James Durham and Baxter on lawyers and the dating of the Ten Commandment Lectures

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  1. NaphtaliPress

    NaphtaliPress Administrator Staff Member

    File this under something few people are interested in (but, it's what I do, as my favorite saying goes, it is a shame not to know the whole of a small thing).
    Since James Durham's Lectures on the Ten Commandments were edited and published after his death in 1675, there is no exact dating of when he delivered these in Glasgow in the 1650s. However, as I am re-editing the lectures for a new edition I discovered a reference I missed back when I was working on what would be the 2002 edition. Back then it was not possible to search Early English Books in text based versions of many of their 17th century books. After hitting on the right common words I narrowed the reference to Baxter, someone Durham cites a number of times in his works.
    Durham remarks on lawyers in his short lecture on the 9th commandment:
    And as to the first point here about advocates, it is to be regretted (as a great divine in the neighbor church has most pathetically, according to his manner, lately done) as a sad matter, that any known unrighteous cause should have a professed Christian in the face of a Christian judicatory, to defend it; but incomparably more sad, that almost every unjust cause should find a patron and that no contentious, malicious person should be more ready to do wrong, than some lawyers to defend him for a (dear bought) fee!​

    This is almost without doubt referring to Richard Baxter's “A Sermon of the Absolute Dominion of God-Redeemer; and the necessity of being devoted and living to him,” in True Christianity: or, Christs absolute dominion, and mans necessary selfe-resignation and subjection. In two assize sermons preached at Worcester (London: Nevill Simmons, 1655 [sic] 1654). George Thomason in his copy made the correction and noted obtaining this work on October 11, 1654. See the text matching Durham’s description in Three Treatises Tending to Awaken Secure Sinners (1656), 66–69.

    This dates the lecture series on the Ten Commandments as nearing its end as early as late 1654 or sometime in early 1655, assuming Durham was commenting based upon the first printing of the sermon obtained fairly quickly after publication and not a later printing such as in the Three Treatises of 1656. Cf. George Thomason and British Museum (Thomason Collection), Catalogue of the Pamphlets, Books, Newspapers, and Manuscripts Relating to the Civil War, the Commonwealth, and Restoration, volume 2 (Printed by the order of the Trustees of the British Museum, 1908), 85.

    Assuming the earliest date this would put the series as occurring in 1654, assuming weekly lectures (my guess is the material is not extensive enough to have streched back into 1653). Durham began his ministry in Glasgow probably preaching his first sermon on 'his ordinary' which was Song of Solomon, October 19, 1651. Song of Solomon chapter one had been his text when he preached the prior year as chaplain on and off before the young Charles II or where he happened to be when not attending the King (in April in Glasgow he preached, and one Lord's Day Cromwell suddenly appeared, and he chastised the invader publicly, April 19, 1651). See The James Durham MSS III: James Durham’s 228 Sermons on Song of Solomon 2–8," The Confessional Presbyterian 13 (2017): 229.
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  2. earl40

    earl40 Puritan Board Professor

    Times have not change but for the worse I am afraid, at least in the USA.

    How a defense lawyer attempts to get an acquittal, knowing his client is guilty, is beyond me.

    Of course prosecutors over charging is no less sin either.​
  3. TylerRay

    TylerRay Puritan Board Senior

    Good on ya, Chris!
  4. Ask Mr. Religion

    Ask Mr. Religion Flatly Unflappable

    Whether the defense attorney knows with certainty or not is not really relevant to the legal process.

    The accused is presumed innocent per the US Constitution. The accused is under no obligation to prove otherwise as the burden rests with the prosecution. The attorney's job is to mount the best possible defense, which of course, is constrained by law and professional obligations. For example, the defense attorney cannot lead with evidence that he or she knows to be false.

    Defense attorneys are obliged to do their sworn duty. Doing one's duty under the civil law is important. If we do not like the law, there are means available to change it.

    That said, I am not an attorney, so perhaps @VictorBravo will pass by and weigh in. ;)
  5. Contra_Mundum

    Contra_Mundum Pilgrim, Alien, Stranger Staff Member

    Is there any kind of argument in favor of forcing those with power to punish, fine, jail, and even kill, to make their case for imposing punitive judgments?

