the period when men first adopted the forms of civil polity, the principle of advocacy must have existed, though the name may have been unknown. For what is it in theory, but the aid afforded by those whom God has gifted with the means and power, to such as are petitioners for right? Nay! what is the press itself but a mighty advocate at the bar of nations? And when did a time exist when there were not to be found the weak, the timid, and the oppressed, who either dared not, or could not, plead their own cause without assistance, at the footstool of justice? Even when the appeal was not to justice but to power, how often, in the infancy of the world, must the suppliant have needed the agency of a friend to stand between him and vengeance, and solicit mercy and pardon? That friend thereby became his advocate. All whom inability or diffidence prevented from speaking for themselves, because they were "not eloquent, being slow of speech, and of a slow tongue," must, like Moses, have required an Aaron to stand forward as the spokesman on their behalf. It was this feeling which wrung from Job, in the depth of his anguish, the bitter cry, "O that one might plead for a man with God, as a man pleadeth for his neighbour!"

We cannot, however, expect to find, in the infancy of civilisation, any formal recognition of the necessity of the office of an advocate as a distinct calling or profession. In those remote ages, when the transactions of life were of the simplest character, and education had not wrought such wondrous difference in the use of intellect as now exists between man and his fellow man, it might well be thought that the surest mode of elicit

1 "La fonction d'avocat est beaucoup plus ancienne que le titre d'avocat."- - Boucher d'Argis, Hist. abrégée de l'Ordre des Avocats.

CH. I.]

TRIAL SCENE IN HOMER.

17

ing the truth between contending parties, was to bring the accuser and the accused face to face, and let each tell his own story, with such proofs as he could adduce, without allowing another to interfere. In that earliest account of a trial, where inquisition is made for blood, which Homer has given us in his description of the shield made by Hephaestus, at the request of Thetis, for Achilles, the parties are represented as pleading themselves before the judges, each his own advocate.'

"The people thronged the forum, where arose
The strife of tongues, and two contending stood;
The one asserting he had paid the mulct,
The price of blood, for having slain a man,

The other claiming still the fine as due:

Both eager to the judges made appeal.

The crowd, by heralds scarce kept back, with shouts
And cheers applauded loudly each in turn.
On smooth and polished stones, a sacred ring,
The elders sat, and in their hands their staves

Of office held, to hear and judge the cause;
While in the midst two golden talents lay,

The prize of him who should most justly plead."

1 Iliad, xviii. 497-508.

2 It may be worth while to add the translation which Hobbes of Malmesbury gives of the same passage :

"And full of people was the market-place,

Assembled at the hearing of a cause.

A man was slain. And this then was the case:
One said that he had satisfied the laws,
The other said that nothing he had paid;
And on this issue they will both be tried,
And have their proofs before the judges laid:
And clamour great of friends was on each side.
The criers, when they stilled had the cry,
Into the judges' hands the sceptres gave,

And in the midst of gold two talents lie,
For him that has the better cause to have."

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 (ȧpxidikaστýs). 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.

2 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. 1.]

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

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.