56
The Green Bag
all times stands for the individual character and strength of honest and intellectual work, the strength of inde pendence before court or people, that independence upon which everything in a free country must at last depend." The lawyer thus inspired will not cringe. He will respect, but he will not fear, the courts. He will discharge his duty as he sees it, undeterred by clamor of the public or the press. With such composure as he can command, he will await the ultimate judgment of his com munity. He will not abandon his prerogative at the summons of some pamphleteer whose immunity from prosecution is due to the past powerful interventions of the great Erskine and his successors. The press temporarily, even though unintentionally, may con fuse but it will not finally mislead the general estimate of the lawyer follow ing the guidance of an intelligent con science. The lawyer's right to live, and to live by the application of his trained abili ties in the protection of every right and in the maintenance of every defense authorized by the law of the land, is part of our Anglo-Saxon liberties. When that right is surrendered, those liberties also will suffer diminution in periods of popular clamor at times as cruel and as senseless as the raving of wild beasts. Sometimes, as a ground of reproach against lawyers, it is alleged that they are not alert to disclose for prosecution cases of wrongdoing within their knowl edge. Of course they must not com pound felonies, but is it certain that the best interests of society or of the state itself would be promoted by detection and prosecution in every single case of a violation of law? In the "Ideals of the Republic," in which is sympathetically cited the Mas sachusetts Statute of 1780, recommen
ding the government to encourage "good humor" among the people, Mr. Schouler says (p. 204) :— Much may be done by warning, by holding up ideals of duty by encouraging the com munity to keep the right path. But the rod of discipline should not always be brandished nor a culprit's foes or the immune be incited to gleeful vindictiveness. There is not, I suppose, a male reader of this page who has not at some moment of temptation in his life committed a crime of some kind which might have been criminally punished. And whether the offence, more or less heinous, was ever disclosed to others or not, has he not been better in the end by having his own con science left to its secret remorse and repent ance for lifting eventually his better nature? Mr. Schouler' s supposition of a gen eral prevalence of intentional crime is startling, and not so easy of accep tance as would be the hypothesis that without realizing the legal or illegal quality of his act nearly every man some time has incurred some penalty prescribed by the criminal law. "Who can tell how oft he offendeth?" So in the pursuit of his livelihood the wise and conscientious lawyer sometimes may promote the peace of communities, the happiness of families, and the refor mation of wrongdoers, by using his ability and even his influence to. avoid public prosecutions. In so doing, is he faithful to his obligation to the state? I will not take the responsibility of answering, Yes; but his offense, if it be an offense, would not smell rank to Heaven. The law must be maintained and en forced; it must be vindicated, but this must be for the healing of the nation, not for vengeance upon the individual. The Hebrew prophets who declared that "righteousness alone exalteth a nation," proclaimed also the rise of a Son of righteousness "with healing in his wings." The divine requirement is to love mercy as well as to do justly.