    Seems to me argument against lawyers for the defense as a rule, regardless of our first or last inclinations, opens a much worse door for manipulations by prosecutorial interests. A lawyer who knows his client's guilt, and who lies in his defense is a low-life (even if he lives the high-life). In case of the client's guilt, you can say: he ought to work to get some factor considered in the judgment, or seek mercy; or if he sincerely believes the law is unjust, put the law on trial. The lawyer who actually knows where the body is buried should be jailed himself as accessory. I think you have to grant the inevitability of shysters, to allow for those who will defend the innocent, and keep the State honest (a little!).

    The alternative seems rather undesirable: the State, that decides what crimes are, also defines guilt and penalty. If no one forces it to make a case, then its word is law, every time. "Oh, you say you're innocent? Sure you are--not, ever," unless the prosecution itself grows a conscience of sorts.

    Certainly, true criminals deserve the justice they get, and sometimes more, and sometimes less. And all's fair, until it's you in the hot seat. And those who can't bear to think that the State is susceptible (at least!) to corruption, are on the road to tyranny.
  6. VictorBravo

    VictorBravo Administrator Staff Member

    As a fairly high-profile (for my little community) criminal defense lawyer who is also known as a Christian, I often encounter questions similar to Earl's statement. My lawyer mind wants to say, "assumes facts not in evidence." But I understand the potential quandry and, in fact, I wrestle with the issue of my duties nearly every day.

    I start with this from Romans:

    Rom 13:3 For rulers are not a terror to good works, but to the evil. Wilt thou then not be afraid of the power? do that which is good, and thou shalt have praise of the same:

    4 For he is the minister of God to thee for good. But if thou do that which is evil, be afraid; for he beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doeth evil.

    The ruler or magistrate is indeed given to us by God to enforce order, encourage good behavior, and punish bad behavior. But who is the ruler?

    My answer, in the criminal law context, is the whole system, from the legistature and courts, the local police officer, the prosecuting attorney, and the defense attorney, down to probation officers and court-appointed counselors.

    My daily counterpart is the prosecutor. He holds a powerful sword. At his disposal are police officers, investigators, legal assistants, the weight of the law of probable cause and numerous technical provisions of the law that allow him, on his signature, to hold someone in jail. He is accountable to the people who elected him, and also to the Supreme Court of our State.

    I also am given a sword. It's a little one, but it is pointed at the prosecutor. I am actually ordered by a judge (one of the "rulers") to do certain things when he or she appoints me to a case. The primary task I have is to hold the prosecutor in check. I'm accountable to the Supreme Court and to the state bar association to do my job.

    I am not a finder of fact. It is a rare thing for me to "know" that my client is guilty. It's not my job to know--that is for a jury. If I go around usurping the jury's role, then I have violated my own duties placed upon me by a superior.

    I've had numerous murder cases, and not once has my client told me, "I murdered him." I've had outright denials, or admissions that he did something that was not intentional, or, in one case, he was a peripheral who got caught up in going along with a scheme that resulted in another's death. Is it really proper for me, as his appointed advocate, to think, "well, I'm not going to work on his case because I think he is guilty"?

    The reality of criminal practice is that it is rare for a defense attorney to get to a point of trying for an acquittal. 90%+ get settled on lesser charges or penalties. It is common for me to look at a case charged as a serious felony and see a pretty good defense, only to have the prosecutor come back with an offer too good to pass up.

    There is a utilitarian bargain at work. It is not unusual for me to get a case with a badly botched search warrant application. I draft a suppression motion on the client's behalf. The rub is that he will have to stay in jail two months before we have an available hearing date. The prosecutor reads my motion and offers immediate release, credit for time served, on a guilty plea to a lesser felony. More often than not, the offer is accepted. Sometimes the guilty plea is to a charge that he did not actually commit but will acknowledge "in the interests of justice." (This is allowed in our jurisdiction).

    One real life example of how I can't "know" my client's guilt from a couple years ago. I was assigned a case in which my client confessed to an investigator that she gave drugs to a minor boy. When I first met her, she acknowledged the confession to me, too. She was facing more than 10 years in prison. What can a defense lawyer do with a full confession like that?

    Something did not seem right. I listened to the investigator's interview. He was very skilled at coercive techniques. My client sounded like a zombie. I started digging. The youth she was supposed to have given drugs to had run away to Montana. No other witnesses came forward.

