THE CIVIL AND THE COMMON LAW slow and consistent growth. "Time," says Lord Hale, "is the wisest thing under heaven. It is most certain that time and long experi ence is much more ingenious, subtle, and judicious than all the wisest and acutest wits coexisting in the world can be. It dis covers such a variety of emergencies and cases, and such inconvenience in things, that no man would otherwise have imag ined." And Judge Dillon has added to this his own suggestion that, "The value of our system of law, as we now have it, is that it embodies the wisdom of time and experi ence." The last distinction which I shall have time to suggest between these two systems of law, pertains to the relation between the members of the legal profession and their clients on the one hand, and the courts on the other. In civil law countries the lawyer occupies an honorable, but an inconspicuous position. He is educated, as it were, for the government service. He may be rea sonably sure, after completing the extended education required, that he will receive some official position which will keep him from starvation. He is eligible to be a notary's clerk, or have some other like office. If clients come to him, they come to him as they would to an official, and he treats them as the official would treat the ordinary citi zen, in whom he takes no interest save that which his duty requires of him. The at torney is not regarded as the paid agent of his client, but rather as a functionary of the state, rendering a public service for the client, and not otherwise interested in his welfare. Our own experience under the common law system illustrates the difference in the situation in Anglo-Saxon countries. As al ready indicated, the judge is an arbitrator between two contending equals, authorized, it is true, to decide, but having no public function save that of deciding. He is not an administrative officer, nor is he specially charged with any care as to the result, save that controversies should be settled. Now
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in this situation the parties come before him, waging their contest as to which is in the right. They no longer hire champions for wager of battle, but they hire at torneys who enter the field to espouse their respective causes, with all the ingenuity and skill which professional training can give, and all the persistence which the client could feel in his own personal case. Each side takes advantage of every misstep or false stroke of the other, and there is a point ready to pass under every guard that is not rigidly maintained. The attorney ceases to know the law, save so far as law is valuable to his client. He ceases to know the facts, save as those facts bear in his favor. He is the blind, prejudiced, un relenting, and unreasonable champion of a cause which he has espoused for a money consideration. True, there are certain rules of etiquette and propriety which, if he is going to play the game fairly, he will observe with the strictest fidelity. When he gives his word he will keep it, and none will be more scru pulous as to his absolute personal integrity. He will not lie about the law or the facts, but he will exhibit astonishing stupidity at times as to the one and be remarkably ob livious as to the other. In other words, he will stand in the position of one who with personal integrity and high regard for his character, is ready to espouse the cause of the client, right or wrong, and make that cause seem as plausible as possible before the judge and the jury, without any regard whatever as to whether ultimate justice is being achieved in the case or not. In other words, a lawsuit is a judicial combat in which, with observance of the rules of the game, the lawyers representing their re spective clients are fighting for personal victory, regardless of the nature of the con troversy. I think I have fairly stated the facts as they might seem to one who, without any bias one way or the other, was trying to estimate the respective merits of the civil
