Page images
PDF
EPUB

Germany. The attribute was the king's intrusted to delegates or to the people, and if the example of England, where justice was intrusted by the King to free men, be taken from times relatively too recent, we may adduce that of the princes, and the popular assemblies of the Germans, as narrated by Tacitus.

Spencer's theory is true of Egypt, where the thirty judges of Memphis, Thebes, and Heliopolis were selected from priestly families. Nor can we deny that such was also the case elsewhere, being necessitated by the conditions and attitudes of those peoples over the minds of whom religious sentiment and the idea of another world held absolute sway.

The fact, then, that the judicial power did not fall always into the hands of the priests, but only in certain cases, and then as a result of special circumstances, clearly shews that it is a mistake to speak in this connection of principles and general laws. Indeed we see that where the union between religion and law has really existed the latter remains in embryo or dies as soon as it is born.

Here the question does not seem to be useless and barren, but rather of the highest importance, viz., the origin of judicial functions. In other terms, it appears dangerous to forget or to deny that as much in their origin as in their development these functions depended on, and were closely connected with, the conditions of their milieu. If we admit the existence of one single common law steadily regulating the judicial profession and function, we must consider the administering and making of laws as an inherently uniform mechanism, a maxim which we combat from the conviction. that it may become dangerous in certain periods of social life.

Spencer entertains no doubt with regard to the lay origin of lawyers. Their institution is probably owing, he says, to the fact that from the earliest times, the man who found himself unable to speak in defence of his own rights would

have recourse to the assistance of a friend cleverer or better instructed than himself, whose skill would increase by force of practice and eventually become perfect. At Rome, on the contrary, after the formularies of procedure were made public, there arose a class of men called jurisconsults: men acquainted with the law, who gave counsel, and from whose ranks arose later on the class of lawyers, composed of those who were endowed with oratorical powers. Later the relations between religion and law became more complicated, nevertheless the lawyers as persons destitute of any official character whatever, appreciated solely by right of their ability in the practice of the law, were as a rule laymen.

When the regulation of this class was complete there began a movement of integration and of differentiation among those who constituted it. We have here to observe that most certainly the two professions of Judge and Lawyer could not have proceeded from the same origin. The Judge is a direct emanation from a special function, the lawyer is an accessory. Nevertheless lawyers became, in progress of time, necessary, and ended by being recognized as a public order; Grellet-Dumazean (Barreau Romain) writes that the first lawyer appeared as soon as the first tribunal was established, and the first case discussed. The germ of the profession lies in the need of it, as the first doctor was he who first cured the sick. But when can we really begin to speak of this activity as a profession? How was the institution integrated, and how differentiated? What is the special characteristic which is at the same time the condition of its existence? We shall shortly see. In Egypt the distrust of the arts of the orator after the invention of writing caused the suppression of all oral discussion; nor is there found here any trace of an exercise of the pleader's art. In Athens a similar distrust (felt later in France in 1789) prevented the litigants from calling in the aid of others. Every citizen had to defend himself

and plead his own cause. It happened then, that however gracefully the logogriphs or writers of discourses composed their orations, the client did not always succeed in committing them to memory. He often recited them in such a manner as to provoke the hilarity of the Hellenic public, a critic both exacting and intelligent. Thus on the stage we see the poor pedlar trying in vain to learn his lesson in order to say it before the magistrates, and the rhetorician who traded on his harangues. The people laugh at the jokes of Aristophanes. Thus the way is opened to the profession of the pleader. Greece had thus the most splendid specimens of eloquence that have ever been heard; fresh, warm, and at the same time mature and formed; to her champions were accorded unusual honours, if not imperishable glory. Hundreds of statues were erected to Demetrius Falero, for example, during his life-time.

These orators or pleaders were men who spoke with art and grace; who convinced the Judges and touched the crowd, and who knew how to drive a lucrative trade in words. They were orators and speakers, not jurists, nor jurisconsults. The distinction is so deeply rooted that at a much later period Cicero felt himself called on to explain and demonstrate the importance to the orator of the study of law.

There is therefore no reason why these pleaders should have been connected in any way with the sacerdotal class. The function of defence being only accessory to and integral with the administration of justice, is not the attribute of him who governs.

Up to this period one does not see the rise of the profession of lawyer. This appears when the work of the orator and of the jurisconsult comes into opposition with the ruling powers and with theocracy, issuing from that struggle for liberty which gives it a brilliantly marked character. At Rome the defence of the client was the

prerogative and the duty of the Patrons who were bound to assume it in compliance with the principle that no civis could be without defence and without guarantee of his liberty.

In the middle ages justice took a military form, and defence was, therefore, intrusted to the material bravery of the arm and of weapons. But scarcely was the thick darkness of barbarism dissipated before there appeared on the horizon a more or less formal jurisdiction. The profession of lawyer or defender is almost a continuation of that of arms, the adepts in it being laymen. Indeed the term lay or layman is often used to indicate those pleaders to whom was confided the defence of the interests of churches and monasteries.

In all directions, as well in England as in France, was proclaimed the incompatibility of the function of the lawyer with that of minister of religion. Nec advocati sint clerici nec sacerdotes in foro sæculari, is the formula enunciated by the Bishop of Salisbury (1207).

The profession of lawyer in its nature as such, flourishes only where liberty of speech, action and thought have widely flourished. In countries where such liberty is wanting, lawyers do not thrive; they are only government officials to whom is permitted the mere semblance of the task of defender. "Sans indépendance, pas de barreau; dès qu'il peut être asservi, le barreau n'existe plus," according to the well-known phrase of the Chancellor D'Aguesseau; and Napoleon, in subordinating the French bar to the government, found the means of combating the most determined enemy of despotism. The examples of oratory which have descended to us are a proof of the great liberty which reigned in Rome during the time of the Republic and even under some of the Emperors.

When we see Cicero, a man certainly the reverse of warlike, attacking the adversaries, the witnesses and the

judges, branding Vatinius with infamy and flinging himself violently against Verres and Roscius; and when we think of Quintilian allowing himself to ridicule the speech of the adversary, his behaviour, manners and person, nay, even his features; when we remember how the Emperors Valentine and Valentinian were induced to pronounce decrees prohibiting such canine eloquence and with a view to moderating the recriminations between the parties, we may conclude that this same exaggeration of liberty was no injury, but rather a benefit to the practice of pleading. In more recent times the Tribunal (Forum) was created and existed where there was a guarantee of independence of professional secrecy and of liberty of speech. In France the ordinance of Tours (1484) recognises these rights of the lawyers, who, in steady and admirable accord among themselves and with the magistrates, contrived to guard them jealously for centuries.

The profession flourished at Venice, where, in the shadow of the Lion of St. Mark, independence and liberty of speech were assured to the lawyer. It flourished betimes in England, where there was a close alliance between liberty and the bar. The freedom of Erskine's speech is quite sufficient proof of this.

On the other hand, in Turkey, Persia and Russia, and until a few years ago in Austria, the profession is vilified and disfigured so as to be unrecognisable. Despotism and politics have the upper hand, and the judges withdraw into the shade, while the barristers, if there be any, are nominated by the Government and subjected to its supervision; so that, instead of exercising their profession, they are clerks or secretaries to the law courts (as in Russia at the present day), or attorneys, or ushers (as in Bavaria and Saxony up to 1878).

The first and most important condition of the develop. ment of the legal profession is then a degree of stable liberty.

« PreviousContinue »