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the earliest on record—it does not ap- boasted to him of having earned a talent pear that the pleaders are not the parties by two day's speaking: I have earned ihemselves : though we may infer from four, by as many hours' silence. Isocrates the liquidated amount of the fine in contest was repeatedly attached for breach of the -the two talents deposited beside them laws, in practicing a species of dialection the ground—that the Greeks must al- cal chicanery. ready, at the period of the siege of Troy, This we adduce to put our own “sharp have made considerable progress in at practitioners” in respectable company. least penal legislation. It may, however, Æschines, who confined himself to the be well supposed that, what with the writing department of the profession, discodes, still in some respects unrivaled, charged it much more honorably; never subsequently promulgated by their several composing but defences, and for persons lawgivers, and the oratorical genius of unjustly accused. that gifted race—the artifices et doctores Excepting the innovation of oratory, dicendi, as they have been distinguished the Bar of Athens continued at this by no less a judge than Cicero-with period under the ancient regulations of these peculiar advantages, we say, fo. Draco and Solon ; according to which rensic pleading would not have been no one was permitted to practice who was slow to come into juridical use. not of free condition, of respectable social
Be this as it may, the account is, that position, and of unexceptionable moral Pericles was the first to introduce oratory character public and private.
It was into the proceedings of the Athenian Bar. then the maxim (as it always should be Which, possibly, means no more than that the ministry) of the Advocate to labor he was the most famous up to his time, and not for the success of the cause, but for thus, by a well-known oversight of popu. the prevalence of truth and justice. This lar tradition, has impersonated or effaced he was even sworn to, at the opening of the name of his predecessors, as Hercules each trial. Whence the answer of did all the anterior heroes. Henceforth, Pericles-since passed into a proverb-to instead of presenting themselves a state- & friend who solicited him to strain a ment of their case, drawn up for them, point in his favor: amicus usque ad as was the practice, by the jurisperiti we have characterized, the parties were ac In time, the new forensic element necustomed to bring to their aid, at the cessitated new regulation both at Athens trial, some of the celebrated orators of and Sparta. The orators were prohibited the day. Among the earliest thus en- all flights of declamation tending to exgaged, were Themistocles, Pericles and cite the pity or indignation of the (popuAristides; who delivered their own com- lar) judges; and even the magistrates positions. The great advantage of elo were forbidden to look on the prisoner quence, in litigation, once discovered, the during any such appeal. The occasion idea naturally soon occurred of applying of this queer inhibition is curious as itself, it in written arguments, to be recited-as and occurred in the defence, by the orathitherto the bare statement—by the tor Hyperides, of the celebrated courteparties themselves. Of these we have zan, Phryne, tried on a charge of impiety still some fine examples among the extant before the Areopagus. The ingenious orations of Isaeus. Antiphon was the advocate, perceiving that his client was first who composed these rhetorical dis- likely to be condemned, led her forth to courses without speaking them. Both the centre of the court, and tore away the the parts were frequently united; as by kerchief that covered and confined her Lysias, Isocrates and Demosthenes. bosom-by the spectacle of whose volup
An office peculiarly prone to abuse tuous charms, still more, we may believe, could hardly be pure in its rude infancy. than the touching supplications of the ora. Demosthenés is known to have written tor, the hoary* Judges were so softened orations for each of the parties in the through eye and ear, through soul and
More reprehensible still sense, that the tide soon turned, and the was his reply to plus, an actor, who fair free-thinker was unanimously acquit
* The Areopagites must have have been generally old men, as the Court was composed of persons who had signally served the State through ihe various gradations of office, up to the Archonship, which was an indispensable condition of eligibility.
ted.* Let us beware of inferring from this The Founder of the “ Eternal City” fact, or fable, a barbarous simplicity of was not unaware that the acquisitions of manners in a people who had ihen car- the sword abroad are to be secured and ried every intellectual and ästhetical art perpetuated but by providing for a strict to a perfection which modern nations, administration of justice at home. To even the most advanced, have still to this end het-by one of those happy reach. It was rather a peculiar sensi- strokes of genius or fortune which debility to the Beautiful, which we may be termine the character of an infant nation, able to comprehend when we are simi- and marked the Roman for immortalitylarly organized—but not till then. selected from the first class of the citi.
