CHAPTER II.

THE GENEALOGY OF THE LAWYER.

THE profession of the law has been at all times, and in all countries, a favored and honored calling. This distinction, it appears, originally grew out of the superior knowledge of the lawyers. In England, the nobles and warriors of ancient times were ignorant of reading and writing, and if they did not look with absolute contempt upon these arts, they at least regarded them as effeminate and inharmonious with their lives. All knowledge was locked up in the breasts of Ecclesiastics, who acted in the multiform relation of priests, literati, moralists, and law advisers. It was then, as it should be (but is not) now, the man of superior mind and education controlled. But apart from direct historical data, lawyers are a necessary part of civilization. There must always exist, in connection with a government, a body of men whose business and training fit them as interpreters of law-standing, as it were, between the State and litigants, to

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see that proper application of laws, is made to individual disputes.

1

In England the law began to be cultivated as a separate study in the thirteenth century.1 The lawyers gradually segregated themselves from the ecclesiastical system, and an independent order of their own was the consequence. Regulation of attorneys was made in the reign of Henry IV.

Reeves 2 puts it in this wise:

"The Parliament began to make some provision for ordering attorneys, who had now become a very considerable body of men. Complaint had been made of the mischiefs arising from their ignorance and want of knowledge of the law; and therefore, to make sure of their qualifications, it was ordained by Stat. 4, Hen. ÏV, c. XVIII, that all attorneys should be examined by the justices, and by their directions their names should be put in a roll; they were to be good and virtuous and of good fame; and if they appeared to be such, they were to be received and sworn well and truly to serve in their offices, and especially that they make no suit in a foreign country; all other attorneys were to be put out, and such as were passed in the above manner

1 See Pollock & Maitland's "His- 2 "History of English Law,” I, tory of English Law," Vol. I, page p. 422. 211 et seq., 2d ed.

were to be put in their places by their masters (sic), that is, by their clients.

"It was enacted that when qualified attorneys died, or ceased to act, the justices might appoint others in their room, being virtuous and learned, and sworn as above mentioned.

"It was enacted, that if any attorney was found notoriously in default, of record, or otherwise, he should forswear the court, and never be received to make suit in any of the king's courts; this ordinance was also to be observed in the exchequer at the discretion of the treasurer and barons."

The lawyer first appeared as a friend and adviser of the court. He worked with the latter to sift out the truth and render justice. When the occupation of the lawyer, however, consisted in representing litigants before the courts for money, the intimacy, so to speak, between himself and the court began to weaken, and so far as his individual cases were concerned it was simply human nature, that his advocacy of his client's interests should overcome his independence, and that his usefulness, as a true friend of the court, should diminish. Originally, the client could not read or write; and notwithstanding that the law was simple and contained in a few books, the client did not understand it. Now the client can both read and write; but the law is complex

and multifarious, and the client cannot pursue it, in all of its labyrinths, without a trained legal guide, and that legal guide very frequently knows not the way out of the woods himself, for the paths through adjudications, statutes, codes, and law treatises, are mazy and tangled.

It is a characteristic of the human mind to be faithful to a trust; to be over- rather than underzealous in its performance. In all the varieties of affairs where individuals are compelled to repose confidence in others, the breach of it is the exception, not the rule. The lawyers are the most prominent illustrations of this truth. Fidelity, zealousness, untiring industry, and all kinds of personal sacrifices in the interest of the client, are their predominating traits. This has led them to excesses in advocacy-often to gross exaggeration of facts and sometimes to crime. Inordinate zeal for clients, and ambition to win, are powerful stimulants to human energy, and often sweep away moral and legal barriers, which stand in the path of success. Human nature was very much the same in the thirteenth, as it is in the twentieth, century. The brakes were then applied to the illegal practices of lawyers as they are now; and a statute is cited, passed in King Edward the First's day (1275), threatening with imprisonment the "serjeant countor," or advocates guilty of collusive or deceitful practices.

The only importance of the above references is to show that at all times there has been a tendency on the part of lawyers, generally from excess of zeal, sometimes from greed or ambition, to overstep the limits of true professional bounds. They also serve to apprise the present Bar that all of the evils are not characteristic of this era.

The abuse of power and opportunities, and of unlimited confidence, is the primary sin for which the lawyers are answerable. What this power is, and when and how the confidence is bestowed, will be set forth in the subsequent chapters. But they chiefly arise out of their relation to the State, and not to their clients.