Origin of the Theory of gratuitous Service by an Advocate. Cincian Law. Reasons against a pecuniary Honorarium at Rome. Payment of Members of the House of Commons in former Times.-Writ de Expensis Burgensium levandis.-Change at the Downfall of the Roman Republic. · Suilius the informer. - Debate in the Roman Senate. -Decree of the Senate in the Reign of Nero.- Samius, betrayed by his Counsel, stabs himself. Dishonourable conduct of Nominatus. - Law of Trajan on the Subject. Edict of the Emperor Severus. Argument of Quintilian. The Case stated by Sir John Davys. - Rule at the English Bar. African Barristers on Circuit. Capitularies of Charlemagne. —Ordinance of Philip the Bold.- Witty Epigram The Ethics of the Question stated. Sarcasms of Writers. - Ben Jonson. Bishop Hall. — Swift. - M. Cormenin or "Timon." -Mischievous Sophisms exposed.—An Advocate is not bound to undertake every Cause offered to him.-This proved by the Authority of Cicero, Quintilian, and others. Opinions of Sir Edward Coke, Sir John Davys, Cook, Sir Matthew Hale, and Lord Langdale. Assize Sermon of Bishop Sanderson. Contrary Theory maintained by Lord Erskine. Gerald's Trial, and Henry Erskine. Lord Brougham's Idea of the Duty of an Advocate.—His Theory considered. Casuists perplexed by Question whether Falsehood is in all Cases sinful. —Do Advo- cates violate a moral Duty by being ready to espouse either Side of a Question?—The Peculiarity of their Position considered. Fallacious Argument of Puffendorf.— Origin and Necessity of the Class of Lawyers.-Consequences of Counsel refusing to un- fraudulent Claims. - Reasons why Advocates may in general act for either of two Parties in a Cause. Distinction between his Duty, and that of the Judge.-Objection, that of two Sides of an Argument, one only is right, considered. Argument of Sir John Davys. - Sophistry of Paley. - Suspicion directed against the Innocent. — Where Advocate knows his Client to be guilty. Mode of Defence in such Cases. - Necessity of Circumspec- HORTENSIUS, OR, The Advocate. CHAPTER I. ADVOCACY IN THEORY. Ipsam igitur orandi majestatem, qua nihil dii immortales melius homini dederunt, et qua remota muta sunt omnia, et luce præsenti et memoria posteritatis carent, toto animo petamus, nitamurque semper ad optima: quod facientes, aut evademus in summum, aut certe multos infra nos videbimus." QUINTILIAN. UN ordre aussi ancien que la magistrature, aussi 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 of 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 B 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 station. 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 favour 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 cannot be properly administered or enforced, leges ipsa nihil valent nisi actoris idoneâ voce munitæ1; 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." 2 nam et 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 honourable; who Quintil. Inst. Orat. xii. 7. 2 Sermons. The Great Assize. |