a criminal case, I would acquiesce in the as they now are, to protect themselves from evidence which carried conviction to my illusion and casuistry and misrepresentation. mind; but still in both something may re- Such a man, I say, would have a weight of main for the pleader to do. The plaintiff advocacy which no other qualification can may demand a thousand pounds when only supply; and upright clients, knowing this, eight hundred are due, and a pleader, though would find it their interest to employ him. he could not with integrity resist the whole The majority of clients, it is to be hoped, demand, could resist the excess of the de- are upright. Professional success, therefore, mand above the just amount. Or if a pro- would probably follow. And if a few such secutor urges the guilt of a prisoner, and pleaders, nay if one such pleader, was estabattempts to procure the infliction of an undue lished, the consequence might be beneficial punishment, a pleader, though he knows the and extensive to a degree which it is not prisoner's guilt, may rightly prevent a sen- easy to compute. It might soon become tence too severe. Murray the grammarian necessary for other pleaders to act upon the had been a barrister in America: "I do not same principles, because clients would not recollect," says he, "that I ever encouraged intrust their interests to any but those whose a client to proceed at law when I thought characters would give weight to their advohis cause was unjust or indefensible; but in cacy. Thus even the profligate part of the such cases I believe it was my invariable profession might be reformed by motives of practice to discourage litigation and to re-interest, if not from choice. Want of credit commend a peaceable settlement of differences. In the retrospect of this mode of practice I have always had great satisfaction, and I am persuaded that a different procedure would have been the source of many painful recollections."1 38. One serious consideration remains the effect of the immorality of legal practice upon the personal character of the profession. "The lawyer who is frequently engaged in resisting what he strongly suspects to be just, in maintaining what he deems to be in strictness untenable, in advancing inconclusive reasoning, and seeking after flaws in the sound replies of his antagonists, can be preserved by nothing short of serious and invariable solicitude from the risk of having the distinction between moral right and wrong almost erased from his mind."2 Is it indeed so? Tremendous is the risk. Is it indeed so? Then the custom which entails this fearful risk must infallibly be bad. Assuredly no virtuous conduct tends to erase the distinctions between right and wrong from the mind. 39. It is by no means certain that if a lawyer were to enter upon life with a steady determination to act upon the principles of strict integrity, his experience would occasion any exception to the general rule that the path of virtue is the path of interest. The client who was conscious of the goodness of his cause would prefer the advocate whose known maxims of conduct gave weight to every cause that he undertook. When such a man appeared before a jury, they would attend to his statements and his reasonings with that confidence which integrity only can inspire. They would not make, as they now do, perpetual deductions from his averred facts; they would not be upon the watch, 1 Memoirs of Lindley Murray, p. 43. 2 Gisborne. might be want of practice; for it might eventually be almost equivalent to the loss of a cause to intrust it to a bad man. The effects would extend to the public. If none but upright men could be efficient advocates, and if upright men would not advocate vicious causes, vicious causes would not be prosecuted. But if such be the probable or even the possible results of sterling integrity, if it might be the means of reforming the practice of a large and influential profession, and of almost exterminating wicked litigation from a people, the obligation to practise this integrity is proportionately great: the amount of depending good involves a corresponding amount of responsibility upon him who contributes to perpetuate the evil. CHAPTER VI. PROMISES.-Definition of a promise-Parole-Ex- from such contracts as a lawyer would draw God. and then, as soon as it is accepted, to violate that word, is no ordinary deceit. An upright man never broke parole. 45. Promises are not binding if performance is unlawful. Sometimes men promise to commit a wicked act-even to assassination; but a man is not required to commit murder because he has promised to commit it. Thus in the Christian Scriptures, the son who had said, "I will not" work in the vineyard, and "afterwards repented and went," is spoken of with approbation: his promise was not binding, because fulfilment would have been wrong. Cranmer, whose religious firmness was overcome in the prospect of the stake, recanted; that is, he promised to abandon the Protestant faith. Neither was his promise binding. To have regarded it would have been a crime. The offence both of Cranmer and of the son in the parable consisted not in violating their promises, but in making them. 42. Persons sometimes deceive others by making a promise in a sense different from that in which they know it will be understood. They hope this species of deceit is less criminal than breaking their word, and wish to gain the advantage of deceiving without its guilt. They dislike the shame but perform the act. A son has abandoned his father's house, and the father promises that if he returns he shall be received with open arms. The son returns, the father opens his arms" to receive him, and then proceeds to treat him with rigour. This father falsifies his promise as truly as if he had 46. Some scrupulous persons appear to specifically engaged to treat him with kind-attach a needless obligation to expressions ness. The sense in which a promise binds a person is the sense in which he knows it is accepted by the other party. 