17 MARCH 1849, Page 15

BOOKS.

FORSYTH'S HORTENSIIIS..

Mg. FORSYTH has passed his vacations in a course of study akin to his profession. He has examined the laws of Greece and Rome ; he has investigated the practice of their worts, studied the lives and characters of their leading advocates, and perused the forensic orations of ancient times, till he has acquired a distinct idea of the profession and its doings

in classical days. During the darker ages,

"No fees were paid, no special juries known;

Blest days ! and ah, how different from our own!"

A man who was troubled by the law was assisted by compurgators who

swore to their belief in his innocence, or as the case might be ; if he required a spokesman, there was an oratorical neighbour, or the parson of the parish ; and if the case got too knotty for such treatment, the ordeal was at hand, or the opponent might be challenged to a passage at arms and let God defend the right. Nearer the fountain-head of the civil law, some marehands des paroles still contrived to continue the trade, and

do a little business, though under various restrictions.

"Thus amongst the Lombards, one of these provided, that if perchance any one, owing to his simpleness, knew not how to plead his own cause, he was to commence his suit; and if the king or the judge saw that he had right on his side, he was then to appoint him a man to undertake his cause; and Heineccins tells us that advocates were throughout the German tribes allowed to plead, after permission bad in each case been first obtained from the judge; to which liachen- rg adds, that they were enjoined to conduct their cases in plain and unadorned language, without any tedions circumlocution. The name by which they were generally distinguished was not very complimentary; for they were called clama- tores, or clamourers, by which appellation they are frequently referred to in the Capitularies of Charlemagne."

As society settled down, property increased, learning revived, and lan- guage, from expressing wants or necessities, became more adapted to con- ceal thoughts, the "order" of advocates or barristers grew up in modern Europe. In Italy the lawyers formed an important class of society ; and during the rise and maturity of modern civilization and commerce, must have had to handle many curious cases of mercantile as we know they had of criminal and canonical law. But Mr. Forsyth's reading has not carried him into Italy ; or into Spain, where the novelists would lead us to expect some singular specimens of" learned gentlemen " ; or into Ger- many, to which country the world is so greatly indebted for the literature of law, and whose legal practice is of a peculiar kind well worthy of study. France is the only Continental country in which the general law, the practice of the courts, and the character and intellect of the bar, are fully entered into by Mr. Forsyth; after which he comes to England, but the Scotch practice and advocates are left untouched. The English part of the subject is fully treated of, in a ketch of the history of the bar, as well as of its leading members, and the style of English legal eloquence at various epochs, with passing notices of cases. There is a chapter on the "fee" or " honorarium " ; and another is devoted to the subject of "forensic casuistry," in which the question is discussed generally, though the practical instances are mostly drawn from English practice.

The literary character of Hortensius is not exactly but something ap- proaching to gossip : the manner is learnedly anecdotical. In the sketches of classical and French laws and procedure, Mr. Forsyth is too much of a barrister to indulge in loose generalities ; but his accounts are plain and popular, the leading points alone being presented, stripped of minute and technical particulars. His selections of speeches and cases are well made, both to interest the reader and serve as samples ; except that he sometimes stops short of the conclusion of the trial, when the particular purpose he had in his mind is answered. Mr. Forsyth's ar- gument and judgment are not equal to his narrative; or he is too much warped by professional bias—he gives in to the cant of his craft. As matters stand, or as they have stood for ages in England, the squeamish- ness about calling a fee what it is—a fee—is simply ridiculous. The learned gentleman will not talk about what he takes ; but his clerk does; and the sum for going here or going there is as regularly fixed as the fare of a railway or stage-coach. The regular fee is frequently so settled, that the taxing-master knows what to allow ; but in many cases if more be not given than this regulated sum—if what is "expected" be not forthcoming—the closefisted client's case will stand an indifferent chance. The idea of its being an honorarium because it is not legally re- coverable, is equally preposterous. The honorarium of a physician is a fair advantage. As he cannot recover his fees, and knows nothing of the bulk of his patients, he may fairly expect to be paid at the time. Give him a legal claim, and he would constantly be asked for credit, that would very often remain undischarged. In practice, extensive credit is given by the bar to respectable solicitors, and is indeed almost a necessary con- dition of some kinds of business. What the legal honorarium does, is to enable counsel to cheat their clients, by taking fees and neglecting to ap- pear in the case. As there is no legal right to recover, there is no legal undertaking to do anything; no condition which the law (or rather the judges, who have all been barristers) will enforce. The fact of the money being taken and the duty neglected, is too slight a thing for the law to notice : "de mifiimis non curat lex," when justice is to be done— when it is to be defeated, "minimis " receives another interpretation.

