the earliest on record-it does not appear that the pleaders are not the parties themselves though we may infer from the liquidated amount of the fine in contest -the two talents deposited beside them on the ground-that the Greeks must already, at the period of the siege of Troy, have made considerable progress in at least penal legislation. It may, however, be well supposed that, what with the codes, still in some respects unrivaled, subsequently promulgated by their several lawgivers, and the oratorical genius of that gifted race-the artifices et doctores dicendi, as they have been distinguished by no less a judge than Cicero-with these peculiar advantages, we say, forensic pleading would not have been slow to come into juridical use.

Be this as it may, the account is, that Pericles was the first to introduce oratory into the proceedings of the Athenian Bar. Which, possibly, means no more than that he was the most famous up to his time, and thus, by a well-known oversight of popular tradition, has impersonated or effaced the name of his predecessors, as Hercules did all the anterior heroes. Henceforth, instead of presenting themselves a statement of their case, drawn up for them, as was the practice, by the jurisperiti we have characterized, the parties were accustomed to bring to their aid, at the trial, some of the celebrated orators of the day. Among the earliest thus engaged, were Themistocles, Pericles and Aristides; who delivered their own compositions. The great advantage of eloquence, in litigation, once discovered, the idea naturally soon occurred of applying it in written arguments, to be recited-as thitherto the bare statement-by the parties themselves. Of these we have still some fine examples among the extant orations of Isaeus. Antiphon was the first who composed these rhetorical discourses without speaking them. Both the parts were frequently united; as by Lysias, Isocrates and Demosthenes.

An office peculiarly prone to abuse could hardly be pure in its rude infancy. Demosthenes is known to have written orations for each of the parties in the same cause. More reprehensible still was his reply to Polus, an actor, who

boasted to him of having earned a talent by two day's speaking: I have earned four, by as many hours' silence. Isocrates was repeatedly attached for breach of the laws, in practicing a species of dialectical chicanery.

This we adduce to put our own "sharp practitioners" in respectable company. Eschines, who confined himself to the writing department of the profession, discharged it much more honorably; never composing but defences, and for persons unjustly accused.

It was

Excepting the innovation of oratory, the Bar of Athens continued at this period under the ancient regulations of Draco and Solon; according to which no one was permitted to practice who was not of free condition, of respectable social position, and of unexceptionable_moral character public and private. then the maxim (as it always should be the ministry) of the Advocate to labor not for the success of the cause, but for the prevalence of truth and justice. This he was even sworn to, at the opening of each trial. Whence the answer of Pericles-since passed into a proverb-to a friend who solicited him to strain a point in his favor: amicus usque ad

ARAS.

In time, the new forensic element necessitated new regulation both at Athens and Sparta. The orators were prohibited all flights of declamation tending to excite the pity or indignation of the (popular) judges; and even the magistrates were forbidden to look on the prisoner during any such appeal. The occasion of this queer inhibition is curious as itself, and occurred in the defence, by the orator Hyperides, of the celebrated courtezan, Phryne, tried on a charge of impiety before the Areopagus. The ingenious advocate, perceiving that his client was likely to be condemned, led her forth to the centre of the court, and tore away the kerchief that covered and confined her bosom-by the spectacle of whose volup tuous charms, still more, we may believe, than the touching supplications of the orator, the hoary* Judges were so softened through eye and ear, through soul and sense, that the tide soon turned, and the fair free-thinker was unanimously acquit

ted.* Let us beware of inferring from this fact, or fable, a barbarous simplicity of manners in a people who had then carried every intellectual and aesthetical art to a perfection which modern nations, even the most advanced, have still to reach. It was rather a peculiar sensibility to the Beautiful, which we may be able to comprehend when we are similarly organized-but not till then.

This regulation-which much impaired the forensic oratory of Greece-was proclaimed by the crier at the opening of the court. Another, to prevent diffuseness, limited the speakers to three hours each; which were measured by a waterclock (clepsydra) kept in view of the pleaders. The orators or advocates were farther enjoined to conduct themselves respectfully towards the court-to beware of tampering with the judges-to abstain from offensive language towards one another; in short, to demean themselves with what would now be termed gentlemanly propriety as well as professional decorum. Breach of any of these rules was punishable by fine, to be augmented according to any aggravation of the circumstances.