43. It is very possible to promise without speaking. Those who purchase at auctions frequently advance on the price by a sign or a nod. An auctioneer, in selling an estate, says, "Nine hundred and ninety pounds are offered." He who makes the customary sign to indicate an advance of ten pounds promises to give a thousand.-A person who brings up his children or others in the known and encouraged expectation that he will provide for them, promises to provide for them. A shipmaster promises to deliver a pipe of wine at the accustomed port, although he may have made no written and no verbal engagement respecting it. 44. Parole, such as is taken of military men, is of imperative obligation. The prisoner who escapes by breach of parole ought to be regarded as the perpetrator of an aggravated crime: aggravated, since his word was accepted, as he knows, because peculiar reliance was placed upon it, and since he adds to the ordinary guilt of breach of promise that of casting suspicion and entailing suffering upon other men. If breach of parole were general, parole would not be taken. It is one of the anomalies which are presented by the adherents to the law of honour, that they do not reject from their society the man who impeaches their respectability and his own, whilst they reject the man who really impeaches neither the one nor the other.—To say I am a man of honour, and therefore you may rely upon my word; which they employ in the form of promises. You ask a lady if she will join a party in a walk; she declines, but presently recollecting some inducement to go, she is in doubt whether her refusal does not oblige her to stay at home. Such a person should recollect that her refusal does not partake of the character of a promise: there is no other party to it; she comes under no engagement to another. She only expresses her present intention, which intention she is at liberty to alter. 47. Many promises are conditional though the conditions are not expressed. A man says to some friends, I will dine with you at two o'clock; but as he is preparing to go, his child meets with an accident which requires his attention. This man does not violate a promise by absenting himself, because such promises are in fact made and accepted with the tacit understanding that they are subject to such conditions. No one would expect, when his friend engaged to dine with him, that he intended to bind himself to come, though he left a child unassisted with a fractured arm. Accordingly, when a person means to exclude such conditions he says, "I will certainly do so and so if I am living and able." 48. Yet, even to seem to disregard an engagement is an evil. To an ingenuous and Christian mind there is always something painful in not performing it. Of this evil the principal source is gratuitously brought upon us by the habit of using unconditional terms for conditional engagements. That which is only intention should be expressed as intention. It is better, and more becoming the condition of humanity, to say, I intend to do a thing, than, I will do a thing. The recollection of our dependency upon uncontrollable circumstances should be present with us even in little affairs-" Go to now, ye that say, To-day or to-morrow we will go into such a city and buy and sell and get gain whereas ye know not what shall be on the morrow.-Ye ought to say, If the Lord will, we shall live, and do this or that." Not indeed that the sacred name of God is to be introduced to express the conditions of our little engagements; but the principle should never be forgotten that we know not what shall be on the morrow. the entanglement in which we involve ourselves by having begun to deviate from rectitude. If we had not unlawfully made the promise, we should have had no difficulty in ascertaining our subsequent duty. The traveller who does not desert the proper road easily finds his way; he who once loses sight of it has many difficulties in returning. De 50. The history of that good man John Fletcher (La Flechère) affords an example to our purpose. Fletcher had a brother, De Gons, and a nephew, a profligate youth. This youth came one day to his uncle De Gons, and holding up a pistol, declared he would instantly shoot him if he did not give him an order for five hundred crowns. Gons in terror gave it; and the nephew then, under the same threat, required him solemnly to promise that he would not prosecute him; and De Gons made the promise accordingly. That is what is called an extorted promise, and an extorted gift. How, in similar circumstances, did Fletcher act? This youth afterwards went to him, told him of the "present" which De Gons had made, and showed him the order. Fletcher suspected some fraud, and thinking it right to prevent its success, he put the order in his pocket. It was at the risk of his life. The young man instantly presented his pistol, declaring that he would fire if he did not deliver it up. Fletcher did not submit to the extortion: he told him that his life was secure under the protection of God, refused to deliver up the order, and severely remonstrated with his nephew on his profligacy. The young man was restrained and softened; and before he left his uncle, gave him many assurances that he would amend his life.-De Gons might have been perplexed with doubts as to the obligation of his "extorted" promise: Fletcher could have no doubts to solve. 