ETIQUETTE OF THE BAR.
THAT vague but convenient entity, "the plain man," or "the man in the street," has recently had some rather difficult questions to consider. One of the most puzzling has revolved round a certain aspect of the Marconi scandals, and has been discussed in the correspondence columns of the newspapers during the past fortnight. On Wednesday and Thursday in the House of Commons there was a debate on the Marconi transactions and the questions of Ministerial conduct involved in them, and before the debate came on it was plain enough that it would shape itself on something like party lines. That being so, however, there was another fact to be considered, which was that two of the ablest and keenest debaters on the Unionist side would probably take no part in the proceedings, owing to the etiquette which bound their actions as barristers. Sir Edward Carson and Mr. F. E. Smith had appeared as counsel for Sir Rufus Isaacs and Mr. Herbert Samuel in the Malin libel case and also for Mr. Godfrey Isaacs in the Chesterton case, and were therefore precluded from discussing the Marconi transactions in their political aspect in the House of Commons. Here the plain man found it hard to reconcile etiquette with common sense. How could two of the fighting men of the Unionist Party, generally in the front of attack, in this case silence themselves by accepting beforehand in another place the position of defenders of the Ministers chiefly involved?
That aspect of the question was summed up in a speech made on June 2nd at Glasgow by Sir John Stirling Maxwell, who proposed " The Cause of the Union," and congratulated Ulster on having a leader so eloquent and so chivalrous. Sir Edward Carson, he said, in reference to the Marconi transactions, "had carried chivalry almost too far." He had lent his assistance to extricate certain persons "from the con- sequences of their indiscretions and their still more indiscreet and dishonest attempts to conceal them. Chivalry carried so far as that," he went on, " may be too great a windfall to the enemy and too great an embarrassment to one's friends." There you have the plain man's view in a nutshell. Let us say at once, then, that in our opinion, looking at the case as a whole, it is a wrong view. Sir Edward Carson has been most unfairly and wrongly blamed for his action in this matter—not by Sir John Stirling-Maxwell, who spoke as one honourable man to another, but by others who have criticized his actions with a less balanced judgment. Sir Edward Carson, we hold, acted throughout in accordance with the highest traditions of the English Bar. The same words, of course, apply in every respect to Mr. F. E. Smith. Sir Edward Carson was asked to defend a client, and as a barrister he gave without fear or favour his full services. As a barrister he could do no more and no less. In the position in which he found himself there was but one course which was his to pursue. It was not that the Attorney-General was the head of the profession to which he belonged, and that he was entitled to expect the highest services of the most distinguished counsel. It was that a client demanded the assistance of an advocate, and that it was the duty of the advocate to undertake that assistance to the fullest extent of his powers. He had no political questions to take into consideration one way at another. He had not to decide whether as a Unionist it was a good thing for his party that he should appear as counsel for a Home Ruler. Those questions did not arise. We do not say that such questions could not arise in other circum- stances, for to that point we shall come in a moment, but they ought not to have influenced, and plainly did not influence, Sir Edward Carson's course of action in this particular case. A principle was involved upon which he acted with- out hesitation. And to what injustice and wrong we might all of us come if he had not acted upon that principle we may easily see by imagining events to have taken a different course. Suppose that at the early stage of the Marconi proceedings represented by the Malin case it had become known that Sir Edward Carson and Mr. F. E. Smith had refused to appear as counsel for Sir Rufus Isaacs. The whole affair, in the minds of ordinary men, would have been prejudged. People would have said, " There must be something bad there ; if there were not, you would have found Carson and Smith briefed as counsel instead of So-and-so and So-and-so." That would be monstrously unfair to the politician who was in effect, though not technically, on his defence. Worse ; for if the counsel event. ually briefed had turned out to be of the same political way of thinking as Sir Rufus Isaacs, and had treated the case throughout on party lines, the whole course of administration of justice would have been brought into disrepute. The procedure of the law courts would have been treated as a party affair and nothing more, and would have gained no general approval or acquiescence. In short, there was only one standpoint from which Sir Edward Carson could have regarded the situation as it then appeared to him, and that is the standpoint adopted by Erskine in his eloquent and memorable speech in defence of Tom Paine, prosecuted in 1792 for seditious libel. Erskine was then Attorney-General to the Prince of Wales, and though he held that position this was his view of his duty towards his client (Sir Harry Poland quotes the passage from "State Trials " in an admirable letter in the Times of June 14th) :—
"Little, indeed, did they know me who thought that such calumnies would influence my conduct. I will for ever, at all hazards, assert the dignity, independence, and integrity of the English Bar, without which impartial justice, the most valuable part of the English Constitution, can have no existence. From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arraigned in the Court where he daily site to practise, from that moment the liberties of England are at an end. If the advocate refuses to defend from what he may think of the charge or of the defence, he assumes the character of the Judge; nay, ho assumes it before the hour of judgment, and in proportion to his rank atd reputation puts the heavy influence of, perhaps, a mistaken opinion into the scale against the accused, in whose favour the benevolent principle of the English law makes all presumptions, and which commands the very Judge to be his counsel."
