the boon companionship around the circuit, which is peculiar to lawyers above all others of the learned profes- sions, you may, almost insensibly, be led into excesses. How often, alas, have we been called to mourn the untimely fate of our most gifted members. They appeared as flashing meteors, but soon their dazzling brightness was hidden behind the clouds of dissipation.
" There is another error into which unreflecting attorneys
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sometimes fall -that of unnecessarily brow-beating and abusing witnesses and parties. You should recollect that many witnesses and parties are forced into court by com- pulsory process, and many good men, from the novelty of their situation, are naturally embarrassed. You should not make their position, and that which is often their misfor- tune, the occasion of their defamation by substituting privileged slander for legitimate argument. In a proper case, however, it is your right, and it may be your duty, to deal with them as you think they deserve, and expose villiany, corruption and perjury.
" Towards your clients the very utmost good faith is required, and you should be true and faithful to their interests. The law is very guarded in this particular, and their privileged communications to you are held so sacred that the courts not only will not compel you to disclose them, but are forbidden to permit you to do so without their express consent ; this being both a right belonging to your clients and a duty owing to yourself. You should give them good counsel, learn the facts of the case, and advise them of the law bearing upon the same. Never from motives of interest or passion encourage either the commencement or continuance of a suit, nor reject from any personal consideration the cause of the weak, the stranger or the oppressed ; and never counsel or maintain a cause which does not appear to be just or equitable, unless it be in the defense of an accused person.
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