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have common lawyers, but to plead only by civilians; and a Doctor Duck, the king's advocate acted as an assessor to the court during the proceedings. The result was, that the lord-constable, taking the appeal in his hands, and folding it up, put it into the glove which the Lord Rea had thrown down in the court for a pawn in that behalf, and held the bill and glove in his right hand, and in his left the answer and glove, or pawn, of David Ramsey; and then, joining the bill and answer, and the gloves, and folding them together, he, with the earlmarshal, solemnly adjudged a duel between the parties “in the name of God, the Father, the Son, and the Holy Ghost, the Holy and most blessed Trinity, who is one and the only God and Judge of battles." The time and place assigned were, "the twelfth day of the month of April next following, between sun and sun, in the fields called Tuttle fields, in or near Westminster, in the presence of our lord the king." It was also decided, in compliance with the prayer of the challenger, that his counsel might be received into the lists or field with him “for to counsel him what should be needful," and also (as seems still more needful), that he might have a chirurgeon, with his ointments and instruments, ready to serve him. The king, however, ultimately forbade the duel, being "resolved not to suffer them to fight," on the ground, that he was fully satisfied that Ramsey had committed no such treason as had been imputed to him. And thus ended this great appeal.'

In England, as elsewhere on the Continent, the great majority of the lawyers who practiced in the courts were originally shaven clerks; and hence some have derived that indispensable appendage to a barrister's costume,

1 Wager of Battle and Trial by Battle were abolished by 59 Geo. III., c. 46. The same statute abolished also appeals of murder, in which the same kind of combat took place. Judgment in favor of wager by battle, in an appeal of death, was pronounced by the Court of King's Bench in the year 1818. See Ashford v. Thornton, I Barn. & Ald. iv. 405. This case led to the passing of the above statute.

his wig. For, when the appearance of the clergy as advocates before lay tribunals began to be restrained, as it first was by a constitution of the bishop of Salisbury at the beginning of the reign of Henry III., which provided that advocates in the secular courts should not be clerks or priests unless they undertook their own causes, or those of destitute persons,-it is said that they adopted the wig to conceal the tonsure of their heads, in order that it might not be discovered that they were. priests. And in 1259, when William de Bussy, who practiced as an advocate, was called to account for his knavery and mal-practices, he claimed the benefit of his clergy, which, till then, had remained a secret, and to prove that he was in holy orders he wished to untie the fastenings of his coif, whereby his tonsure might appear; but this was not allowed, and an officer of justice seized hold of him, and conveyed him to prison.

It has been already mentioned how little the conduct of advocates in this country has been subjected to any legislative interference; but a statute is still in force, which was passed in the year 1275, in the reign of Edward I., whereby it was provided, "That if any sergeant, countor, or others, do any manner of deceit or collusion in the king's court, or consent unto it, in deceit of the court, or to beguile the court, or the party, and thereof be attained, he shall be imprisoned for a year and a day, and from thenceforth shall not be heard to plead in that court for any man; and if he be no countor he shall be imprisoned in like manner by the space of a year and a day at least; and if the trespass shall require greater punishment it shall be at the king's pleasure."

In that ancient book, the Mirroir des Justices, it is laid down' that every pleader (or countor, as he is called) on behalf of others ought to have regard to four things. First, that he be a person receivable in judgment; that

1 Chap. ii. Sect. 5. The Mirroir was written by Andrew Horne, who is supposed to have lived in the reign of Edward II.

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he be no heretic, excommunicate person, nor criminal, nor a man of religion, nor a woman, nor a beneficed clerk with cure of souls, nor under the age of twenty-one years, nor judge in the same cause, nor attainted of falsity against the right of his office. Secondly, every pleader is to be charged by oath that he will not maintain nor defend what is wrong or false to his knowledge, but will fight (guerra) for his client to the utmost of his ability. Thirdly, he is to put in before the court no false delays (dilatory pleas), nor false evidence, nor move nor offer any corruptions, deceits, tricks, or false lies, nor consent to any such, but truly maintain the right of his client, so that it fail not through any folly, negligence, or de fault in him. Fourthly, in respect of his salary four things are to be considered-the value of the cause; the pains of the sergeant; the worth of the pleader in point of knowledge, eloquence, and gifts; the usage of the court. And a pleader is to be suspended if he be attainted of having received fees from both sides in the same cause, and if he say or do anything in contempt of the court.