As to fees, the services of the orators were at first gratuitous. Their recompense was the popular influence thus acquired, and which might lead to public office. Antiphon is supposed to have been the first to receive a remuneration in money-the same who originated writing the pleadings. The orators, or oral pleaders, followed his example, receiving pecuniary fees and other presents. Still the pretension always remained that it was an office rather of honor than interest; a mercenary spirit being deemed disgraceful in the advocate, as may be seen, among other places, in the orations "de corona" of Eschines and Demosthenes. Such is a slight outline of the Athenian Bar; which having served much to model, will conveniently introduce us to, the Roman, to which we now proceed.

The Founder of the Eternal City" was not unaware that the acquisitions of the sword abroad are to be secured and perpetuated but by providing for a strict administration of justice at home. To this end het-by one of those happy strokes of genius or fortune which determine the character of an infant nation, and marked the Roman for immortality— selected from the first class of the citizens, denominated patres, a certain number of the most intelligent and experienced, of whom he composed the Senate; and ordained that the residue should be protectors (patroni) to the Plebeians, who formed the second class, and thus took the quality of Clients.

We have observed that, in most countries, the natural protectorate of intelligence and power over ignorance and weakness has been left to establish itself spontaneously by the operation of custom, or the accident of conquest. In Rome, however, the relation obtained at the outset the force and form of a legal institution. Of the various duties and obligations, mutual and reciprocal, which the patron owed his clients, we have here to do with but the principal one, of juridical advocacy and advice.

In the infancy of a military people, these Roman patrons could not well have been either orators or jurists the latter quality is the fruit of far different auspices, no less than the former, of which Cicero says finely: PACIS est comes, otiique socia, et JAM BENE CONSTITUTE CIVITATIS quasi alumna quædam, Eloquentia. They were, however, long sufficient probably for the simplicity of the times and the transactions. But after the expulsion of the Kings, the adoption of the Decimviral code from Greece,‡ and the admission of the people to the constitution through the representation of the Tribunes, the administration of Justice became of course a matter of more complexity and consequence. To supply, therefore, the deficiency of eloquence and expertness

in the patron, ordinarily a plain farmer, it became customary to engage as we have seen before at Athens-the services of the public orators. But as these too were generally not lawyers, there was another class (besides the Prudentes already described, who advised upon the law) who attended at the trial to prompt the orator upon the forms and technicalities of procedure. These were termed Pragmatici, from the Greek word gas (to practice); the name as the thing being of Grecian origin. Here is the prototype of our Attorney.

For the exercise of the Legal Profession the Romans, too, exacted special qualifications, both of mind and morals, still more rigorously than of birth. Romulus we have seen confined the patronship to the first class of the citizens. The rule was adopted into the Twelve Tables, and for five centuries the function remained exclusively in the patrician Order. During the whole period of the Republic the Bar was the established road to the official honors of the State. By it the elder Cato rose from the plough to the censorship. By it Cicero-the novus homo of Arpinum, who yet numbered Kings among his clients-obtained the consular dignity, and that dignity still more glorious, of pater patria"Father of his country Countless others might be named, the first of Rome in rank and office-Hortensius, the Luculli, Sulpicus, the second Cato-who always continued in the practice of the profession. And Julius Cæsar himself, the of the world," was first disconqueror tinguished as a member of the Roman

66

Bar.

But the republic fell. The gift of honors and office passed from the venerable hands of the Senatus, populusque Romanus, into those of an arbitrary prince; wherein, as usual, favor rather than desert became the rule of dispensation. The emulation of the advocate declined; the Patricians began to fall off from the bar, and the Plebeians to creep in to fill up the void. This revolution brought on a degeneration of forensic eloquence: and instead of the now nearly obsolete title of orators, the oral pleaders were called indifferently, caucidici, advocati, patroni-terms which, taken in the inverse order, characterize and confirm the march, just as we have traced it, of the Advocate's function.