This regulation—which much impaired zens, denominated patres, a certain numthe forensic oratory of Greece-was pro ber of the most intelligent and experienced, claimed by the crier at the opening of of whom he composed the Senate; and the court. Another, to prevent diffuse- ordained that the residue should be proness, limited the speakers to three hours tectors (patroni) to the Plebeians, who each ; which were measured by a water- formed the second class, and thus took clock (clepsydra) kept in view of the the quality of Clients. pleaders. The orators or advocates were We have observed that, in most counfarther enjoined to conduct themselves tries, the natural protectorate of intellirespectfully towards the court—to be. gence and power over ignorance and ware of tampering with the judges—to weakness has been left to establish itself abstain from offensive language towards spontaneously by the operation of custom, one another; in short, to demean them. or the accident of conquest. In Rome, selves with what would now be termed however, the relation obtained at the gentlemanly propriety as well as pro- outset the force and form of a legal fessional decorum. Breach of any of institution. Of the various duties and these rules was punishable by fine, to be obligations, mutual and reciprocal, which augmented according to any aggravation the patron owed his clients, we have here of the circumstances.
to do with but the principal one, of As to fees, the services of the orators juridical advocacy and advice. were at first gratuitous. Their recom In the infancy of a military people, pense was the popular influence thus these Roman patrons could not well have acquired, and which might lead to public been either orators or jurists : the latter office. Antiphon is supposed to have quality is the fruit of far different ausbeen the first to receive a remuneration in pices, no less than the former, of which money—the same who originated writ. Cicero says finely: Pacis est comes, otrique ing the pleadings. The orators, or oral socia, et JAM BENE CONSTITUTÆ CIVITATIS pleaders, followed his example, receiving quasi alumna quædam, Eloquentia. They pecuniary fees and other presents. Still were, however, long sufficient probably the pretension always remained that it was for the simplicity of the times and the an office rather of honor than interest; a transactions. But after the expulsion of mercenary spirit being deemed disgrace. the Kings, the adoption of the Decimviral ful in the advocate, as may be seen, code from Greece, f and the admission of among other places, in the orations “de the people to the constitution through corona” of Æschines and Demosthenes. the representation of the Tribunes, the
Such is a slight outline of the Athenian administration of Justice became of Bar; which having served much to course a matter of more complexity and model, will conveniently introduce us to, consequence. To supply, therefore, the the Roman, to which we now proceed. deficiency of eloquence and expertness
Has this scene been ever made the subject of a painting ? There is not, it appears to us, a finer in all history. The picturesque earnestuess of the orator, the graceful languish and artful embarrassment of the beauty, the conflict between the man and the magistrale, as betrayed in the melting austerity of the judges-here is a group of objects, persons and passions which, for interest, variety, character and contrast, is worthy the pencil of a Raphael.
+ We would not be understood as crediting the fable of Romulus: it is employed merely as a convenient personification of that people.
# We have always wondered how this notable event could have been ever called in question, even were there no other testimony to it than the statue which stood for several centuries after in the Forum, erected by the gratitude of the city to Hermadorus, a Greek, who came to Rome with the Decimvirs to aid in explaining and adapting the institutions and laws thus imported from his native country. To be sure the grand, the Roman, good sense of the thing is hardly conceivable to the Grand-Lama self-sufficiency of our modern nations.
VOL. IV.-NO. III.
in the patron, ordinarily a plain farmer, plebeian adulteration. For it is only false it became customary to engage—as we dignity that is easily contaminated, and have seen before at Athens-the services the consideration of ihe Advocate springs of the public orators. But as these loo from all that is real in the true-utility were generally not lawyers, there was and virtue. At the Roman Bar, alonganother class (besides the Prudentes al- side the plebeian members, came occasion. ready described, who advised upon the ally the Emperors themselves to take law) who attended at the trial to prompt their seat and present their sons or kinsthe orator upon the forms and techni- men for admission--a ceremony somecalities of procedure. These were termed times celebrated, as by Tiberius, with a Pragmatici, from the Greek word alattw magnificence almost triumphal. Thus (to practice); the name as the thing the wily Augustus came a third time to being of Grecian origin. Here is the solicit the consulship in order to be inprototype of our Attorney.
vested with the requisite magisterial For the exercise of the Legal Profes- quality, to present in person his chil. sion the Romans, too, exacted special dren. Tiberius in like manner presented qualifications, both of mind and morals, Nero and Drusus. And Titus--- whose still more rigorously than of birth. Rom- virtue sighed to lose a day”—was wont ulus we have seen contined the patron- to devote many of them, before he beship to the first class of the cit is. came emperor, to pleading the causes of The rule was adopted into the Twelve the oppressed and unfriended. Tables, and for five centuries the func. The next innovation was the admis. tion remained exclusively in the patri- sion of freedmen, by Alexander Severus; cian Order. During the whole period of provided they were persons of literary the Republic the Bar was the established instruction: only, however, in the proroad to the official honors of the State. vinces, probably. By an ordinance of By it the elder Cato rose from the plough Constantius, the provincial prelates were to the censorship. By it Cicero—the admitted to practice-a fact wherein may novus homo of Arpinum, who yet num. be discerned the position of the clergy, bered Kings among his clients-obtained and the germ of that ecclesiastical mothe consular dignity, and that dignity nopoly which after overran the legal still more glorious, of " pater patriæ” – Profession, throughout barbarian EuFather of his country
Countless others rope. That it at length suffered in might be named, the first of Rome in character as in capacity by these monrank and office-Hortensius, the Luculli, grel admixtures, may be inferred from a Sulpicus, the second Cato—who always law of Valentinian and Valens, declaring continued in the practice of the profes. it no derogation from the dignitaries of sion. And Julius Cæsar himself, the the state to exercise the functions of advo
conqueror of the world,” was first dis- cate. From a law by another of these tinguished as a member of the Roman imperial twins, it seems that, in each Bar.
