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 1 Apolog. Socrat.

1

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." 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.

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

66

CH. II.] ATHENS THE EYE OF GREECE."

CHAPTER II.

THE ATHENIAN COURTS.

23

"Thence to the famous orators repair,

Those ancients, whose resistless eloquence

Wielded at will that fierce democratie,

Shook the arsenal, and fulmin'd over Greece." MILTON.

WHEN we speak of the eloquence of Greece, we mean that of Athens only, for no other city or state produced a single orator1; and it is to her alone that we must look for anything relating to the profession of an advocate. But here we shall be somewhat disappointed. Amongst the Athenians there was no distinct class of men whose peculiar office it was to speak on behalf of parties in a court of justice. The practice was not uniform, but the rule generally seems to have been, that a speaker was not allowed to appear as an advocate, unless he had some interest in the cause himself. Thus, when Demosthenes defended Ctesiphon in the oration for the crown, it is obvious that he considered himself upon his trial; for the charge which Eschines had brought against Ctesiphon was, that he had illegally proposed that Demosthenes should be rewarded for his patriotic exertions by a golden crown; and the accusation was intended to give his great rival an opportunity

1 "Hoc autem studium non erat commune Græciæ, sed proprium Athenarum. Quis enim aut Argivum oratorem, aut Corinthium, aut Thebanum seit fuisse temporibus illis?"— Cic. Brut. 13.

of making an attack upon him. So likewise in the case where Demosthenes spoke on behalf of Phanus, he was interested in the result, for the action against the latter arose out of the proceedings which Demosthenes had been compelled to take against his guardians, to recover property which they had embezzled. But although originally parties were not allowed to avail themselves of the assistance of advocates to plead their causes for them, this rule was so far relaxed in after times, that a relative or friend was permitted to speak in their behalf, if they were prevented by illness or other inability from conducting their own case. It was upon this principle that, when Miltiades was impeached before the sovereign people, and, being incapacitated by disease from addressing the multitude, he appeared in the assembly borne upon a litter, his brother Tisagoras rose and spoke in his behalf; and, in the speech for the inheritance of Nicostratus, Isæus, who appeared for two of the claimants, commences by saying, "Gentlemen of the Jury, Agnon and Agnotheus, who are the plaintiffs in this suit, are friends and connections of mine, as their father was before them. It seems, therefore, to me to be reasonable that I should advocate their cause to the best of my ability." Sometimes several relatives were allowed to divide the task amongst them. Thus the party who opened the defence which Demosthenes wrote for Phormion, commences by saying, "You are well aware, Athenians, how incompetent Phormion is to make a speech, and it is necessary for us, who are his connections, to inform you of the facts which we know, having often heard them from his own lips."

In the mock trial that occurs in Lucian's Bis Accusatus, where Drunkenness brings an action against the Academy for enticing away and

CH. II.]

EMPLOYMENT OF ADVOCATES.

25

Sometimes, however, we find a party to a suit lamenting his inefficiency as a speaker, which proves that it was by no means an universal rule to employ a friend as an advocate, even when there might be a valid plea for making use of his services. Thus, in the defence which Antiphon composed for Helus the Mitylenaan, who was prosecuted for the murder of Herodus in the course of a voyage, he makes him put forward his inexperience in legal proceedings, and his want of fluency, as reasons why the jury should be upon their guard, and pay strict attention to the evidence, and not suffer themselves to be led away by the eloquence of his accuser.

scope

It is obvious that these are cases very different from the employment of counsel, who are strangers to the parties, and who have no personal interest in the issue of the trial. They were offices of friendship performed gratuitously, and can hardly be said to fall within the of the present work. The persons at Athens who corresponded most nearly to our idea of advocates, were not speakers in the courts, but those who composed speeches for clients (Xoyoɣpápoɩ), to be delivered by the parties themselves in their own causes, as is the case in our own courts martial. This was the ordinary occupation of

harbouring one of her slaves, the plaintiff is allowed to be represented by counsel for a very sufficient reason:

Justice (loquitur). "State your case, Madam Drunkenness. Why do you keep silence and nod your head in that way? Go, Mercury, and ascertain the reason."

Mercury. "She says that she cannot speak, as she is tongue-tied from the effects of strong liquor, and is afraid of making herself ridiculous in court; and she says that she can scarce stand, as you perceive."

Justice. 66 Well, then, let her retain one of these clever fellows as her advocate; for there are many of them ready and willing to burst themselves for a fee - (ἐπὶ τριωβόλῳ διαρραγῆναι ἕτοιμοι).”