JACOB A. STEIN
Looking for links among Winston Churchill, Lord Chesterfield, Benjamin Franklin, and the modern lawyer.
On December 8, 1941, Winston Churchill dispatched a letter to the Japanese Ambassador announcing that a state of war exists between England and Japan. Churchill�s letter noted that the Japanese had just bombed Singapore and Hong Kong. Therefore, His Majesty�s Ambassador at Tokyo was instructed to inform Japan that a state of war exists between Great Britain and Japan. Churchill ended the letter with these words:
I have the honour to be, with high consideration,
Your obedient servant,
Winston S. Churchill
Churchill commented in his wartime memoirs that �Some people did not like this ceremonial style. But after all when you have to kill a man it costs nothing to be polite.� So, we see that even under the most demanding circumstances a resourceful person can discover opportunities to show civility.
Civility in our lives today is sadly lacking, many would agree. In my own profession, the law, the centuries-old tradition of civil discourse between lawyer and judge appears threatened. But before we discuss further civility and the law, permit me to reach back in time to talk about Lord Chesterfield and Benjamin Franklin. Both were lifelong students of the art of civility. Both had illegitimate sons whom they endeavored to train in the art of civility. And both were disappointed by how things turned out with their sons.
Lord Chesterfield, in real name Philip Dormer Stanhope, was born in London in 1694, 12 years before Benjamin Franklin was born in Boston. Chesterfield was a wealthy member of the English aristocracy. During his career he served in Parliament, as a secretary of state, and as the Lord Lieutenant of Ireland. Early in his career, he was ambassador to the Hague when that was an important diplomatic post. While there, he had a love affair with a woman not of his rank or standing. A son, Philip Stanhope, was born of that affair.
Although Lord Chesterfield was noted in his time for his polished writing style, his diplomatic skills, and his sense of honor, he is remembered now chiefly for the letters to his son, Philip. These were triggered by Lord Chesterfield�s keen interest in civility, manners, and the social graces, and their role in getting what one wants in this world. He wished his son, who had the disadvantage of illegitimacy, to have the advantage of Lord Chesterfield�s experience in the ways of the world. Lord Chesterfield provided tutors to give Philip a thorough grounding in languages, history, travel, and what is now called �political science.� While Philip was engaged in educational travel through Europe, and serving at various minor European diplomatic posts, Lord Chesterfield transmitted to father�s advice on civility, manners, and the social graces in hundreds of letters. These letters, written between 1737-1768, represent what can be called �the worldly philosophy,� a philosophy summarized by Samuel Shellabarger, one of Chesterfield�s biographers:
It is a belief in the supreme desirability of what most men strive for�power, position, wealth, the esteem of one�s associates, the pleasures of the senses�the pursuit and enjoyment of all this to be regulated partly by some code of good form and partly by common sense.... The objectives of worldliness will always commend themselves to that legal fiction, the ordinary prudent man; its value will always seem valuable to 99 per cent of the population; it is the most plausible form of selfishness.
The true man of the world is no doctrinaire and would warmly disclaim the title of worldly. It may often serve his purpose to be considered or consider himself an idealist. But his distinguishing features are the same: he is the adept of compromise, expediency, the unburned bridge, the secret reservation, the ultimate confidence in Mammon. It matters not whether or not he admits these tendencies to himself; they remain characteristic of him. It is unnecessary to point out how large a section of the great and fair in all generations belong to his persuasion. It is one of the most distinguished human categories.
CIVILITY IN ALL ITS FORMS
The lives of Chesterfield and Franklin raise questions of whether there is any significant connection between civility and morality, and whether a high sense of morality could be an impediment in serving up all the half-truths and flattery that go with civility. I find that people whose civility is in the first class are generally relativists when it comes to morality. And it often happens that those whose mission is to do good at all times are impatient and rude to their moral inferiors. Such people do not comprehend the nature of civility as an art form.
Lord Chesterfield included in his letters anecdotes and illustrations to make his point�that one must be attentive at all times to manners�and emphasize, of course, that one must do nothing to be thought a bore. From Bonamy Dobree�s The Letters of Philip Dormer Stanhope, here is one story Chesterfield related concerning that advice:
Many people come into company full of what they intend to say in it themselves, without the least regard to others; and thus charged up to the muzzle are resolved to let it off at any rate. I knew a man who had a story about a gun, which he thought a good one, and that he told it very well. He tried all means in the world to turn the conversation upon guns; but, if he failed in his attempt, he started in his chair, and said he heard a gun fired; but when the company assured him they heard no such thing, he answered, perhaps then I was mistaken; but, however, since we are talking of guns� and then told his story, to the great indignation of the company.
Unknown to Lord Chesterfield, while at one of the minor ambassadorial posts Philip had married a woman well below his own rank and, worse yet, a penniless woman. How unworldly of him. It violated all of Lord Chesterfield�s preachments. Lord Chesterfield did not learn of this until after the death of his son. Philip�s young widow arrived at Lord Chesterfield�s mansion in London, introduced herself, and presented her babe in arms, Lord Chesterfield�s grandson.