præfecture, the number of the lawyers But the republic fell. The gist of honors was limited, according to the extent of and office passed from the venerable the jurisdiction. Such as were chosen, hands of the Senatus, populusque Ro- what we should term by analogy, attor. manus, into those of an arbitrary prince; nies of the revenue, after their term of wherein, as usual, favor rather than de service, were entitled to retire with the sert became the rule of dispensation. quality of “ counts of the consistory :"The emulation of the advocate declined; which we mention as the probable orithe Patricians began to fall off from the gin of the Counselors of State, an exbar, and the Plebeians to creep in to fill cellent institution still retained in subup the void. This revolution brought stance by some countries of modern on a degeneration of forensic eloquence: Europe. A subsequent edict declared the and instead of the now nearly obsolete Profession of the Law to be on a footing title of orators, the oral pleaders were of respectability with that of arms ; inascalled indifferently, caucidici, advocati, much as it, too, defends the honor, inpatroni—terms which, taken in the in- terests and life of the citizens. We verse order, characterize and confirm the mention a few of these reiterated efforts march, just as we have traced it, of the to bolster up the consideration of the Advocate's function.
Roman Bar, as indicating curiously its Yet the Profession does not appear to sinking dignity. Justin and Justinian have suffered equally in character by this added farther privileges; the former of
whom it was, who first gave the lawyers seems, from another offspring of cupidithe collective designation of Order*—a ty, the practice of speculating in litigatitle jealously asserted to this day, by tion; as appears from an edict against it the French, and other bars of Europe. by Constantine the Great, entitled “de
The foregoing, we trust, will convey quota litis”-a name, by the way, somesome idea of the character-high even in what more expressive and elegant than its decline of the Roman Bar. Now a “ barratry,” the characteristic term of our word with respect to the conditions of Law. But all ch restraints were aimAdmission.
ed at the sharpers perhaps inseparable The candidate was to be of competent from the practice of the law. With the age, which was seventeen—too early, we Roman lawyers in general the principles think, even with the superior precocity of professional conduct were, honor and of the ancients : but it was perhaps, in viriue—a maxim notably exemplified, general, a commencement of apprentice- among others of their body, by the illusship rather than of practice. He was to trious Papinian, who chose death rather be examined by the governor, if in a than prostitute his profession to defend province, the prætor, it in the city; who the fratricide of the infamous Caracalla. in a public assembly of the people was These are the principal features and to be satisfied as to his social condition, vicissitudes which remain to us of the moral character, and especially his capa. career of the Roman Bar. We now city, which was to be certitied by a Doc. hasten to that of France, its lineal detor of Laws. Persons stigmatized with scendant and worthiest successor of any. infamy, or who had at any time fol- modern times. This special resemblance lowed servile occupations, were disquali. will allow us to be much the briefer! fied. The lawyers were not sworn on ad- But there is another resemblance which mission ; but, like the Roman Judges and renders particularity expedient—the closour jurors, had to take an oath at the er likeness still, between the French Bar commencement of each cause-called and the English. About the latter we Juramentum calumniæ. The candidates' shall thus be left but little to inquire, names were registered. The number at- by the cumulative lights from its pretached to each tribunal was limited by decessors ancient and modern: a forlaw.
tunate exemption! as less perhaps is With respect to fees, the ministration directly, historically, known of the Engof the Advocate was at first, as at lish Bar of two or three hundred years Athens, entirely gratuitous. But after, ago, than of the Athenian of two or three on the one hand, its labors increased thousand. with the multiplication of laws and af It was remarked that, in the early stages fairs, and, on the other, the official re of all communities, the dispensation of wards of the republican days had passed justice is found in the hands of the priestfrom the popular control, it became the ly order; perhaps by means of its procustom of clients to make presents to fessional craft, perhaps because of a detheir patrons. This, in process of time, gree of intelligence magnified by the naturally falling into abuse, was pro general ignorance. Besides, the exposihibited by the Cincian Law. Towards tors of the laws of Heaven would appear the end of the reign of Augustus, how to be the best interpreters of the laws of ever, the advocate was allowed to re earth also. Such, accordingly, seems to ceive a fee. But this liberty, too, soon have been the state of things in ancient grew into such excess, that Claudius Gaul, where, Cæsar tells us, the Druids deemed it a great retrenchment to cut were the judges. But he does not say down the plunder to ten sesterces the whether the parties pleaded in person or cause-equal, according to some authori- by advocate. On the page of Cæsar, as ties, to over forty thousand dollars! but on the shield of Achilles, we are left in according to another and more credible darkness concerning the functional chavaluation, to only about two thousand. racter of the pleaders. The more probaAnd, after various modifications by the ble supposition as to Gaul, however, is intermediate emperors, this was the sum that the parties appeared themselves. For finally fixed by Justinian.