49. Respecting the often-discussed question whether extorted promises are binding, there has been, I suspect, a general want of advertence to one important point. What is an extorted promise? If by an extorted promise is meant a promise that is made involuntarily, without the concurrence of the will; if it is the effect of any ungovernable impulse, and made without the consciousness". of the party-then it is not a promise. This may happen. Fear or agitation may be so great that a person really does not know what he says or does; and in such a case a man's promises do not bind him any more than the promises of a man in a fit of insanity. | But if by an 66 extorted" promise it is only meant that very powerful inducements were held out to making it, inducements, however, which did not take away the power of choice —then these promises are in strictness voluntary, and, like all other voluntary engagements, they ought to be fulfilled. But perhaps fulfilment is itself unlawful. Then you may not fulfil it. The offence consists in making such engagements. It will be said, A robber threatened to take my life unless I would promise to reveal the place where my neighbour's money was deposited. Ought I not to make the promise in order to save my life? No. Here, in reality, is the origin of the difficulties and the doubts. To rob your neighbour is criminal; to enable another man to rob him is criminal too. Instead, therefore, of discussing the obligation. of "extorted" promises, we should consider whether such promises may lawfully be made. The prospect of saving life is one of the utmost inducements to make them, and yet, amongst those things which we are to hold subservient to our Christian fidelity, is our own life also." If, however, giving way to the weakness of nature, a person makes the promise, he should regulate his performance by the ordinary principles. Fulfil the promise unless fulfilment be wrong: and if, in estimating the propriety of fulfilling it, any difficulty arises, it must be charged not to the imperfection of moral principles, but to 66 Lies. other offences, has been needlessly founded 1 2 with perjury, and murder, and parricide. Not that it is necessary to suppose that the but that the guilt of all is great. With remeasure of guilt of these crimes is equal, spect to lying, there is no trace in these 1 Eph iv. 25. 2 Lev. xix. II. 31 Tim. i. 9, 10 passages that its guilt is conditional upon | What constitutes a right to know the truth, its effects, or that it is not always, and for whatever purpose, prohibited by the Divine Will. 52.. A lie is, uttering what is not true when the speaker professes to utter truth, or when he knows it is expected by the hearer. I do not perceive that any looser definition is allowable, because every looser definition would permit deceit. 53. Milton's definition, considering the general tenor of his character, was very lax. He says, "Falsehood is incurred when any one, from a dishonest motive, either perverts the truth or utters what is false to one to whom it is his duty to speak the truth." To whom is it not our duty to speak the truth? What constitutes duty but the will of God? and where is it found that it is His will that we should sometimes lie?—But another condition is proposed: in order to constitute a lie, the motive to it must be dishonest. Is not all deceit dishonesty; and can any one utter a lie without deceit? A man who travels in the Arctic regions comes home and writes a narrative, professedly faithful, of his adventures, and decorates it with marvellous inci- | dents which never happened, and stories of wonders which he never saw. You tell this man he has been passing lies upon the public. Oh no, he says, I had not "a dishonest motive." I only meant to make readers wonder.-Milton's mode of substantiating his doctrine is worthy of remark. He makes many references for authority to the Hebrew | Scriptures, but not one to the Christian. The reason is plain, though perhaps he was not aware of it, that the purer moral system which the Christian Lawgiver introduced did not countenance the doctrine. Another argument is so feeble that it may well be concluded no valid argument can be found. If it had been discoverable, would not Milton have found it? He says, "It is universally admitted that feints and stratagems in war, when unaccompanied by perjury or breach of faith, do not fall under the description of falsehood. It is scarcely possible to execute any of the artifices of war without openly uttering the greatest untruths with the indisputable intention of deceiving."" And so, because the "greatest untruths are uttered in conducting one of the most flagitious departments of the most unchristian system in the world, we are told, in a system of Christian Doctrine, that untruths are lawful! it were not easy to determine. But if a man has no right to know the truth-withhold it, but do not utter a lie. A man has no right to know how much property I possess. If, however, he impertinently chooses to ask, what am I to do? Refuse to tell him, says Christian morality. What am I to do? him it is ten times as great as it is, says the morality of Paley. Tell 55. To say that when a man is tempted to employ a falsehood, he is to consider the degree of "inconveniency which results from the want of confidence in such cases,' "1 and to employ the falsehood or not as this degree shall prescribe, is surely to trifle with morality. What is the hope that a man will decide aright, who sets about such a calculation at such a time? Another kind of falsehood which it is said is lawful, is that "to a robber, to conceal your property." A man gets into my house, and desires to know where he shall find my plate. I tell him it is in a chest in such a room, knowing that it is in a closet in another. By such a falsehood I might save my property or possibly my life; but if the prospect of doing this be a sufficient reason for violating the Moral Law, there is no action which we may not lawfully commit. May a person, in order to save his property or life, commit parricide? Every reader says, No. But where is the ground of the distinction? If you may lie for the sake of such advantages, why may you not kill? What makes murder unlawful but that which makes lying unlawful too? No man surely will say that we must make distinctions in the atrocity of such actions, and that, though it is not lawful for the sake of advantage to commit an act of a certain intensity of guilt, yet it is lawful to commit one of a certain gradation less. Such doctrine would be purely gratuitous and unfounded: it would be equivalent to saying that we are at liberty to disobey the Divine Laws when we think fit. The case is very simple: If I may tell a falsehood to a robber in order to save my property, I may commit parricide for the same purpose; for lying and parricide are placed together and jointly condemned2 in the revelation from God. Dr. 56. Then we are told that we may "tell a falsehood to a madman for his own advantage," and this because it is beneficial. Carter may furnish an answer: he speaks of the Female Lunatic Asylum, Salpetrière, in Paris, and says, "The great object to which the views of the officers of La Salpetrière are directed, is to gain the confidence of the patients; and this object is generally attained by gentleness, by appearing to take an in1 Mor. and Pol. Phil., b. 3, p. 1, c. 15. 