Benjamin Franklin came at the subject of civility from a different direction, but, with slight modifications, his view of the world was much the same as Lord Chesterfield�s. Franklin, born in 1706, was the 15th son of a Boston candlemaker. He worked for a while with an older brother as a printer�s apprentice. Franklin could not get along with his brother, his father, or anyone else. As a very young man he decided to leave home and start over. He took a slow boat to Philadelphia and arrived with only a few cents in his pocket. He decided that if he wanted to get ahead he must rid himself of this contrary element in his nature by studying how to get along with people. He became a lifelong student of civility, manners, manipulation, and flattery, just as Lord Chesterfield had. Young Franklin set up a schedule. He would devote time to flattering his way into the circles he wished to enter in order to improve himself by the things he would learn from good company. Franklin also had an illegitimate son, William. When Franklin married, the illegitimate son was raised as if he were born of the marriage.
Franklin, in time, became Philadelphia�s leading citizen. In 1757, the colonies sent Franklin to London, where he remained until 1775, trying to work things out between the British and the Colonies. While in London, he pulled strings to have his son named as the King�s representative for New Jersey. When war was declared Franklin�s son went over to the British. This was a source of great embarrassment to Franklin. He and his son were never to repair the breach.
The difference between Franklin and Lord Chesterfield may be that Franklin was optimistic concerning man�s capacity for self-improvement. Chesterfield, like most people of his time, believed that the bad generally overcame the good and that people chose what was best for them when a choice was to be made. That is the way it was and ever would be. Franklin, to the contrary, felt the breeze that would convert itself into the tornado that became the French Revolution. He saw science and rationality as the solution to man�s problems.
I wonder whether, during the 20 years when both Chesterfield and Franklin were living in London, they ever met. There is no record of such a meeting. If they had what would they have talked about? Franklin did not want a break with England and Lord Chesterfield was very sympathetic with the claims of the colonies. Chesterfield died in 1773, before the American Revolution�an event he warned against, in a most civil tone. Franklin outlived him by 17 years.
CIVILITY AND THE LAW
Please forgive this discursive ramble, as I have been waiting for a time and place to talk about Lord Chesterfield and Benjamin Franklin and civility, like the man in Chesterfield�s anecdote who had a compulsion to speak about guns.
Now on to civility and the law. The legal profession has produced an abundance of writing on civility, commenting on the need for civility, the lack of civility, the reasons for incivility, and even the need for a published code of civility.
The reasons for the lack of civility are: 1) the legal community is so large that the lawyers do not know each other anymore, and treat each other as strangers out to do harm to each other; 2) the stakes in litigation are much higher than they used to be. Clients cannot afford to lose and press their lawyers to do whatever is necessary to win; and 3) the tradition of civility that used to be transmitted to young lawyers is gone. Young lawyers jump around from firm to firm in search of career advantages. They do not stay in one firm long enough to find a worthwhile role model.
If these are the reasons the legal profession is becoming increasingly uncivil, how best to correct the problem? Many jurisdictions have adopted a written civility code for lawyers, but I question the value of such codes. I believe incivility at the trial bar is easily controlled by the trial judge. There are some judges who have no trouble with lawyers. Not only are the lawyers well behaved before these judges, the lawyers enjoy engaging in the traditional flattery that is expected of them when addressing the Court.
There are other judges who are always in trouble with lawyers. Why is this? Lawyers quickly learn what a judge will put up with and which judges have such a sense of dignity that shameful conduct before such a judge is unthinkable. A judge who invariably shows up late to take the bench will find his or her courtroom lacking in civility. A judge who is unprepared will have civility problems. A judge who loses his or her temper, or who is undisciplined, will see lawyers acting in a similar manner.
Judging is a demanding occupation. It requires good manners, promptness in ruling, and the ability to listen to nonsense from lawyers and witnesses, without interruption. A judge must understand that the flattery of counsel directed toward the judge and occasionally flattery directed by the judge to counsel is mechanical rather than based on the merits. One observer has said that even an 18th-century gallant, seeking to persuade a difficult lady to yield to his advances, would not abase himself as much as counsel does towards the judge. The words frequently used are: �Your Honor has put it so much better than I can�; �Your Honor is, as always, very helpful�; �As Your Honor knows�; and, of course, the inevitable �If Your Honor pleases.�
There was a local judge who enjoyed this two-way traffic in flattery. He might say to the defendant, �Mr. Jones, your lawyer has said everything that could possibly be said on your behalf. Your lawyer is one of the finest, most competent members of our bar.� The lawyer might then respond, �Your Honor is very patient and sensitive to these delicate issues.� This particular judge had two motives in mind when praising lawyers. He wanted to help the lawyer in the eyes of his client and he wanted to provide some spending money for the court reporter. When the praise of the lawyer is effusive the lawyer invariably orders a copy of the transcript from the court reporter�for which the court reporter charges $5.00 a page.
There are, however, a few judges who appear to object to the tradition. This is a pity, for without the judge to guide the process, the tradition of civility is lost. When I was much younger, I was before one of these judges. He had the habit of saying to counsel, �Don�t say �As your Honor knows.� Don�t repeat �If the court pleases.� It is a waste of time.� I never used this type of mechanical flattery again before this judge�I never imputed to him the slightest knowledge of the law. And I never won a case in front of him.
Dobree, Bonamy. The Letters of Philip Dormer Stanhope, Fourth Earl of Chesterfield (six volumes). London: Eyere & Spottiswoode, 1932. Van Doren, Carl. Benjamin Franklin: A Biography. New York: Viking Press, 1938.
Jacob A. Stein (CC �75) is a Partner with Stein, Mitchell & Mezines.
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