CH. IX.] AFRICAN BARRISTERS ON CIRCUIT. 423 southern shores of the Mediterranean, which have now utterly disappeared, had a system of local courts to bring home justice to every man's door, or for some other reason, which we cannot now accurately ascertain, it is certain that that province afforded such a field for the members of the legal profession as to be called by Juvenal, nutricula causidicorum. Their zeal for the emoluments of their profession here too required to be checked. They appear to have not only received, but exacted large presents from their clients, in addition to the usual fees, and were entertained at their expense; while, at the same time, as the imperial edict directed against them gravely complains, their horses were furnished with provender gratis, in the stables of their host, as they went from place to place.1 One might almost fancy that these African barristers rode the circuit, as in the good old times in England. A limitation upon the amount of fees that might be taken, continued as long as the Roman empire existed. 2 And within the prescribed maximum the judge was to determine what was fairly and reasonably due from a client to his counsel, regard being had to the nature of the cause, the eloquence of the advocate, and the custom of the particular court where it was tried. Among the capitularies of Charlemagne there are regulations concerning the conduct of advocates or "clamourers" (clamatores), as they are there called; as, for instance, that if they were discovered to be influenced by undue eagerness for money in the causes they undertook, they were to be banished from the society of honourable persons, and to be in fact disbarred 3; but 1 Dum ipsis et animalibus eorundem alimonia sine pretio mini strantur. 2 Dig. 50. xiii. 1. Cap. vii. tit. 114. any rules laid down as to the amount of we do not find In France, by a royal ordinance of Philip the Bold, in 1274, the honorarium was to be regulated by a regard to the importance of the cause, and the ability of the advocate; but in no case was it to exceed thirty livres. Beaumanoir has a curious passage on the subject. "And they ought to be paid," he says, "according to their quality, and according as the quarrel (cause) is great or small; for it is not reasonable that an advocate, who goes with one horse, should have as much as one who goes with two, or three, or more.” 1 This seems to favour the idea of the knightly character of advocates in those days, to which we have before alluded. If the advocate and his client could not agree upon the amount, the judge who tried the cause was to determine it with due regard to equity. In this state matters seem to have remained for many years, until an ordinance was issued by Henry III. in 1579, known by the name of ordonnance de Blois, which enjoined advocates to put their names to all the papers which they drew up in a cause, and to subscribe the amount of fees they had received, in order that they might be taxed, if deemed exorbitant. An amusing anecdote is related of Pasquier, the famous French advocate, in connection with the subject of the present chapter. In 1583, while he was attending the assizes (les grands jours) at Troyes, he sat for his portrait, and after the painter had finished the likeness, which Pasquier had not yet examined, he asked him to represent him with a book in his hand. The painter said, that it was too late, as the picture was completed without hands. Upon this the witty lawyer imme 'Coutumes de Beauvoisins, cited by Fournel, Hist. des Avocats, i. 89. CH. IX.] EMEUTE OF THE PARISIAN BAR. 425 diately wrote the following lines, as a motto for the portrait. "Nulla hîc Pascasio manus est: Lex Cincia quippe Causidicos nullas sanxit habere manus. "No hands has Pasquier; for the Cincian law The attempt at a later period to give effect to the de Blois ordinance was resolutely resisted by the Parisian bar, and they declared that they would rather throw up practice than condescend to sign receipts for their fees, which would give the profession the character of a servile calling. An order was then made, that all who refused to comply should give public notice of their intention, and should for the future he disbarred. At this crisis, Du Hamel, Chouart, and Loisel, advocates venerable in age, and of high character, in vain tried to induce the obstinate barristers to give way, and 307 of them met in the consultation room, consultationum quam vocant camerâ, and agreed that they would not exercise their profession so long as the obnoxious law was enforced. This caused an entire stay of all judicial proceedings, and there was such confusion, and such a ferment in the city, that De Thou says, Paris was as if it were in a state of siege. The king and chancellor happened to be at Poictiers, and an express was despatched there by some of the high functionaries of state, who pointed out the public scandal which this state of things occasioned, and urged that the law pressed too severely upon the modesty of the respectable members of the bar, and that if all modesty were removed, the honorarium would become This joke spread amongst the briefless, who contributed several jeux d'esprit upon the subject, and they were collected under the title La Main: ou Œuvres Poetiques faits sur la Main d'E. Pasquier aux Grands Jours de the basest and most mercenary gain. The king immediately sent a message post-haste back, confirming the order of the parliament, and enjoining the advocates on their allegiance to obey it. Those who had stripped off their gowns, were, at the same time, commanded to resume their profession. The refractory barristers did not dare to disobey the royal mandate, but returned to their duties, and thus the tumult was appeased. The law, however, as De Thou informs us, soon afterwards fell into desuetude. Fournel, in his narrative of this contretemps, tries to make out that the advocates were successful in their resistance, and that the king gave way. This, however, is a mistake. With a pardonable zeal for the credit of his order, he represents the royal commands to the barristers to resume their gowns, as a privilege accorded to them of practising, notwithstanding that they had, by their own act, disbarred themselves. And he thus infers, that as no evil consequence resulted from their contumacy, the king never intended the ordinance to be obeyed.2 Such is the account given by De Thou; but it is not easy to see how the modesty of the bar was affected by this law, unless indeed the amount of fees was so large that the fortunate recipients were too bashful to acknowledge the high price at which their services were valued. Meyer however says, "Le refus des avocats au parlement de Paris de se soumettre à une taxe, était non seulement noble, mais beaucoup plus dans l'intérêt des parties, que les ordonnances mesquines qui, sous prétexte de veiller à des exactions, décréditent la pratique judiciaire, et laissent le public en proie à l'avidité des patriciens subalternes."— Inst. Jud. vi. 554. * Histoire des Avocats ii, 394. CH. X.] FORENSIC CASUISTRY. 427 CHAPTER X. FORENSIC CASUISTRY.1 Judicis est semper in causis verum sequi; Patroni nonnunquam verisimile, etiam si minus sit verum, defendere. CICERO. A WORK which professes to treat of the office of an advocate, would be incomplete if it did not embrace what we may call the ethics of the question, and examine how far it is consistent with morality and good conscience, to be ready to espouse either side of an argument, to lend the aid of great abilities to shelter guilt from punishment, and become the consenting instrument whereby malice and iniquity are too often enabled to accomplish their designs. For doubtless it does seem a startling fact, that there should exist in the community a body of men, preeminent in intellect, and held in honour and esteem, whose occupation it is to employ all the resources which wit and learning can supply, in advocating whatever cause they are paid to undertake, and in specious and plausible attempts to make the worse appear the better The subject of this chapter has been discussed with much earnestness and deep religious feeling in a posthumous work by the late Edward O'Brien, which appeared a few years ago, called "The Lawyer, his character and rule of holy life." The author adopts a lofty standard, and tries the profession of the law, of which he was himself a member, by a severer test than is usually applied to it. It is impossible, however, to read the book without admiring its pure morality and uncompromising tone. 7 |