what need of an advocate before such all. Nor was the Roman Bar exempt, it sufficient and sanctified tribunals? The
* The distinction is, that Order implies honorary, in opposition to hired or mercenary, functions.
judge was the advocate, even as he was The theory here advanced of the trial the law. All that could be deemed re- by Ordeal, is further confirmed by a grand quisite, the bare facts, the parties were difference in the forms, which it in fact competent to present themselves. The assumed in the states of ancient and of conscience of the judge would supply the mediæval barbarism. In the former, profunctions of the advocate.
vided generally, as far back at least as our But after Gaul became a Roman prov. records reach, with more or less imperfect ince, the practice of forensic debate seems codes of law, the juridical controversies to have been introduced with the laws of were commonly of fact; and accordingly, Rome. For, though left, according to the the mode of trial was by oath, as above admirable maxim of Roman policy, in the designated. But in the middle ages, while free exercise of their ancieni usages, the the trial by oath was employed to prove natives, with something of that philoso- the facts, there arose others, of special phical good sense and prompt intelligence and ulterior application, † vulgarly termwhich characterize their descendants at ed, “ Judgments of God," and which were this day—so unlike the stolid obstinacy utterly unknown to even the rudest jurisof their Anglo-Saxon neighbors against prudence of antiquity, as they are, we bethe like salutary innovations—the Gauls, lieve, to the pious, pacitic, and well.. we say, adopted the more perfected insti- policed “ barbarians” of Asia and Africa, tutions of their conquerors.* So that the down to this day. constitution of the Gallic Bar must have These absurd expedients to get at the been identical with the Roman. But this will of Heaven, would naturally take constitution underwent a total change with shape, in some degree, from the peculiar the conquest of the country by the Franks: pursuits of the people, and the reigning a change so singular in some of its aspects, prejudices of the age. The military spirit as to demand a deeper explication than we and occupations of the period in question, are aware it has yet received.
made the “ trial by battle” the favorite The business of the advocate is with the form of this superstitions procedure. The application of the law and the evidence; notion was, that Providence must favor consequently, where there are none or but the right, and crush the wrong. It is few established rules of either—which is worth observing, that such was the prin. to say, in all uncivilized communities, ciple also of the private wars, not only of there will be no place for his appropriate the barons of the middle, but also of the functions. In the simple litigation of such heroes of the primitive ages. The duel, a times, the facts will be established by the bastard offspring, still subsists only from oaths of the parties, together with, occa the same defect of detinition and sanction sionally, the attestation of their “ compa. to the Rights of Honor. Public war itself rators.” But, to ascertain the law, the moral is another form of the expedient. The requality of the facts, recourse will be bad to ligious hypothesis of the “ judicial comsupernatural interposition. Here, accord- bat” has, indeed, long passed away from ingly, is, we are persuaded, the true origin duelling and war-though war is someof the trial by Ordeal: it arose from the de. times still termed, with rhetorical blas. fault of laws, not (as is the general opinion) phemy, “an appeal to the God of battles,” from ignorance of the facts, or incapacity (i, e., butcheries.). But, what may more to sift the evidence, though this incapa- surprise, the “right by conquest rests city no doubt existed, however uncon upon the same absurd basis; laid by supersciously. With the barbarian jurispru. stition and built upon by hypocrisy. dence it was exactly the case of reversing Yet, while the judicial trial by baiile is the the rather presumptuous maxim of the ridicule and pity of even the children in Roman law, and saying: non probatio de- this enlightened age of ours, the identical ficit, sed jus.
thing---only in the form or phrase of, arPerhaps a more probable reason is, the partial community of language; the Latin being largely mixed with Celtic, derived from the Gauls who settled in Italy in the infancy of the Roman republic. Language is well known to be the most invincible of all obstacles to the interfusion of conquerors and conquered.
Anciently, in England, as we are told by Burke, (Abrid. His. Eng.) before subjecting party to the Ordeal of any kind, he was to be found guilty by the duodecemvirale judicium, the design of which was to establish a sort of corpus delicii, (a proof, by the way, that juries, at least originally, were judges of but the facts.) It is strange the historian, after signalizing this distinction, should not have been led by it to the explication given in the text of the trial by Ordeal, any more than Montesquieu, whose philosophical epigrams on the subject, pr rather, epigrammatic philosophy, Burke, however, criticises.