CHAPTER IX.

THE HONORARIUM.

ROM the very earliest times, in every country

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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 al others, and that is the disfavor 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 succor 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 neighbor, 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 ' has recorded, ne quis ob causam orandam pecuniam donumve accipiat.

That this was effectual we have no reason to doubt, for from the date of its passing until the end of the Republic

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

ADVOCACY GRATUITOUS AT ROME. 355

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 labor. 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 favor 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 offense against the majesty of Rome. Thus we can well

imagine how an advocate like Lucius Philippus, when he was a candidate for the office of tribune or consul, might avai! 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.

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 among 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 constituen ́s for taking upon themselves the trouble of watching over the interests of others while they neglected their own affairs.' But when better days dawned, and the

1 The wages of a knight were four shillings a day, those of burgesses half that sum. They were fixed at this amount by writs de levandis expensis under 16 Ed. II. These were issued until the close of Henry VIII's reign; but instances of such payment occurred later, and Andrew Marvel is said to have been the last who received it.—See Hallam's Midd. Ages, vol. iii. 171, 6th edit. In 1681, however, when Lord Nottingham was Chancellor, a Mr. King, formerly M. P. for Harwich. presented a petition,