ing counsel, for which a new trial would inevitably have been awarded in the wild and woolly West, even if they did not lead to a competition of agility in the drawing of weapons outside the court-room after adjournment. The lawyers of the East, clad in black cloth and decorous boiled shirts and white cravats, are apparently a great deal more reckless in professional speech, and with impunity, than their brethren of the West, in their flannel shirt-sleeves and with no neckties. This seems quite anomalous. Many an Eastern lawyer excites the admira tion of the populace and of a sensational class of legal biographers by indulgence in "scathing sarcasm" and " appalling denun ciation," which would simply get the other side a new trial in the States which we are too apt to regard as less cultured and polite. I believe that the field of new trials for intemperate utterances of counsel has never been systematically gleaned, and that going over it may afford some amusement and pos sibly some useful instruction to the pro fession. The points of error of counsel in the particular in question are generally their commenting on evidence which they assume to be in the case, but which is not; their unwarrantable abuse and inflammatory lan guage; and their remarking upon the failure of prisoners to take the stand on their own behalf. The privileges of counsel in comment are well stated in an early case (Mitchum v. State, 11 Ga. 615) : " The counsel represents and is a substitute for his client; whatever therefore the client may do in the manage ment of his cause may be done by his coun sel. The largest and most liberal freedom of speech is allowed, and the law protects him in it. The right of discussing the merits of the cause, both as to the law and the facts, is unabridged. The range of dis cussion is wide. He may be heard in argument upon every question of law. In his addresses to the jury it is his privilege to descant upon the facts proved or admitted
in the pleadings; to arraign the conduct of the parties; impugn, excuse, justify, or con demn motives, so far as they are developed in evidence; assail the credibility of witnesses when it is impeached by direct evidence, or by the inconsistency or incoherence of their testimony, their manner of testifying, their appearance on the stand, or by circumstan ces. His illustrations may be as various as the resources of his genius; his argumenta tion as full and profound as his learning can make it; and he may, if he will, give play to his wit or wings to his imagination." The foregoing language of Nisbet, J., must have been admired by Fowler, J.; for in Tucker v. Henniker, 41 N. H. 323, he repro duced it as his own, without quotation marks or credit, with more, to the extent in all of a page, — " plagiarized " it, as Judge Thomp son says (i Thomp. Trials, p. 747, note), although I do not find the " slight omissions and rhetorical improvements " which that eminent author detects. In respect to this very remarkable coincidence one could hardly adopt the poet's expression, — "Vainly the fowler's eye Might mark thy distant flight to do thee wrong.
Although it is not precisely germane to my topic, I cannot forbear quoting Judge Nisbet's admirable and eloquent vindication of the lawyer, in the same opinion. He says : "It is not foreign to the subject to say that it is the duty of counsel to guard, by the most scrupulous propriety of demeanor, in the conduct of a cause, the dignity and honor of the profession. Connected as it is most intimately with the administration of justice, it should be protected most vigi lantly from falling into popular disrepute. It ought, as I verily believe it does, to com mand the respect of the wise and the rever ence of the good. Power and place, heredity, wealth, stupidity in high social position, and even genius, pandering to a popular taste for caricature, jealous of the power which it wields upon governments, have labored to degrade it. Still in this country and in