It may be observed that in no other country has the bar been allowed such perfect licence by the state as in England, either as to training or conduct. In Republican Rome, many of the great advocates would not receive remuneration : they were in fact in the condition of members of Parliament in this country, who undertake a public or private cause from a sense of duty or a desire for distinction; and if a client made a pre- sent it was strictly an honorarium. With the corruption of society and the destruction of the popular power public motives ceased ; advocacy be- Caine a regular and gainful calling, and soon degenerated into a merce- * Hortensius ; or The Advocate. An Historical Essay. By William Forsyth, Esq., Barrister-at-law, late Fellow of Trinity College, Cambridge. Published by

Murray.

nary and extortionate one, in the sense of playing upon the passions or taking advantage of the necessities of people. The Emperors interfered to regulate the profession and the fees ; though without much success. Similar attempts have been made in other countries. In England alone is a distinct and recognized body of an important character left above the law, and exempted from any practical control whatever ; for although the judges have indefinite powers, even to the extent of imprisonment or dis- barring, they never exercise them to any useful end. The question of what Mr. Forsyth calls the " casuistry" of the bar, —meaning the tricks of sophistry, or the frauds in facts, to which coun- sel resort in the management of their causes,—he treats with better feel- ing than spirit. He disclaims the grossest, as the acts of individuals; forgetting that those acts emanate from the licence which the whole body as well as the most distinguished advocates claim for themselves ; and if the more respectable lawyers in private repudiate such conduct, it is followed by no public censure or hurtful consequence. He upholds the stricter views which a few of the more scrupulous advocates have recom- mended in theory ; but the degrading effect upon the general character of letting oneself out for hire to make the worse appear the better reason, or to become the cool and artful mouthpiece of other men's malignity or baser passions, escapes him. Yet these, we conceive, are the worst effects of the practice of the law.

To pursue this question would lead into a long disquisition. We will turn from Mr. Forsyth's subject to his book, in order to glean a few specimens of the work and the workman. The following account of the stages of a lawsuit at Athens contains a hint in its opening that might be usefully adopted in all countries, although our author does not under- stand it—the institution of an ollice that should compel a man to show cause before going to law.

"Let us now briefly notice some of the characteristic features of the modes of trial at Athens, avoiding as mach as possible mere technical details. The pro- cess in a civil suit was shortly as follows. The plaintiff went before the magis- trate who had jurisdiction in the subject-matter of the particular action, and ob- tained a summons for the appearance of the defendant before him. Between the summons and the appearance an interval of five days usually elapsed. Both parties afterwards attended, and a preliminary inquiry took place; when the ma- gistrate had to determine whether or not the plaintiff had a prima facie cause of action and also whether there was any legal impediment to the further pro- gress of 'the suit. If everything appeared to him to be regular, he appointed a day for another preliminary appearance, and a board or tablet was suspended out- side his office to give notice to the public that each and such a cense was going on. When the appointed day arrived, the magistrate heard from each party a statement of his case, and the evidence of witnesses and other proofs were taken before him; not that he might decide judicially upon them, but that they might be carefully preserved by him, like depositions before a coroner or justice of the peace in England, and sealed up in a box (echinus) until the time came for lay- ing the case before a jury. The use or object of this sort of interlocutory pro- ceeding in a civil suit is not very obvious; but it may have been intended to give the parties an opportunity of effecting a compromise, or in order to inform the magistrate beforehand fully of the particulars of the cause, as it was his duty to preside at the jury-trial which afterwards took place; or, like the written pleadings in our own system, to facilitate the proceeding in court. No evidence was allowed to be given at the trial which had not been submitted to the ma- gistrate at the preliminary investigation; and where a witness had been prevented from attending them the party who wished to call him made a written state- ment of what he expected he would be able to prove, and this was deposited with the other documents in the cause in the magistrate's box; but at the trial the witness was obliged to appear, and by oath support or contradict the statement which had been prepared for him. And the other witnesses also were bound to be in attendance at the trial, not to state new matter, but to certify to the truth of the depositions they had already made, in order that the jury might have an op- portunity of seeing them and observing their demeanour. The mode of giving a verdict was by putting into one of two urns, which stood ready for the purpose, a bean, or pebble, or mussel-shell, or brass ball, according to the nature ot the triaL"