Yet the Profession does not appear to have suffered equally in character by this

plebeian adulteration. For it is only false dignity that is easily contaminated, and the consideration of the Advocate springs from all that is real in the true-utility and virtue. At the Roman Bar, alongside the plebeian members, came occasionally the Emperors themselves to take their seat and present their sons or kinsmen for admission-a ceremony sometimes celebrated, as by Tiberius, with a Thus magnificence almost triumphal. the wily Augustus came a third time to solicit the consulship in order to be invested with the requisite magisterial quality, to present in person his children. Tiberius in like manner presented Nero and Drusus. And Titus" whose virtue sighed to lose a day”—was wont to devote many of them, before he became emperor, to pleading the causes of the oppressed and unfriended.

The next innovation was the admission of freedmen, by Alexander Severus; provided they were persons of literary instruction: only, however, in the provinces, probably. By an ordinance of Constantius, the provincial prelates were admitted to practice-a fact wherein may be discerned the position of the clergy, and the germ of that ecclesiastical monopoly which after overran the legal Profession, throughout barbarian Europe. That it at length suffered in character as in capacity by these mongrel admixtures, may be inferred from a law of Valentinian and Valens, declaring it no derogation from the dignitaries of the state to exercise the functions of advocate. From a law by another of these imperial twins, it seems that, in each præfecture, the number of the lawyers was limited, according to the extent of the jurisdiction. Such as were chosen, what we should term by analogy, attornies of the revenue, after their term of service, were entitled to retire with the quality of " counts of the consistory :"which we mention as the probable origin of the Counselors of State, an excellent institution still retained in substance by some countries of modern Europe. A subsequent edict declared the Profession of the Law to be on a footing of respectability with that of arms; inasmuch as it, too, defends the honor, interests and life of the citizens. We mention a few of these reiterated efforts to bolster up the consideration of the Roman Bar, as indicating curiously its sinking dignity. Justin and Justinian added farther privileges; the former of

seems, from another offspring of cupidi

The candidate was to be of competent age, which was seventeen-too early, we think, even with the superior precocity of the ancients but it was perhaps, in general, a commencement of apprenticeship rather than of practice. He was to be examined by the governor, if in a province, the prætor, if in the city; who in a public assembly of the people was to be satisfied as to his social condition, moral character, and especially his capacity, which was to be certified by a Doctor of Laws. Persons stigmatized with any infamy, or who had at any time followed servile occupations, were disqualified. The lawyers were not sworn on admission; but, like the Roman Judges and our jurors, had to take an oath at the commencement of each cause-called Juramentum calumnia. The candidates' names were registered. The number attached to each tribunal was limited by law.

With respect to fees, the ministration of the Advocate was at first, as at Athens, entirely gratuitous. But after, on the one hand, its labors increased with the multiplication of laws and affairs, and, on the other, the official rewards of the republican days had passed from the popular control, it became the custom of clients to make presents to their patrons. This, in process of time, naturally falling into abuse, was prohibited by the Cincian Law. Towards the end of the reign of Augustus, how ever, the advocate was allowed to receive a fee. But this liberty, too, soon grew into such excess, that Claudius deemed it a great retrenchment to cut down the plunder to ten sesterces the cause equal, according to some authorities, to over forty thousand dollars! but according to another and more credible valuation, to only about two thousand. And, after various modifications by the intermediate emperors, this was the sum finally fixed by Justinian.

Nor was the Roman Bar exempt, it

tion; as appears from an edict against it by Constantine the Great, entitled "de quota litis"-a name, by the way, somewhat more expressive and elegant than "barratry," the characteristic term of our Law. But all such restraints were aimed at the sharpers perhaps inseparable from the practice of the law. With the Roman lawyers in general the principles of professional conduct were, honor and virtue-a maxim notably exemplified, among others of their body, by the illus trious Papinian, who chose death rather than prostitute his profession_ to defend the fratricide of the infamous Caracalla.

These are the principal features and vicissitudes which remain to us of the career of the Roman Bar. We now hasten to that of France, its lineal descendant and worthiest successor of modern times. This special resemblance will allow us to be much the briefer! But there is another resemblance which renders particularity expedient-the closer likeness still, between the French Bar and the English. About the latter we shall thus be left but little to inquire, by the cumulative lights from its predecessors ancient and modern: a fortunate exemption! as less perhaps is directly, historically, known of the English Bar of two or three hundred years ago, than of the Athenian of two or three thousand.

