50
The Green Bag
or liberty or reputation or property, or even when assuming new risks of busi ness, will expect from their counsel exclusive regard for their own particu lar interests. But the unwearied con tention over the lawyer's diverse loyal ties has not yet demonstrated that either morality or civilization would gain by relaxation of his legal obligation to in voke for his client any and every appro priate protection afforded by the law of the land, it being understood that the law of the land differs from the moral law generally in being more specific and more exacting. It is true that sometimes apparent injustice may result from particular applications of strict legal defenses such as the statute of limitations, or of frauds, or those concerning usury or married women or infants, or other provisions of positive law as to incompetency, includ ing the ultra vires proceedings of cor porations. Such defenses are discoun tenanced by Hoffman in his Fifty Resolutions. Nevertheless, we submit that every client is entitled to invoke any and every appropriate enactment of the legislature for the general good, and also that in the assertion or protection of such right the client is entitled to invoke and to receive the aid of compe tent counsel. Nor can such right of the client be limited to the comparatively insignificant portion of his interests that may have become involved in litigation. He is entitled to the advice of his solicitor as to what it is lawful for him to undertake; and he may undertake lawfully whatever is not in contraven tion of sound morals or of some concrete rule of law. The moral sense must be respected, but this restriction being faithfully observed, an advocate of indi vidualistic liberty may feel it his duty to assert individual rights in and through any and every way not barred by
statute. Though wide enough for the traditional coach and four a way through or around a faulty statute has been forced or found by many a learned and virtuous predecessor, in the cause of liberty. Whatever is neither malum in se nor malum prohibitum is open to the client's enterprising advance, and nothing is malum prohibitum unless there can be pointed out words of express prohibition. No more dangerous device of tyranny or injustice could be invoked than the extension of a statute to cover cases not embraced within its letter, upon the plea that they are within its spirit. It is not the duty of the lawyer or of a judge to be astute to extend prohibitory provisions. This power, and, if it be a duty, this obligation pertains solely to the legislature. Every citizen, whether lawyer or lay man, undoubtedly owes the duty of loyalty to the law, but who will pretend that this duty generally is regarded as of equal obligation with reference to every statute? Viewed from its source the authority of the fugitive slave law appeared to be supreme, and so it was regarded by Abraham Lincoln, but nevertheless its obligation was denied and defied throughout the North. The Dred Scot decision was flouted by ministers, lay men and lawyers who followed Charles Sumner in the doctrine that no question is settled until it is settled right. A very recent statement of this doctrine is the following from the Outlook of January 2, 1909:— It is not always immoral to violate laws or even to set law at defiance. Sunday-school scholars are constantly exhorted to imitate the example of Daniel, who violated the law which forbade him to worship Jehovah; the men who conducted the underground railroad and permitted slaves to escape were violating the law; yet, history has generally com mended their action. There are times when