21 Tim. i. 9, 10. terest in their affairs, by a decision of character every one should use as little of such language equally remote from the extremes of indul- as he can, because it is frequently dangerous gence and severity, and by the most scrupulous language. The man who familiarises himself observance of good faith. Upon this latter, to a departure from literal truth is in danger particular stress seems to be laid by M. Pinel, of departing from it without reason and withwho remarks 'that insane persons, like chil-out excuse. Some of these departures are dren, lose all confidence and all respect if you fail in your word towards them; and they immediately set their ingenuity to work to deceive and circumvent you.' What then becomes of the doctrine of "telling falsehoods to madmen for their own advantage?" It is pleasant thus to find the evidence of experience enforcing the dictates of principle, and that what morality declares to be right, facts declare to be expedient. 57. Persons frequently employ falsehoods to a sick man who cannot recover, lest it should discompose his mind. This is called kindness, although an earnest preparation for death may be at stake upon their speaking the truth. There is a peculiar inconsistency sometimes exhibited on such occasions: the persons who will not discompose a sick man for the sake of his interests in futurity, will discompose him without scruple if he has not made his will. Is a bequest of more consequence to the survivor than a hope full of immortality to the dying man? 58. It is curious to remark how zealously persons reprobate "pious frauds;" that is, lies for the religious benefit of the deceived party, Surely if any reason for employing falsehood be a good one, it is the prospect of effecting religious benefit. How is it then that we so freely condemn these falsehoods, whilst we contend for others which are used for less important purposes? 59. Still not every expression that is at variance with facts is a lie, because there are some expressions in which the speaker does not pretend, and the hearer does not expect, literal truth. Of this class are hyperboles and jests, fables and tales of professed fiction: of this class, too, are parables, such as are employed in the New Testament. In such cases affirmative language is used in the same terms as if the allegations were true, yet as it is known that it does not profess to narrate facts, no lie is uttered. It is the same with some kinds of irony: "Cry aloud," said Elijah to the priests of the idol, “for he is a god, peradventure he sleepeth." And yet, because a given untruth is not a lie, it does not therefore follow that it is innocent: for it is very possible to employ such expressions without any sufficient justification. A man who thinks he can best inculcate virtue through a fable, may write one: he who desires to discountenance an absurdity, may employ irony. Yet 1 Account of the Principal Hospitals in France, &c. like lies; so much like them that both speaker and hearer may reasonably question whether they are lies or not. The lapse from untruths which can deceive no one, to those which are intended to deceive, proceeds by almost imperceptible gradations on the scale of evil : and it is not the part of wisdom to approach the verge of guilt. Nor is it to be forgotten that language, professedly fictitious, is not always understood to be such by those who hear it. This applies especially to the case of children—that is, of mankind during that period of life in which they are acquiring some of their first notions of morality. The boy who hears his father using hyperboles and irony with a grave countenance, probably thinks he has his father's example for telling lies amongst his schoolfellows. which often are not lies, are those which 60. Amongst the indefensible untruths factitious politeness enjoins. Such are compliments and complimentary subscriptions, and many other untruths of expression and of action which pass currently in the world. These are, no doubt, often estimated at their value: the receiver knows that they are base coin though they shine like the good. Now, although it is not to be pretended that such expressions, so estimated, are lies, yet I will venture to affirm that the reader cannot set up for them any tolerable defence; and if he cannot show that they are right, he may be quite sure that they are wrong. A defence has, however, been attempted: "How much is happiness increased by the general adoption of a system of concerted and limited deceit ! He from whose doctrine it flows that we are to be in no case hypocrites, would, in mere manners, reduce us to a degree of barbarism beyond that of the rudest savage." We do not enter here into such questions as whether a man may smile when his friend calls upon him, though he would rather just then that he had stayed away. Whatever the reader may think of these questions, the "system of deceit" which passes in the world cannot be justified by the decision. There is no fear that "a degree of barbarism beyond that of the rudest savage" would ensue, if this system were amended. The first teachers of Christianity, who will not be charged with being in "any case hypocrites," both recommended and practised gentleness and courtesy.1 And as to the increase of happiness which is assumed to result from this system of deceit, the fact is of a very questionable kind. No 1 1 Peter ii. 1; Tit. iii. 2; 1 Peter iii. 8. |