in general knows little of the capacity of counsel, and the responsibility of selection falls upon his attorney; but if there were no distinction between the two departments, and each might fulfil the duties of the other, it is obvious that, in the generality of cases, the advocate in court would be the same party as the attorney "upon the record." In the United States, however, in all the courts, with the exception of the Supreme Court at Washington, the same person can be admitted to the degree of attorney and counsel, and exercise the powers and functions of each. In the Supreme Court this was first prohibited in 1790, and although afterwards, in 1801, the court declared that counsellors might be admitted as attorneys on taking the usual oaths, this did not imply that they could in that case continue to act as counsellors. They must make their election between the two degrees.1

1 Kent's Commentaries on American Law, i. 307. In a very recent case, ex parte Evans, 9 Q.B. 279, where an application was made to the Court of Queen's Bench for a certiorari to bring up an order made by Justices at Quarter Sessions, to the effect that exclusive audience should be granted to barristers when four were present, that the same might be quashed, the Court refused the motion. Lord Denman, C.J., said, "It is an important rule that in this, as in other respects, all Courts should have power to regulate their own practice. . . . . It is reasonable that, for the purposes of a Court, there should be privileged orders." And see Collier v. Hicks, 2 Barn. and Ad. 663.

CHAPTER IX.

THE HONORARIUM.

Nec venire hoc beneficium oportet, nec perire.-QUINTILIAN. "For his science and for his high renown,

Of fees and robes had he many on."-CHAUCer.

FROM the very earliest times, and in every country where advocacy has been known, it has been the custom to look upon the exertions of the advocate as given gratuitously, and the reward which the client bestows as purely honorary, in discharge not of legal obligation, but a mere debt of gratitude. There can be little doubt that this notion has been encouraged and kept up from a jealous apprehension lest the profession should degenerate into a mean and mercenary calling. For there is one peculiarity which distinguishes it from all others, and that is the disfavour with which men regard a presumed readiness to espouse and support by argument either side of a question. This is a circumstance so repugnant to the ordinary sense of duty, and apparently so subversive of the distinction between right and wrong, that there has been always felt an unwillingness to admit that a man is entitled to barter the powers of his intellect for money indifferently in the cause of virtue and of vice.

As regards the origin of the theory of gratuitous service, it is not difficult to account for it if we consider how advocacy at first came to be employed. It was the help which was afforded by the strong to the weak, the succour of protection

to the oppressed, yielded by the sentiment of pity which prompts us to assist those who are in distress. In its most primitive form, to plead the cause of another in a court of justice was nothing more than an intercession on behalf of a friend or neighbour, and in such a case the mind revolts at the idea of a pecuniary reward. So long therefore as such continued to be the conception of the character of an advocate, who can wonder that it was thought disgraceful for him to accept money or reward? In that point of view every one must feel the truth of the line

Turpe reos emptâ miseros defendere linguâ.

The account which we have already given of the origin of the name applied to advocates at Rome sufficiently explains why the assistance rendered to suitors in courts of law was in the early ages of the Republic gratuitous. The patron defended his client there without fee or reward, for it was a part of the general system of protection which he was bound by the nature of the tie between them to afford. But as actions. multiplied, and a knowledge of legal rights and liabilities became more difficult, more time and study were required to qualify a citizen to undertake the cause of another; and the natural and inevitable consequence was that those who more peculiarly applied themselves to the acquisition of the necessary learning employed it as a means of obtaining money. This however was deemed an abuse, and the scandal thereby occasioned led to the passing of the famous Cincian law. It was brought forward in the shape of a plebiscitum A. U. 549, by the tribune M. Cincius Alimentus, and was entitled De Donis et Muneribus. The only provision which concerns the present subject is that which Tacitus 1 has recorded, ne quis ob causam orandam pecuniam donumve accipiat.

That this was effectual we have no reason to doubt, for

1 Ann. xi. 5. See on this subject Brummeri Commentarius ad Legem Cinciam. (Lutet. Paris, 1768.)

CHAP. IX. ADVOCACY GRATUITOUS At Rome.

363

from the date of its passing until the end of the Republic we find hardly any complaints of its evasion; and during those two centuries there were ample reasons why the orators of Rome should lend the aid of their services as advocates without receiving any pecuniary compensation.

No calling or profession offered such opportunities for distinction. In a city where the people bestowed the high offices of state success in the conduct of causes was a sure and rapid means of advancement. Ambition could choose no better road. The Forum was in fact the Parliament of Rome, the arena of intellectual conflict, where the great triumphs of eloquence were achieved. Perhaps too the orators of those days knew something of the feeling which has animated so many illustrious writers, and which is well expressed in the following words of Lord Chancellor Camden :-"It was not for gain that Bacon, Newton, Milton, and Locke, instructed and delighted the world. When the bookseller offered Milton five pounds for his Paradise Lost he did not reject it, and commit his poems to the flames, nor did he accept the miserable pittance as the reward of his labour. He knew that the real price of his work was immortality, and that posterity would pay it."

But even if this were not so, and the advocate required the stimulus of the hope of present reward, he found substantial inducements to exercise his calling. The prætor looked forward to the consulship, and how could he better secure popular favour than by watching for an opportunity to accuse some great criminal against the state, and display the powers of his eloquence and his zeal for his country amidst the assembled crowd in the Forum? Or it might be that he was called upon to undertake the defence of the accused; and here too he would have ample opportunity to ingratiate himself with his fellow-citizens, even while he threw the mantle of his protection round the client who was charged with some offence

against the majesty of Rome.1 Thus we can well imagine how an advocate like Lucius Philippus, when he was a candidate for the office of tribune or consul, might avail himself of the opportunities afforded by a cause to ingratiate himself with the sovereign people:-how he might launch out into praise of liberty, and denounce the oppressions of the rich and noble-topics always grateful to the ears of the multitude, who chafe under the inequality of condition which separates them from the other classes.2

But further, the advocates in the times of the Republic were generally men of distinguished rank, or members of wealthy families, who might fairly look forward to political power as the prize of their ambition. To such men it was of no moment to receive from their clients pecuniary rewards which their fortune could dispense with. Their great object was popularity amongst their fellow-citizens, whose suffrages they were so anxious to obtain; and there was no more efficient mode of securing this than the offer of gratuitous services in the courts of law. We may illustrate this view by what has happened in the case of members of the House of Commons in this country. Formerly attendance there was looked upon as a burden, entailing expense on the representative, and compensated by no accession of dignity or influence. For, under the Plantagenets and the Tudors, what scope was afforded for distinction to a knight of the shire or a burgess, in parliament? They therefore received pay from their constituents for taking upon themselves the trouble of watching

1 Parimente era il principal modo nello stato popolare di giungere alle cariche grandi; poiche defendendo le cause gratuitamente siccom' essi facerano, obbligavano strettamente molte persone, ed acquistavano per consequenza un gran numero di clienti, e quindi un grandissimo rispetto, ed autorità fra il Popolo, che lor importava molto per conseguire i grandi Uffici.-Giannone, Istor. Civ. di Napoli, ii. c. 6.

We can, however, well understand that it was at Rome, in public trials, better for the advocate to be counsel for the prosecution than the defence; especially if the charge were one which affected the sovereign people, as, for instance, the Crimen majestatis.