LAWYERS' FEES HISTORICALLY CONSIDERED.

The origin and development of the attorney's fee, as it is now understood by the profession and the public, constitute one of the most interesting phenomena of the psychology of the law. To the sordid and prosaic practitioner, the man without imagination, whose aspirations are clouded by dreams of avarice, the subject may be destitute of attraction. His pursuit of the law as a vocation is but the concrete expression of the commercial instinct, the exploitation of which, in this guise, not infrequently results in bitter disappointment and deserved disaster.

In selecting this topic for discussion today, I have assumed that few, if any, members of the Kentucky Bar Association, may be properly catalogued as votaries of Mammon masquerading in the guise of a science which, although confessedly not exact, is to human kind the noblest gift of the ages. Whether, or not, this presumption is a violent one, and subject to rebuttal, is altogether another question, the merits of which need not be argued before this assize of the bar.

The counsel fee of modern times, as is well known, is the evolution of the honorarium of antiquity. The Roman and Athenian lawyers, during the entire period of the marvelous civilizations which these two words recall, performed services for their clients, in and out of court similar to those rendered by the attorneys of the present generation, without the expectation of fee or reward, in the presentday meaning of these words. To them the intellectual triumphs of the forum, the glory achieved by brilliant conquests of luminous learning and matchless eloquence, such as have not been paralleled in the annals of the race, were sufficient to gratify the loftiest ambition of those immortals who preferred to inscribe their names on Fame's im

perishable tablet, rather than prostitute their genius and accomplishments to the lust of silver and gold.

Under the Roman law, as it was practiced during the whole period of the Republic, and during almost the entire judicial history of the Empire, an advocate could make no charge for his services as such, although in the last days of the Imperial Government, when the Roman legions had been disbanded and forgotten, and Roman eloquence was dead, it became the rule that an express promise to pay an advocate for his services was enforceable in the Roman courts.

The rule inhibiting the compensation of lawyers for services performed, except in the form of the honorarium, was never modified at any time in the history of ancient Greece, and all the illustrious advocates who appeared in the Court of Areopagus and other Grecian tribunals, from the days of Pericles and Cimon down to the dismemberment of that great Democracy, and who embellished Hellenic literature with those masterpieces of the art of oratory which are still reverberating, in deathless echoes, around the world, performed these gigantic tasks without financial recompense, except in gratuities from their clients.

In England, up to the present time, the profession of an advocate or barrister is regarded as purely honorary, and in no circumstances can he maintain an action for his fee, which is considered by the English law as a wholly voluntary gift or honorarium. This rule, however, is applicable only to the profession of the advocate or barrister, and does not apply to solicitors, attorneys or proctors, the compensation of which class of practitioners is provided by Act of Parliament and rules of court. In the Athenian, Roman and English jurisdictions, the advocate's reward depended, and depends, wholly upon the generosity and liberality of his client, and many of the most eminent lawyers of ancient and modern times performed herculean feats of eloquence and argument, in cases of world-wide interest, without any compensation whatever, except that

which consisted of the plaudits of the multitude, or eventuated in their political advancement.

The three most famous trials of history, the impeachment of Ctesiphon by the Athenians, for proposing to bestow a crown of gold upon Demosthenes, in recognition of his services to the state after the decisive battle of Chaeronea; the prosecution of Verres for plundering the imperial province of Sicily while Praetor or Governor of that island, and the impeachment of Warren Hastings for high crimes and misdemeanors committed while GovernorGeneral of British India; these three Causes Celebres will forever stand pre-eminent as having brought forth, for the wonder and admiration of mankind, all the colossal intellectual powers of the greatest lawyers and orators of ancient and modern times. And yet the only reward which any of these forensic and parliamentary gladiators received, was a niche high up in History's Pantheon of Fame.

