2

U

CHAPTER I.

ADVOCACY IN THEORY.

N ordre aussi ancien que la magistrature, auss

noble que la vertu, aussi nécessaire que la justice. Such is the glowing language in which D'Aguesseau, the great chancellor of France, speaks of the calling of advocates, of which it is the purpose in the following pages to give an historical sketch.

And I trust that I do not deceive myself by taking any exaggerated view of the importance of the subject, or of the degree of interest which it is likely to inspire. I have neither the wish nor the temptation unduly to "magnify mine office." But it is, perhaps, not unreasonable to suppose that the community may care to know something of the history and character of an order of men who have the varied and important duties to perform which devolve upon advocates; whose assistance may be required by the greatest as well as the meanest, individual in the most critical juncture of his life; who are the depositaries of the confidence, and the defenders of the lives and liberties, the reputation and fortunes, of their fellow citizens; and who form the links of a chain, extending from the highest pinnacle to which a subject can be raised, through the different gradations of the social scale, down to the humblest sta*ion. For the great feature of the profession is, that it is a republic open to all, where the promise of reward

is held out without fear or favor to such as have industry and ability; and, as the prizes that await the successful are magnificent, no class or rank disdains to compete for them. Nor can it be unimportant to the state to inform itself what are the principles of a body of men, without whose aid the laws of their country 'can not be properly administered or enforced,-nam et leges ipsa nihil valent nisi actoris idonea voce munita (Quintil. Inst. Orat. xii. 7.); and from amongst whom is taken every one of those magistrates of the commonwealth whose care should be, in the eloquent words of Bishop Horne, "when he goeth up to the judgment seat, to put on righteousness as a glorious and beautiful robe, and to render his tribunal a fit emblem of that eternal throne of which justice and judgment are the habitation."

In the admirable work of Meyer, in which he has investigated the origin and progress of judicial institutions in Europe, he strongly enforces this view of the relation subsisting between the advocate and the public. "He who has devoted himself to that profession which is as difficult as it is honorable; who receives in his chamber the most confidential communications; who directs by his counsel those who come to ask his advice and listen to him as though he were an oracle; who has the conduct of causes the most important; who constitutes himself the organ of those who claim the most sacred rights, or the defender of those who find themselves attacked in their persons, their honor, or their fortune; who brings forward and gives efficacy to their demand, or repels the charges brought against them; he, I say, who does all this, must necessarily require the support of the public. By his knowledge, his talents, his morality, he ought to endeavor to win the confidence and good will of his fellow citizens" (Esprit, Origine, vi. p. 540). And it may be not without advantage to consider what has been the position and what the estima-1

INTEREST IN THE SUBJECT.

tion of the profession, in former ages and other countries, where it has been adorned by names that have survived the lapse of ages, and still live in the admiration of posterity.

It may, I think, be confidently affirmed, that the state has nowhere interfered so little with the conduct of advocates as in England. In a legislative sense it may be said to have almost ignored their existence. Very dif ferent was the case in imperial Rome; for the Code of Justinian bears ample testimony to the minute care with which their rights and privileges, and duties, were regulated by the emperors; and in the kingdoms of Europe, which were formed upon the ruins of the Roman empire, we find a long list of ordinances and edicts specially directed to the same subject. This was eminently the case in France, where the noblesse de la robe flourished with a splendor elsewhere unknown. But the inference that may be drawn from this is one not unfavorable to the advocates of England. Obi plurima leges ibi pessima respublica is, in one sense, a true maxim, and we may not unfairly presume, as indeed history. warrants us in asserting, that many of the rules and prohibitions which have from time to time been required to check the malpractices of advocates in other countries, have been unnecessary here; and were it right or becoming to vindicate the claim of the bar of England, from the earliest times, to superior purity and a nicer sense of honor as contrasted with that of the rest of Europe, we might point to the significant fact that for centuries it has been subjected to no statutes, or rules, or discipline, other than those which it has framed for itself. It has adhered to its immemorial traditions, and they, when their spirit is rightly understood, ought to be, and have been, sufficient to preserve it as a body from all that is mean, base, and disreputable.

I say, "as a body," for it would be in the highest degree

visionary to expect that, amidst the numbers who crowd the ranks of the profession, no individuals should be found insensible to the dignity of their vocation, and unworthy of the society of honorable men. Such must always exist in every widely extended class; and even the sacred calling of the clergy does not prevent the intrusion into the priesthood of persons who bring disgrace upon the name. But most unfair would it be to judge of the character of either profession by such rare and melancholy exceptions; nor need we fear that the good sense and intelligence of the public will, in this matter, pronounce a partial and unjust verdict.

If, however, any one were to undertake a defense of the profession and professors of the law, there would be little cause for apprehension, lest, like the ancient sophist who proposed to write a panegyric upon Hercules, he should be met by the objection, Quis vituperavit? for it is impossible not to see that in some quarters an almost morbid jealousy is entertained of them. We need not stop to inquire into the causes of this feeling, which may, perhaps, admit of more than one explanation; the wiser course is to derive good out of the evil, and make use of such attacks as microscopes to detect whatever deformity is latent in the system. So far as they are directed against abuses which, though sanctioned by usage and by time, are indefensible, and bring to light defects which admit of an easy and immediate remedy at the hands of the profession itselfand who can deny that such abuses and defects do, to a certain extent, exist ?-it ought to be thankful that its purity is carefully watched over by so vigilant a censorship, and diligently apply itself to correct the faults. But the taunts and carpings of malevolence it may safely disregard, in the confident assurance that if it does not deserve them they will fall like broken arrows to the ground, and that so long as it makes high and honorable

JEALOUSY OF THE OFFICE.

5

principle the pole star of its conduct, public opinion will ratify and confirm the judgment which the voice of all ages has pronounced upon the value and necessity of the office of an advocate.

For were it necessary to vindicate that office it would be easy to cite the authority of great and venerable names. We might ask, with Cicero, "What is so kinglike, so generous, so munificent, as to bestow help on those who supplicate our aid? to raise the oppressed, and save our fellow citizens from peril, and preserve them to the state? What, on the other hand, is so necessary as to have always the command of weapons by which we may be protected from injury, or be enabled to attack the wicked or avenge ourselves if attacked by others?" (De Orat. i. 8.) Or with Tacitus, "For if all our thoughts and actions are to be directed with a view to expediency, what can be more safe than to practice that profession, whereby, being always armed, you will be able to afford protection to your friends, assistance to strangers, and safety to those who are in peril; and, on the other hand, spread terror and alarm among your enemies and the malevolent, while you yourself are meanwhile secure, and invested, as it were, with the panoply of power?" (De Orat. Dialogus, c. 5. Lect. Hist. of Rome, ii. 154.) We might also avail ourselves of that remarkable definition of an advocate which Cato gave, Vir bonus dicendi peritus,-where we see the idea of moral worth inseparably connected with his character, and forming one of its constituent features, as though he were bound by the tenure of his office to eschew evil; and what Quintilian said of the power of forensic eloquence to gain the great prizes of ambition, and acquire for the speaker wealth and fame, has been confirmed by the experience of centuries which have rolled away since his voice was heard pleading in the courts at Rome: Neque erat difficile vel veteribus vel novis exemplis palam facere, non aliunde majores honores,