Diodorus Siculus tells us that the ancient Egyptians expressly forbade advocates to plead in their courts, on the ground that they darkened the administration of the laws. The account which this author gives of the legal tribunals in Egypt, in the olden time, is very interesting.1 From each of the cities, Heliopolis, Thebes, and Memphis, ten of the most eminent persons were selected to form the court; and when these thirty met, they chose one of their number, most competent for the office, to act as president (dpxidikaσrs). In order to supply the vacancy thus occasioned among the puisnes, the city from which he had come then sent another in his place. The king provided all the judges with ample maintenance, but a much larger proportion fell to the share of the president, who wore, suspended round his neck by a gold chain (like that of the Lord Chief Justice or Chief Baron in England), a small image made of precious stones. The name of this image was Truth, and whenever the president put it on, it was the signal for the commencement of the trial. The whole of the laws of the realm were contained in eight books, which, for the convenience of reference, lay before the judges, and the proceedings were all conducted in writing.

The plaintiff first wrote down the nature of his cause of action, and the amount of damages which he claimed. The defendant then pleaded to the "declaration," either by denying the facts alleged, or confessing and avoiding them, or pleading in mitigation of damages. Upon this the plaintiff replied, and the defendant rejoined.2

1 Lib. i. 48.

* Τὸν ἀπολογούμενον δὲ, λαβόντα τὰ χρηματισθέντα ὑπὸ τῶν ἀντιδίκων ἀντιγράψαι πρὸς ἕκαστον ὡς οὐκ ἔπραξεν, ἢ πράξας οὐκ ἠδίκησεν, ἢ ἀδικήσας ἐλάττονος ζημίας ἄξιός ἐστι τυχεῖν. κ. τ. λ. The whole passage might seem to be a Greek account of the English system of pleading, so many are the points of resemblance which it bears to the latter.

CH. I.]

TRIBUNALS OF ANCIENT EGYPT.

19

This seems to have been the limit to the counter allegations, and without straying into the regions of surrejoinder, rebutter, and surrebutter, the cause was now at issue, and the court having taken the "paper books," proceeded to consider the case. The mode in which judgment was delivered, was by the president placing his image of Truth upon the written pleadings of that party in whose favour the court had determined. Diodorus says that the Egyptians adopted this system from a conviction that it was most favourable to the administration of even-handed justice. Parties were thereby placed more upon a level, and the clever and tricky had no undue advantage over the simple and honest, as they could not avail themselves of rhetorical flourishes and appeals to the passions by set speeches. And he adds, that the law took care to allow sufficient time to each party to reply to the pleading of his adversary, and to the court to consider its judgment.

Sir Thomas More makes the absence of advocates one of the characteristic features of his Utopia. "They have no lawyers among them, for they consider them as a sort of people whose profession it is to disguise matters as well as to wrest laws; and therefore they think it is much better that every man should plead his own cause and trust it to the judge, as well as in other places the client does it to a counsellor. By this means they both cut off many delays and find out truth more certainly. For after the parties have laid open the merits of their cause, without those artifices which lawyers are apt to suggest, the judge examines the whole matter, and supports the simplicity of such well-meaning persons whom otherwise crafty men would be sure to run down. And thus they avoid those evils which appear very remarkably among all those nations that labour under a vast

66

load of laws." This is fiction: but Milton tells us the same of the hardly civilized Muscovites in his time. They have no lawyers, but every man pleads his own cause, or else by bill or answer in writing delivers it with his own hand to the duke: yet justice by corruption of inferiors is much perverted. Where other proof is wanting they may try the matter by personal combat or by champion."

1

It may seem to be almost a truism to assert, that the profession of the advocate has flourished most amidst free institutions and under popular governments. For it is reasonable to suppose that the jealous tyranny of despotism would dread the searching investigation of facts and fearless comment upon them, which it is the duty of the orator of the courts to make. But yet history warrants us in asserting that, even where arbitrary power exists, his office may be held in the highest estimation. Nowhere do we find a more ample recognition of its use and importance than in the Code of Justinian, under a system where the will of the emperor was law, according to the famous maxin, Quod principi placuit legis habet vigorem; and in no country has it been more honoured than in France under the old régime, when legislation was carried on by royal ordinances, and l'état, c'est moi, was the motto of her monarchs. A limit no doubt was drawn, both there and in imperial Rome, within which the advocate was obliged to confine himself: and he could not, with any safety to himself or advantage to his client, discuss matters of state policy, or reflect upon the acts of those in power. But in contests between parties for private rights, and in the defence of

1 A Brief History of Muscovia. Prose Works, iv. 278. We shall see that this appeal to arms was by no means confined to the ancient Russians.

UTILITY DEPENDS ON THE COURT.

21

CH. I.] those who were charged with crimes against society as distinguished from the government, free scope was given to his exertions; and parties were enabled to pour their complaints into the ear of justice and make themselves heard, not by their own imperfect utterance, "with bated breath and whispering humbleness," but by means of the bold and fluent language of practised speakers. And this is an advantage of no ordinary kind. It forms the best security for a pure administration of the laws, that no judicial verdict can be given without a full discussion of the merits of the case, and that the magistrate, before he decides against a party, is compelled to hear, in open court and in the face of the public, every argument which ingenuity and eloquence can urge in his behalf.

The utility of the office of an advocate depends much upon the character of the tribunals before which he has to plead. If they are notoriously corrupt, the consciousness of this fact paralyses his efforts, and suitors dare not rely upon his assistance, but have recourse to bribery to secure a favourable hearing. And in the republics of Athens and Rome, the courts of justice were in a far worse condition in this respect, than those which existed under the Roman empire and in France. According to Xenophon, the capricious fickleness of the Athenian courts was one of the reasons alleged by Socrates, for refusing to make any preparation for his defence. He had seen them, he said, frequently condemning to death the innocent, and acquitting the guilty. It is sufficient here merely to notice the fact, as an opportunity will occur of considering it more fully hereafter.

In one point of view, indeed, popular institutions are

essential to enable the advocate to achieve his highest triumphs. For it is obvious that the chief gift and attribute of his art is eloquence, and this must be trained and practised in a very different school from that of despotism. Hobbes has defined democracy to be "a republic of orators, interrupted now and then by the monarchy of a single orator;" and, in the words of Giannone, "those who know how to speak well have a great advantage in assemblies of the people, which is willingly led by the ears (il quale si mena volontieri per orecchie); whence it happens that in a free state the advocates are generally those who have most power and authority." 1 In order to learn what are the noblest efforts of which oratory is capable, we instinctively turn to Athens and Demosthenes, or to Rome and Cicero, and remember that both these great speakers gained their immortal fame under republican forms of government, and in the midst of popular tumults. France may seem to present an exception to this rule, for her advocates were distinguished for their eloquence at a time when the power of the crown was without check or control, and all the functions of government centred in the king and his ministers. But her parliaments were in reality a popular institution, which afforded scope and opportunity for the display of forensic oratory, such as has rarely been enjoyed in other countries. And it is a remarkable fact, that however arbitrary might be the conduct of the monarch in other respects, justice was generally administered in those courts with a firm and upright hand, and the crown seldom, if ever, attempted to interfere.

1 Istor. Civ. di Napoli, lib. ii. c. 6.