« PreviousContinue »
date-perhaps of not more than one hundred years backsince formerly no one was allowed to employ an attorney or agent who could appear in person, and then only by leave of the Court; a trace of this practice is observable in the calling the plaintiff,' in cases of nonsuit... Althcugh the intervention of an agent is in a great number of cases unnecessary, it is judged inconvenient to depart from the general rule in particular instances; hence the etiquette of the superior branch of the legal profession admits but three exceptions: when the client wishes to consult counsel upon the conduct of his attorney, because it is not judged advisable that another attorney should intervene in so delicate an affair; in the case of the drawing up of wills, because the client may wish to confide his future intentions to as few persons as possible ; and in the case of the defence of persons under indictment for criminal offences because, being for the most part indigent persons, it is not considered just to expose them to the additional expense of employing an attorney. The same reasons are probably applicable to cases in the Inferior Court, but this has as yet hardly become a settled practice."
The reader will notice that at the time when the abovementioned judgment was delivered, and when Sir Patrick Colquhoun wrote, the intervention of an attorney or agent was by no means fully recognized ; the practice of this intervention had been struggling for an existence for about a hundred years before that time, and was looked upon rather as a convenience than as an obligation. Sir Patrick Colquhoun, whilst adopting the extreme view of the desirability of the intervention, is nevertheless forced to admit that there are three important cases in which such intervention cannot be tolerated ; and he further admits that the practice of intervention is comparatively speaking new, and unsupported by any legal enactment.
Mr. Serjeant Pulling (" Order of the Coif,” p. 2) says : “The Brothers of the Coif (serjeants) devoted to the profession of the law, bound by a solemn oath to give counsel and legal aid to the king's people, were for ages to be found at their ancient rendezvous in St. Paul's Cathedral, the Parvis, or their allotted pillar there, wearing their distinctive costume, the robe and the coif, ever ready to receive those who sought their assistance, to give counsel pur son donant to the rich, and gratis to the poor suitor, and to aid when called on in the judicial business of the king's courts.” And again (p. 160), “the Round of the Temple Church like the Parvis of St. Paul's was for ages professionally resorted to and used both by students and practitioners of the law.” These legal meetings are referred to by Ben Jonson in the “ Alchemist,” and by Samuel Butler in “Hudibras,” part 3, c. 3. Other instances could doubtless be found with a little research.
And such is the law at the present day. Barristers, i.e., apprentices of the law, have succeeded to the privileges of the serjeants, but the powers of the Bar have not been restrained by any statute. They are the same now as they ever were. And although it may be urged that it is convenient for the rich suitor to have the use of the intermediary, to act as his agent, and for counsel in large practice to have the intermediary to perform the less dignified work for them, so as to render their own work shorter with regard to each case, and thereby to enable them to accept a larger number of cases and a proportionately larger number of fees, yet it should not be forgotten that many suitors are very poor, and that it is a matter of no little moment to them to be able to carry on a lawsuit, a prosecution, or a defence, without the expense of an intermediary. This the law allows them to do; this the law permits barristers to undertake. Without disparaging the utility of attorneys, or solicitors, and their bills of costs, it
nevertheless is desirable that the superstition of the necessity of employing an intermediary should be removed, and that the Bar-especially the junior Bar-should be fully cognizant of their rights. The fusion of the duties of barrister, attorney, solicitor, and notary public in one person, in many of our colonies and in the United States, testifies largely to the opinion of those of our own kith and kin as to the undesirability of the employment of intermediaries. What would be said if a medical man could alone be approached by his patient through a chemist and druggisi ? or a clergyman through the parish clerk?
