instance had the shamelessness of such a traditionless and
undisciplined class as the early factory organisers. It has never
had the dull incoherent wickedness of the sort of men who exploit
drunkenness and the turf. It offends within limits. Barristers can
be, and are, disbarred. But it is now a
profession extraordinarily
out of date; its code of honour derives from a time of cruder and
lower
conceptions of human
relationship. It apprehends the State as
a mere "ring" kept about private disputations; it has not begun to
move towards the modern
conception of the
collectiveenterprise as
the determining criterion of human conduct. It sees its business as
a mere play upon the rules of a game between man and man, or between
men and men. They haggle, they
dispute, they
inflict and suffer
wrongs, they evade dues, and are
liable or entitled to penalties and
compensations. The
primary business of the law is held to be
decision in these wrangles, and as wrangling is subject to artistic
elaboration, the business of the barrister is the business of a
professional wrangler; he is a bravo in wig and gown who fights the
duels of ordinary men because they are
incapable, very largely on
account of the complexities of legal
procedure, of fighting for
themselves. His business is never to
explore any
fundamental right
in the matter. His business is to say all that can be said for his
client, and to
conceal or minimise
whatever can be said against his
client. The successful promoted
advocate, who in Britain and the
United States of America is the judge, and whose habits and
interests all
incline him to
disregard the realities of the case in
favour of the points in the forensic game, then adjudicates upon the
contest. . . .
Now this condition of things is clearly incompatible with the modern
conception of the world as becoming a
divine kingdom. When the
world is
openly and confessedly the kingdom of God, the law court
will exist only to
adjust the differing views of men as to the
manner of their service to God; the only right of action one man
will have against another will be that he has been prevented or
hampered or distressed by the other in serving God. The idea of the
law court will have changed entirely from a place of
dispute,
exaction and
vengeance, to a place of
adjustment. The individual or
some state organisation will plead ON BEHALF OF THE COMMON GOOD
either against some state official or state
regulation, or against
the actions or inaction of another individual. This is the only
sort of legal proceedings compatible with the broad beliefs of the
new faith. . . . Every religion that becomes ascendant, in so far
as it is not otherworldly, must
necessarily set its stamp upon the
methods and
administration of the law. That this was not the case
with Christianity is one of the many contributory aspects that lead
one to the
conviction that it was not Christianity that took
possession of the Roman empire, but an
imperialadventurer who took
possession of an all too complaisant Christianity.
Reverting now from these generalisations to the problem of the
religious from which they arose, it will have become
evident that
the
essential work of anyone who is conversant with the existing
practice and
literature of the law and whose natural abilities are
forensic, will lie in the direction of reconstructing the theory and
practice of the law in
harmony with modern
conceptions, of making
that theory and practice clear and plain to ordinary men, of
reforming the abuses of the
profession by
working for the separation
of bar and judiciary, for the amalgamation of the solicitors and the
barristers, and the like needed reforms. These are matters that
will probably only be
properly set right by a quickening of
conscience among
lawyers themselves. Of no class of men is the help
and service so necessary to the practical
establishment of God's
kingdom, as of men
learned and
experienced in the law. And there is
no reason why for the present an
advocate should not continue to
plead in the courts, provided he does his
utmost only to handle
cases in which he believes he can serve the right. Few righteous
cases are ill-served by a frank
disposition on the part of
lawyerand
client to put everything before the court. Thereby of course
there arises a difficult case of
conscience. What if a
lawyer,
believing his
client to be in the right, discovers him to be in the
wrong? He cannot throw up the case unless he has been scandalously
deceived, because so he would
betray the confidence his
client has
put in him to "see him through." He has a right to "give himself
away," but not to "give away" his
client in this fashion. If he has
a chance of a private
consultation I think he ought to do his best
to make his
client admit the truth of the case and give in, but
failing this he has no right to be
virtuous on
behalf of another.
No man may play God to another; he may
remonstrate, but that is the
limit of his right. He must respect a confidence, even if it is
purely implicit and
involuntary. I admit that here the barrister is
in a cleft stick, and that he must see the business through
according to the confidence his
client has put in him--and
afterwards be as sorry as he may be if an
injustice ensues. And
also I would suggest a
lawyer may with a fairly good
consciencedefend a
guilty man as if he were
innocent, to save him from
unjustly heavy penalties. . . .
This
comparatively full
discussion of the barrister's problem has
been embarked upon because it does bring in, in a very typical
fashion, just those uncertainties and imperfections that
abound in
real life. Religious
conviction gives us a general direction, but
it stands aside from many of these en
tangled struggles in the jungle
of
conscience. Practice is often easier than a rule. In practice a
lawyer will know far more
accurately than a hypothetical case can
indicate, how far he is bound to see his
client through, and how far
he may play the
keeper of his
client's
conscience. And nearly every
day there happens
instances where the most subtle casuistry will
fail and the finger of
conscience point unhesitatingly. One may
have worried long in the
preparation and preliminaries of the issue,
one may bring the case at last into the final court of
conscience in
an
apparentlyhopelesstangle. Then suddenly comes decision.
The
procedure of that silent, lit, and empty court in which a man
states his case to God, is very simple and perfect. The excuses and
the special pleading
shrivel and
vanish. In a little while the case
lies bare and plain.
8. THE OATH OF ALLEGIANCE
The question of oaths of
allegiance, acts of acquiescence in
existing governments, and the like, is one that arises at once with
the
acceptance of God as the
supreme and real King of the Earth. At
the worst Caesar is a usurper, a satrap claiming to be
sovereign; at
the best he is provisional. Modern casuistry makes no great trouble
for the believing public official. The chief business of any
believer is to do the work for which he is best fitted, and since
all state affairs are to become the affairs of God's kingdom it is
of
primary importance that they should come into the hands of God's
servants. It is scarcely less necessary to a believing man with
administrative gifts that he should be in the public
administration,
than that he should breathe and eat. And
whatever oath or the like
to usurper church or usurper king has been set up to bar
access to
service, is an oath
imposed under duress. If it cannot be avoided
it must be taken rather than that a man should become unserviceable.
All such oaths are
unfair and foolish things. They
exclude no
scoundrels; they are appeals to
superstition. Whenever an
opportunity occurs for the
abolition of an oath, the servant of God
will seize it, but where the oath is unavoidable he will take it.
The service of God is not to
achieve a
delicateconsistency of
statement; it is to do as much as one can of God's work.
9. THE PRIEST AND THE CREED
It may be doubted if this line of
reasoningregarding the official
and his oath can be
extended to excuse the
priest or pledged
minister of religion who finds that faith in the true God has ousted
his
formal beliefs.
This has been a
frequent and subtle moral problem in the
intellectual life of the last hundred years. It has been
increasingly difficult for any class of
reading, talking, and
discussing people such as are the bulk of the
priesthoods of the
Christian churches to escape
hearing and
reading the accumulated
criticism of the Trinitarian
theology and of the popularly accepted
story of man's fall and
salvation. Some have no doubt defeated this
universal and insidious
critical attack entirely, and honestly
established themselves in a right-down
acceptance of the articles
and disciplines to which they have subscribed and of the creeds they
profess and repeat. Some have recanted and
abandoned their
positions in the
priesthood. But a great number have neither
resisted the bacillus of
criticism nor left the churches to which
they are attached. They have adopted compromises, they have
qualified their creeds with modifying footnotes of
essentialrepudiation; they have
decided that plain statements are metaphors