The court which heard and decided the issues involved in the trial of Ctesiphon was composed of five hundred highly educated, intellectual Athenians, nine-tenths of whom were politically and personally hostile to Demosthenes, who represented the accused. Aeschines, the special Commonwealth Attorney, so to speak, who conducted the prosecution, was not only a popular idol, but also a man of commanding abilities and surpassing eloquence, an acknowledged leader of the Hellenic bar, by reason of his phenomenal knowledge of the law and his splendid powers as a debater and logician. Demosthenes, as every schoolboy knows, in defense of his client delivered on that occasion the speech of all the ages, sweeping before him, with the fury of a hurricane, all obstacles and opposition, and securing a verdict or judgment by a vote of 465 to 35 against the accused. The fee of Demosthenes in this case was a mere trinket, a miniature crown of gold, too large for a watch fob and too small for a coronet.

The trial of Verres consumed one year. Cicero, for the people of Sicily, wrote seven orations, but delivered only

one of them in his conduct of the prosecution. He was opposed by Quintus Hortentius, the celebrated patrician jurisconsul of that day, and the one Roman lawyer who can be said to have been almost the rival of Marcus Tullius. In fact Tully had no real rival, as "none but himself could be his parallel." The corrupt and cruel praetor was convicted by the Roman Senate sitting as a High Court of Impeachment, fined two and a half millions of dollars, measured in American coin, and sentenced to perpetual exile. It has been conjectured that the enormous fine im- ' posed in this case was the precedent upon which Judge Kennesaw Mountain Landis relied when he sentenced the Standard Oil Company, a few years ago, to pay a fine of twenty-nine millions of dollars, the penalties, relatively speaking, and comparing the purchasing power of a Roman sestertius in the first century B. C. with that of an American dollar of today, being approximately identical.

In grateful acknowledgment of this stupendous achievement, the people of the plundered isle, brought to the home of Cicero, on the banks of the Tiber, fabulous sums of money and gifts of inestimable value, and laid the unprecedented honorarium at his feet. He proudly declined to accept any part of this enormous fortune which his matchless eloquence had won, except upon the express condition that all of it should be applied as a payment on the national debt of the Republic, and every dollar of it was so applied. Upon the authority of Plutarch and Quintilian, Cicero during his long and illustrious career at the bar never accepted fee or honorarium, or compensation of any kind, from his devoted clientage. He literally practiced law for glory, and with such success that many students of the literatures of ancient and modern times do not hesitate to declare that he was the most intellectual man of all the centuries. He was not only Rome's greatest orator, but Rome's greatest poet as well, although not a solitary verse of his has escaped that oblivion which, far back in the twilight of History, engulfed, with remorseless voracity, so

many of the noble creations of the pagan intellect. We only know that he wrote an epic dedicated to Marius, which contemporary criticism pronounced the equal of the Aeneid of Virgil, besides hundreds of odes, sonnets and satires worthy of the Muses of Horace, Lucretius and Juvenal. His argument in support of the immortality of the soul, written without the aid of Revelation, is not surpassed by any cognate production of the mind of man recorded in sacred or profane history. To his incomparable treatise on "The Commonwealth" the founders of our great American Republic were indebted for many profound suggestions, the influence of which is visible in the Federal Constitution. The impeachment of Warren Hastings, notable for innumerable spectacular performances, is inevitably suggestive of the wondrously brilliant oration of Richard Brinsley Sheridan, delivered in support of his motion to arraign the Vice-gerent of British East India before the bar of the High Court of Parliament-a speech which defied and eluded the art of stenography. So enthralled were the official reporters with the passionate spirit of the orator, the witchery of words, the flights of fancy and the mesmerism of action which culminated in the very delirium of eloquence, that they sat mute and motionless under the necromantic spell of the enchanter's wand. Not a vestige of this speech remains. Its birth and death were.coeval. It was wafted from the lips of Ireland's most gifted son, over the heads of one of the most distinguished audiences ever assembled in Westminster, out into space, and there commingled with the music of the spheres. Charles James Fox, the ablest parliamentary debater of whom England ever boasted, pronounced this oration of Sheridan's the noblest specimen of eloquence ever uttered within the confines of the British Isles.

This is by the way, however, for Sheridan, being a member of the House of Commons, was not speaking as an advocate for his client, but to cite the case of Warren Hastings for any purpose, and not pay a tribute to the genius of this