III.-DANTE AS A JURIST.
was actually a lawyer by training or profession, like Ariosto or Tasso, but that like some other great poets he did not disdain the aid of law as an adjunct to poetry. * There is a side of Dante's character specially interesting to lawyers. He was a master of all the learning of his timeone of the semipoetæ, to use Filippo Villani's phrase—and law had not escaped him. None of his biographers specially name law among the subjects of his study, but Boccaccio tells us that he became wonderfully skilled in the liberal arts, and in Italy in the thirteenth and fourteenth centuries there is not much doubt that law
* A conspicuous instance of this is Lucretius' magnificent line:
Vitaque mancipio nulli datur, omnibus usu. Many other instances will readily suggest themselves to the student of poetry. As the Portuguese poet says,
Não fazem damno ás Musas os doutores,
would be included under liberal arts. This, however, is not important, as it is by his works that he is to be judged. His opportunities for the study were undoubted. His father and his master Brunetto Latini were notaries. He spent, as will appear later, some time at Bologna, the alma studiorum mater, the home of legal learning, and was an intimate friend of Cino da Pistoia, one of the leading jurists of the period.
His knowledge of law shews itself in two main directionsin phraseology and in argument. But he was at the same time something more than a poet with a legal training. Like all noble natures he was as strong a lover of justice as von Ihering himself, and would probably have agreed with the latter that der Kampf um's Recht ist die Poesie des Charakters.* The sense of justice is one of the most conspicuous things in his writings,t and one can in this place only name a small number of passages in illustration of what will be obvious to all students of Dante. I
The subject of Dante as a jurist seems not to have been touched in any English book known to the writer, though Italian and German assiduity has done to a limited extent (as will appear later) what has been done more fully in the case of Shakespeare in England, Germany, and
*“Der Kampf um's Recht," p. 41.
+ It is especially insisted on by Dr. Moore: " Dante and His Early Biographers,” p. 256.
# He says himself (Epist. x., 8), that the relation of man to justice is the allegorical subject of the “Divina Commedia." The last book of the Convito (never written) was to have had justice for its theme. Noticeable passages in the Divina Commedia" are that the Creator of the gates of hell was moved by justice, Giustizia mosse il mio alto fattore (Inf. iii., 4); it inspired Justinian, la viva giustizia che mi spira (Par. vi., 88); and in the planet Jupiter the spirits of the blest arrange themselves so as to form the verse Diligite justitiam qui judicatis terram (Par. xviii., 78). The lofty position of justice is explained by its being the servant of God;
Italy.* If the writer have been forestalled in England or America, he can only plead in Dante's own words, questo intendo, non come buono fabbricatore, ma come seguitatore di quello, fare in questa parte. It is noticeable that some of the editors and translators of Dante have been lawyers, e.g., Dr. F. Scolari in Italy, Sir W. F. Pollock and Mr. Warburton Pike in England.
It will be convenient to divide the subject into five heads, dealing at first chiefly with the “ Divina Commedia,” and leaving the other works for subsequent consideration. It might primâ facie be expected that one of the heads would be similes, but it is remarkable that not one simile is taken from the practice of the Courts, and there are only five which in the most remote way connect themselves with the present subject. I
(1.) Bologna.—In the days of Dante Bologna was the centre of the legal learning of the western world. The stream of the juristic productions of the great glossators, § post-glossators, and scribentes had not yet ceased to flow. Among the jurists of the time who wrote or taught in the Archiginnasio of Bologna or in neighbouring cities were Accursius (died 1294), Guittoncino Sinibuldi (better known as Cino da Pistoia), who died in 1336, and Baldus, who
* Rushton,“ Shakespeare as a Lawyer" (1858); Lord Campbell, " Shakespeare's Legal Acquirements” (1859); Forlani, “ La Lotta per il Diritto ; Variazioni filosofico-giuridiche sopra il mercatante di Venezia e altri drammi” (Turin, 1874): Kohler, “ Shakespeare vor der Forum der Jurisprudenz (Würzburg, 1883).
+ Convito, iv., 30.
I These are Inf. xix., 60 (those who stand at a loss for a reply); Par. xvii., 103 (one who asks counsel); xxiv., 45 (the bachelor who is ready but does not speak until the master proposes the question). The first and last of these may be reminiscences of Bologna disputations. In addition there is the simile of Themis, Purg. xxxiii., 47, and of the friar shriving for murder, Inf. xix., 49.
§ The words chiosa and chiosar are familiar to Dante (Inf xv., 89; Purg. xi, I4I; xx., 99; Par. xvii., 94).