Forensic eloquence in this country seems to have been almost unknown until the latter part of the eighteenth century. We read, indeed, of the "silver-tongued Finch, afterwards Lord Nottingham, who was called in his day the " English Cicero" and the "English Roscius," but no speeches of his have been preserved which justify the epithet; and we search in vain that volum. inous and interesting repository of cases, the State Trials, where the higher efforts of judicial oratory ought, if anywhere, to be found, for

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Thoughts that breathe, and words that burn,"

in the efforts made by our advocates, in former days, for their clients. We find, indeed, immense learning and research; a wonderful familiarity with precedents, the pole-star of the English lawyer; and sound and logical

argument, interrupted, however, too often by puerilitics and labored truisms, and conveyed in the stiff and formal periods in which our ancestors used to enunciate their thoughts. And yet, in very early times, we meet with specimens of simple and beautiful English, which show the language was for pathos, and how adapted, therefore, how well fitted for heart-stirring appeals to mercy and compassion. As an instance of this may be selected the confession of Thomas Duke of Gloucester, who, in 1397, in the twenty-first year of the reign of Richard II., was impeached for having levied war against the king, and encroached upon the royal authority. The Duke died in prison before trial, but, previously, made the following confession (State Trials, i. 131):

“I, Thomas of Woodstock, the zear' of my lord the king 21, be the verture of a commission of my lord the king, the same zear, directed to Wm. Rickhill, justice, the which is comprehended more plainly in the aforesaid commission, knowleche that I was one with sertynge of other men, to assent to the making of a commission, in the which commission I, among others, restrained my lord of his freedom, and took upon me, among others, power regal, truly not knowing me witting, that time that I did against his estate, nor his royaltie, as I did after and do now; and, forasmuch, as I knew afterwards. that I had done wrong, and take upon me more than I ought to do, I submitted me to my lord, and cried him mercy and grace, and yet do, as truly and as meekly as any man may, and put me high and low in his mercy and grace, as he hath always been full of mercy and grace to all other. Also, in that time, that I came armed into my lord's presence, and unto his palace, howsoever, that I did it for drede of my life, I knowleche for certain that I did evil, and against his regalitie, and his estate, wherefore, I submit me lowly and meekly to his mercy, and to his grace. Also, in that I took my lord's letters of his

1 Year.

2 By.

3 Certain.

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messages, and opened them against his leave, I knowleche that I did evil, wherefore, I put me lowly in his grace. Also, in that, that I sclaundered my lord, I knowleche that I did evil and wickedly, in that, that I spake to him in slanderous wise, in audience of other folk: bot by the way, that my soul shall too, I meant none evil therein, nevertheless, I wot and knowleche that I did evil and unkindly, wherefore I submit me high and low in his grace. Also, in that I, among other, communed and asked of certain clercs whether that we might give up our homage for drede of our lives or not, and whether that we were assentid thereto for to do it, trewly and by my troth, I ne have now none full mind thereof, but I trowe rather yes than nay, wherefore I submit me high and low ever more in his grace. And, therefore, I beseech my liege and sovereign lord the king, that he will of his grace and benignity accept me to his mercy and his grace, as I put my life, my body, and my goods, wholly at his will, as lowly, as meekly as any creature can do, or may do to his liege lord; beseeching to his high lordship, that he will, for the passion of him that suffered for all mankind, and the compassion that he had for his mother on the crosse, and the pity he had of Mary Magdalen, that he will vouchsafe for to have compassion and pity, and to accept me to his mercy and to his grace; as he that hath ever been full of mercy and of grace to all his lieges, and to all other that have nought been so nigh unto him as I have been, though I been unworthy."

:

Sir Thomas Elyot, in his Governor, gives the following explanation of the fact which we are considering :—“ But for as much as the tongue, wherein the law is spoken, is barbarous, and the stirring of affections of the mynde in this nature was never used, therefore there lacketh elocution and pronunciation, two of the principal parts of rhetoricke.