The daily phoenix. [volume] (Columbia, S.C.) 1865-1878, 1872-01-05

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Of the court. He described tho relations
between the court aud tho bar ss those
OF trust and confidence The court said
he relies upon the honor and integrity of
the practitioners, and every violation OF
its confidence was in contempt. He
spoke in commendatory terms of the
conduct of MIR. Wilson, in promptly and
politely informing the court what lie
knew concerning the abaence of the pri-
soner, and denounced that of Col.
McMasssr as unbeoomipg any honorable
practitioner OF tho court. Such con-
duct. said he. il it does not meet the pu.
nIshment OF tho court, will certainly
elicit the indignant condemnation of the
community. It is q common accusation
by the masses against the legal fraterni-
ty. he said, that they were habituated to
acts OF ohioanery and petty and dishon.
orable devices to attain their ends, aud
he hoped the court would not give cause
for sucl charges by failing to punish
guilty offender.
Mr.. John Waties, counsel for Col.
McMaster, closed tho argument. He
said:
MAY 1T PLEASE YoUR HoNoRs: The
question for your consideration here is
one OF grave Importance, indeed, to the
respondent But, reaching in it's conse.
quences far beyond the individual and
far beyond the present hour. it concerns
every man in this chamber-every citi-
zen OF this commonwealth-aye, Of the
whole civilized world wherever courts of
justice exist 1t concerns myself, and
all others of the legal fraternity, as at
torneys and officers of this court, as
deeply, il not as directly, as it does the
attorney now charged with contempt;
anu IL concerns every citizen as deeply
or moro 30 than 1t does the members of
our profession. It involves the delicate,
responsible and confidential relations OF
attorney and client. the power and au.
tnorlty OF the bench, and tho rights, du.
ties and privileges OF the bar. The So
luton Of this question is now presented
to the court, and it is for you to-day to
decide, may it please your Honors. not
only the case in hand, but to declare and
define the rules which shall hereafter
govern tho hitherto sucred reletiops of
client and attorney. It is on account of
the magnitude Of the issues involved, ns
well as IN support of the return to the
rule, and In vindicatiUn of the course of
Col. McA1aster, the respondent, whom I
IN part represent, tiiut hnvc 70 ,.sk the
indulgence of the court whilst entleayor-
ing To express my views. And, may it
please the court, propose to discuss
THIS subject as far III possible on legal
grounds. My first aim will DO to show
tho sud1clency of tho return to the rulo.
What does the rulo reaniru? It de-
nands, first. thut he show cnuse "why
his name should not be stricken from
the rolls OF attorneys of this court for
contempt, for refusing to st,.ts to the
court the whereabouts Of his client. Ed
ward L. Avery. for whom bail had been
taken ut the request Of said MoMastrr" "
How does respondent reply? First.
he utterly disclaims and denies apy in.
tention to show disrespect or contempt
to the court by his refusal to answer.
His disclaimer, may it please your Ho.
nora, ought of itself to go a great wuy in
purging him from any contempt: and
doubtless, tho court is satisfied that he
at least intended none.
But this respondent justifies his re-
iusal to answer upon the broni uronnd
that the court had no right to demand an
answer; or. in other words, that the
court hnd no right to put the question
AND that. II there was no authority in
the court to demand an answer. csrtainlv
thero was no contempt on his part to re.
fuse to give one.
Now, before discussing the legal rights
OF the bench and bar, let us first dis
pose OF this question. Suppose, for the
sake Of argument, that tue question pro-
pounded was legal and legitimate, bnt
that the respondent honestly believed
that 1t was not, aud that ho was justified
IN refusing to answer, would your
Honors hold him in contempt for mere
error III Judgment? Will this court. or
any Other court, strike from its rolls an
attorney who honestly and conscien-
tiously acts for the best interests of his
client, even though tho court should
hold that lie was mistaken ns to his rights
and privileges? Surely not. Yet. to
find this respondent guilty of contempt.
your Honors must hold. fret. that the
court was authorized to demand of him.
as an attorney, an answer to tho cues
ton; second, that un honest error of
Judgment on his part was 10 excuse for
his refusal to answer; third, that his
highest and first duty, as MI attorney.
was not to his client; and, fourth, that
nc was not honest and conscientious in
discharge of his duty to his client.
Now, Us to ths right of the court to
demand an answer to the question. On
what principle can the court claim the
right? Is it not contrary to principle?
Is 1t not the province of the court to
prevent an attorney from disclosing the
secrets or his client, .ather than to in-
duco him, or, worse still, to force him.
TO disclose them? What does Mr.. Green.
leaf sny on this subject? / read from l
treenleaf on Evidence. page 33l: "What
he has learned as counsel, solicitor or
attorney, he IL not obliged or permitted
TO disclose. l. is n rule OF INV for pro-
lection Of client" And vet here we
havo the court demanding OF an attorney
the whereabouts OF his clicnt-a fact
which said attorney could only haze
learned from sud client, and fact he
was not only not obliged to disclose, but
was not permitted to disclose. Again