That is a fine passage. But there is a greater and even more memorable statement of the duty of an advocate towards his client, which emphasizes in magnificent oratory the single purpose which, it may be to the astonishment of his fellow- men, it many be to his own undoing, an advocate is bound to preserve always before his eyes. It is to be found in Brougham's speech in defence of Queen Caroline. If the King and the Tory peers went their way, Brougham told the House of Lords plainly that he would go his, whatever might be the consequences involved. He flung them this threat :—
"The cause of the queen does not require recrimination (a pause) at present. . . . If, however, I shall hereafter think it advisable to exercise that right—if I shall think it necessary to avail myself of means which at present I decline using—let it not be vainly supposed that I, or even the youngest member in the profession, would hesitate to resort to such a course, and fearlessly perform my duty. I have before stated to your lordships—but surely of that it is scarcely necessary to remind you—that an advocate in discharge of his duty knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and among them to himself, is his first and only duty ; and in per- forming this duty he must not regard the alarm, the torments, the destruction which he may bring upon others. Separating the duty of a patriot from that of an advocate, he must go on reckless of consequences, though it should be his unhappy fate to involve his country in confusion."
" Separating the duty of a patriot from that of an advocate" —it is a tremendous pronouncement. Are we prepared to go so far in all conceivable situations as regards a client in which an advocate may find himself ? In all situations in which the duty of advocate has actually been undertaken Brougham's definition remains unassailable. But need the duty of advocate be on all occasions unhesitatingly undertaken P There, as it seems to us, we come to the single case in which an advocate is bound to think first not of a possible client, but of an existing trust. When a barrister has attained the honourable and responsible position of a seat in the House of Commons, he owes that House a duty which he may not neglect, he has involved himself in a trust which he cannot violate. If he is asked to act as counsel for a client, and finds that his duty to his client would interfere with his duty to the House of Commons, then he is not merely justified in asking, but he ought to ask, to be excused. He has voluntarily incurred one obligation ; he cannot incur a second which compels him to disregard the first. He must not under- take a duty for a private individual if by doing so he disfranchises his constituency and disables the House to which he belongs. To return to the particular case which has caused so much discussion, Sir Edward Carson and Mr. F. E.
Smith were perfectly right in acting as they did in the circum- stances as they saw them. In the circumstances of to-day the same considerations would not apply. What was originally merely a matter for investigation has become a burning topic of politics, and, that being so, politicians must think of the House of Commons first and of the legal profession and the claims of advocacy afterwards. The one trust is greater than the other. It is greater because it is undertaken permanently; the other, though equally sacred, need only be assumed at will. That is the root of the matter, and it is in that sense that we may separate, and still in the best way combine, the duties of a patriot and an advocate.
If the duty of the member of Parliament is not to be con- sidered as even higher than that of the advocate, then we must exclude those who are practising advocacy from the House of
Commons. We cannot sacrifice the House of Commons to the convenience of leading counsel. They cannot let a brief sterilize them as legislators—as Senators of the Empire. They must either resign the Bar when they enter the House, or else let it be understood that there is one exception to the excellent, nay necessary, rule of the profession in all other
cases, namely, that no accused man shall be limited in his choice of an advocate. The exception must run—" save only when the advocate is a member of the House of Commons." Such membership must carry with it the right to refuse briefs touching matters which will come, or are likely to come, before Parliament.