"Pluck," in the sense of courage, has not been a distinguishing trait of the bar ; but those who rely upon their confidence will rarely find it to fail. Whether Lord Brougham's panegyric in his sketch of Gibbs, of the "high duties of au advocate's representative character," be credit- able to the bar or not, there is no .doubt about its truth. The case must be bad, and the risk of loss great, that would induce a pleader to shrink from his "duty." When the rest of society quailed at the terrors of excommunication, the French bar even braved the Pope.

"At the time when they [the Papal claims] were asserted most confidently, the throne of France was occupied by Saint Louis, whose life shines like a star in the midst of a dark and vicious age. But the very excellence of his character constituted in this instance the danger. He was, as his name implies, eminently devout, and therefore trembled at the thought of opposition to the Roman Pontiff: but he was at the same time unwilling to surrender the independence of his crown and the liberties of his kingdom to a foreign potentate; and he anxiously looked round for assistance. The great feudatories of France, with their armed retain- ers, were here powerless, for they could not contend in controversy with Italian clerks; and the question was to be decided by a war, not of the sword, but of argument and opinion. • The clergy, as such, did not venture to come into conflict with their spiritual head ; nor did they care to contradict pretensions which, though in some respects inconvenient to themselves, yet exalted the power and increased the authority of the Church. But although it is true that in that age a large proportion of law- yers were also clerks, yet the habits of their profession rendered them far more tearless and independent than the cowled monks or parochial clergy, who devoted themselves exclusively to the spiritual duties of their calling. And in this dilem- ma the Council of the King turned to the advocates for help, and called upon them to rally round the throne, and refute the arguments by which the aggressions of the Pope were supported. "They were not appealed to in vain. Nobly did they acquit themselves of the task; and in a vast number of writings which issued from their pens they boldly grappled with the claims advanced by the Holy See, and demonstrated their fal- lacy. In many of their positions they seem to have anticipated the Reformation. They formally denied that Jesus Christ had constituted St. Peter his Vicar- General upon earth, so as to give him power to govern kingdoms and dispose of crowns; or that any authority had been delegated to St. Peter different from or exceeding that of the other Apostles. They asserted that Jesus Christ had given to his Apostles the keys of the kingdom of heaven only, and not temporal Juris- diction ; that the Pope and the clergy had nothing to do with questions of peace or war, but must seek to influence princes and potentates by prayers, remon- strances, and exhortations; that the Pope was not the bishop of the bishops, but that all were equally with him the vicars of Christ upon earth; that St. Peter

had been nothing more than the head of the Apostolic College, primus inter pares —as the Dean is the bead of a Chapter; but his teaching was neither more pure nor of greater authority than that of St. John, St. Philip, or St. Bartholomew. "They also firmly denied the right of the Pope to interfere with appointments to spiritual benefices in the realm of France, and maintained that all ecclesiastical as well as lay possessions were liable to taxation for the common exigencies of the kingdom."