It was remarked that, in the early stages of all communities, the dispensation of justice is found in the hands of the priestly order; perhaps by means of its professional craft, perhaps because of a degree of intelligence magnified by the general ignorance. Besides, the expositors of the laws of Heaven would appear to be the best interpreters of the laws of earth also. Such, accordingly, seems to have been the state of things in ancient Gaul, where, Cæsar tells us, the Druids were the judges. But he does not say whether the parties pleaded in person or by advocate. On the page of Cæsar, as on the shield of Achilles, we are left in darkness concerning the functional character of the pleaders. The more probable supposition as to Gaul, however, is that the parties appeared themselves. For what need of an advocate before such allsufficient and sanctified tribunals?

The

judge was the advocate, even as he was the law. All that could be deemed requisite, the bare facts, the parties were competent to present themselves. The conscience of the judge would supply the functions of the advocate.

But after Gaul became a Roman province, the practice of forensic debate seems to have been introduced with the laws of Rome. For, though left, according to the admirable maxim of Roman policy, in the free exercise of their ancient usages, the natives, with something of that philosophical good sense and prompt intelligence which characterize their descendants at this day-so unlike the stolid obstinacy of their Anglo-Saxon neighbors against the like salutary innovations-the Gauls, we say, adopted the more perfected institutions of their conquerors. So that the constitution of the Gallic Bar must have been identical with the Roman. But this constitution underwent a total change with the conquest of the country by the Franks: a change so singular in some of its aspects, as to demand a deeper explication than we are aware it has yet received.

compa

The business of the advocate is with the application of the law and the evidence; consequently, where there are none or but few established rules of either-which is to say, in all uncivilized communitiesthere will be no place for his appropriate functions. In the simple litigation of such times, the facts will be established by the oaths of the parties, together with, occasionally, the attestation of their " rators." But, to ascertain the law, the moral quality of the facts, recourse will be had to supernatural interposition. Here, accordingly, is, we are persuaded, the true origin of the trial by Ordeal: it arose from the default of laws, not (as is the general opinion) from ignorance of the facts, or incapacity to sift the evidence, though this incapacity no doubt existed, however unconsciously. With the barbarian jurisprudence it was exactly the case of reversing the rather presumptuous maxim of the Roman law, and saying: non probatio deficit, sed Jus.

The theory here advanced of the trial by Ordeal, is further confirmed by a grand difference in the forms, which it in fact assumed in the states of ancient and of

medieval barbarism. In the former, provided generally, as far back at least as our records reach, with more or less imperfect codes of law, the juridical controversies were commonly of fact; and accordingly, the mode of trial was by oath, as above designated. But in the middle ages, while the trial by oath was employed to prove the facts, there arose others, of special and ulterior application, † vulgarly termed, "Judgments of God," and which were utterly unknown to even the rudest jurisprudence of antiquity, as they are, we believe, to the pious, pacific, and well- . policed "barbarians" of Asia and Africa, down to this day.

These absurd expedients to get at the will of Heaven, would naturally take shape, in some degree, from the peculiar pursuits of the people, and the reigning prejudices of the age. The military spirit and occupations of the period in question, made the "trial by battle" the favorite form of this superstitious procedure. The notion was, that Providence must favor the right, and crush the wrong. It is worth observing, that such was the principle also of the private wars, not only of the barons of the middle, but also of the heroes of the primitive ages. The duel, a bastard offspring, still subsists only from the same defect of definition and sanction to the Rights of Honor. Public war itself is another form of the expedient. The religious hypothesis of the "judicial combat" has, indeed, long passed away from duelling and war-though war is sometimes still termed, with rhetorical blasphemy, "an appeal to the God of battles," (i, e., butcheries.) But, what may more surprise, the "right by conquest" rests upon the same absurd basis; laid by superstition and built upon by hypocrisy. Yet, while the judicial trial by battle is the ridicule and pity of even the children in this enlightened age of ours, the identical thing--only in the form or phrase of, ar