    There is a corpus delecti doctrine that requires independent evidence of a crime when the only thing the State has is a confession. That meant, at least, some witness had to say drugs were delivered. The prosecutor kept making offers because he didn't have the independent evidence: how about 5 years? 3 years? Year and a day with 2 years probation?

    Meanwhile, I kept meeting with her, probing her confession. It finally came out that she was worried about her 12 year old niece getting into trouble because her niece had taken the drugs from the medicine cabinet and given them to the boy. Bingo. False confession.

    The end result was I found the boy in a youth detention center in Montana. I arranged a joint telephonic interview with the prosecutor. He heard the boy's recollection: the niece gave him the drugs, my client was asleep in the bedroom.

    End result, dismissal of the charges.

    If I had prejudged my client's case and neglected my duties, she'd be in prison right now for something she hadn't done, because of an over-zealous police officer and a lazy defense attorney.

    Of course, I could go on and on, but I have jail appointments to make right now.
  7. earl40

    earl40 Puritan Board Professor

    I appreciate all the responses given. :) I was responding to the part of the quote here...."but incomparably more sad, that almost every unjust cause should find a patron and that no contentious, malicious person should be more ready to do wrong, than some lawyers to defend him for a (dear bought) fee!"

    Of course I know of a person who switched sides from prosecution to defense, and my mother asked him two questions. The first question was "Are all your clients guilty?" He said yes each and every one. The second was "Why do you defend them then?" His answer was they pay a lot more money than the state. Such is the life of a NY attorney in the city.

    Victor do you defend a person you know is guilty after you examine all the evidence in the disclosure, and the evidence convinces you of his or hers guilt?
  8. VictorBravo

    VictorBravo Administrator Staff Member

    Earl, I defend them because a higher (and God-ordained) authority has ordered me to do so. But defense encompasses many things, ranging from examining and challenging the evidence to simply counseling a sinner caught in the bonds of justice.

    I always look at the evidence disclosed and evaluate the strength of the case on behalf of my client. Sometimes the evidence is a "slam dunk" for the prosecutor. In that case, I tell my client that the State has very strong evidence, the likelihood of prevailing at trial is near zero, and, if we go to trial, the State may add enhancements to the penalty which would make the outcome much worse.

    Then we work on mitigation.

    Even when guilt is clear, there is a lot to probe and question. Sometimes I tell clients that the case is like being in a burning airplane, and I'm trying to make the crash less harsh.

    The law allows for mitigation, my duties before the Court demand I investigate and argue for it when facts support it. Even when guilt is clear, our laws demand due process and someone acting to restrain a prosecutor (a mere man or woman subject to passions).

    So, yes, I defend them. And again, I do not "know" they are guilty. I only know the relative strengths of the evidence.
  9. VictorBravo

    VictorBravo Administrator Staff Member

    BTW, Earl, as for your acquaintance in NYC, part of me says it sounds like a typical New York response.

    But, yes, I have met attorneys who grub for the dollar. I don't like them. They have their own reward.
  10. JimmyH

    JimmyH Puritan Board Junior

    Perhaps this is off topic, perhaps not ..... What gets me as the not infrequent revelations that someone has served decades in prison for a crime they didn't commit, and the prosecutors and sometimes the police as well knew there was evidence that may have given a reasonable doubt, or even cleared them of the charges, but withheld said evidence.
    In those cases I think the prosecutor and police should serve time. The famous Pitts and Lee case, here in Florida is a good example, but there are many, many more.
  11. earl40

    earl40 Puritan Board Professor

    Thank you Victor. I understand and appreciate men like you who try to do the right thing. I am sad our laws make you do things I know you must wrestle with. I simply could not do such, though appreciate men like you.
  12. VictorBravo

    VictorBravo Administrator Staff Member

    Thanks, Earl. Just to be clear, the things I wrestle with are not because the law makes me do them. I signed on for this. Sometimes things take a toll, but I strive to do what I ought so I can have a clear conscience at the end of the day. Committing fraud against the court is a big no-no (as in disbarment or criminal sanctions), and that is pretty easy to avoid if one is mindful.

    What I wrestle with daily is my own inclination and temptation to let things slide, to fall into a trap of putting up appearances without substance, etc. I think that goes with most any occupation.
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