THE FRENCH BAR* Tam sketch contains many points of interest,
but it is fragmen- tary and wants method. Too much of the book is taken up with biographical details about the advocates of the present century, and the distinctive characteristics of the French Bar as a profes- sion are passed over in a cursory manner. Mr. Young gives as his reason for devoting a large apace to the history of the French Bar in the course of the nineteenth century that the institution has during that time undergone greater changes, produced greater men, and played a more important part in the judicial and political arena than in any former period of its history. But we do not see how this position is supported by sketches of such men as Royer-Collard and De Tocqueville, who, though they were nominally at the Bar, earned their reputation in a widely different field, and were to some extent incapacitated for professional success by those very qualities which insured them a rarer distinction. Nor can we think that the history of the Bar during any given period is told by a mere reference to the men it has produced. The Emperor has found some of his most serviceable instruments at the Bar, for Baroche, Billault, and Rouher had all attained some standing and eminence as advocates before exchanging briefs for portfolios. On the other side, too, we have Jules Favre, whose legal position is undoubted, and the present elections have returned others of nearly equal promise. But in all these cases it is possi- ble to confuse general and special ability, to mistake an orator for a lawyer, or to let readiness and fluency of speech pass for mastery of the subject. No doubt, both in France and England the bar- risters who have risen to be most prominent in the eyes of the world have risen mainly by their profession. Yet they are not always the men who are to be identified with the profession, and the lustre they reflect on it is not in all cases received with grati- tude or returned with interest.
We do not complain of Mr. Young for having paid so much attention to the lives of modern advocates, but we expected some- thing different from his title. His first chapters contain many interesting episodes in the history which he professes to relate. Though Mr. Young goes back to the times of Charlemagne, and talks of the reign of Philip the Fair as an important era, from the changes it introduced into the status of the French Bar, he does not overload his book with antiquarianism, or apply a microscope to every minute fact that has escaped the mpst deserved oblivion. As a rule, writers on law or on legal customs are peculiarly obnoxious to this charge. If Mr. Young sins at all, it is in the opposite direction. He has rather aimed at making his work too popular, by dealing with times which we can all appreciate. Even the matters which he has culled from early history are such as will attract the general reader. What he says about trial by battle may furnish an instance. A genuine legal historian, stumbling upon such a promising topic, would never get away from it. There might be some excuse for this in England, where the last appeal of battle was allowed in 1818. But the main fact given us by Mr. Young is that advocates played:an important part in the ceremonies preceding the combat, as the plaintiff was generally represented by counsel ; and if the advocate in bringing the accusation did not take care to speak in the name of his client and under the express instructions received from his client, he was held to have offered the combat in his own person, and might be obliged to do battle with the opposite party. Everybody can see the advantage of such a rule as this. Although its first effect would have been to teach advocates caution, there must have been occasional slips of the tongue, and each of these pro- bably made an opening for juniors. If the same practice continued now, there would be a duel every circuit, and pro- motion would become far more rapid. We may picture to ourselves the younger men hanging on the lips of their seniors, and waiting anxiously to catch some word that could be construed as mortal defiance. Yet, perhaps, it was one• of the necessary consequences of this rule that certain other obligations which seem to have never taken root at the English Bar were imposed upon French advocates. An English barrister who
An Historical Sketch of the French Bar, from its Origin to the Present Day; with Biographical Notices of some of the Principal Advocates of the Nineteenth Century. By Archibald Young, Advocate. Edinburgh: Edmonaton and Douglas. 1869.
knows or suspects the badness of his cause would be reluctant to defend it with his own body. But the French advocates were bound to accept only such causes as they believed to be just, and if they discovered that they had undertaken a cause which was not just, they were at once to abandon it. One great advocate of the seventeenth century always acted on this principle. "Nothing would persuade him to take up a cause which he believed to be unjust, and his scrupulous accuracy with regard to what he as- serted was so well known that the judges used to say to him, 'Believe a fact at once when Normand attests it.'" Another require- ment was that all arguments calculated to injure the opposite party should bespoken courteously, and without abusive language. This, again, would materially promote circumspection, and might be expected to lead to the adoption of such calmness of tone as would avert all danger of quarrels. The advantage of this self- command was fully recognized by Bonnet in that defence of Moreau which Napoleon never forgave. " Ah ! doubtless," wrote Bonnet afterwards to a friend, "there were words very easy to say in favour of him who had been one of the glories of France, and which alone ought to have been sufficient for his defence ! Ah, my God ! these very words, they were easy to find, as you say ; these very words, these oratorical outbursts, I was oppressed with them ; they stifled me, so to speak, and yet I was compelled to restrain them. It was the price of the safety of my illustrious client. His head would have answered for the least effort which was not restricted to a logical and purely judicial discussion." In our own times, Ledru Rollin was sentenced to fine and imprison- ment for an attack made on the public prosecutor. " Procureur- General," he asked, "who, then, invests you with your office? The ministry ? I, as elector, dismiss the ministers. In whose name do you speak? In the name of the King ? I, elector (history is there to tell you so), make and unmake kings. On your knees ! on your knees ! then, Pro cureur-General, before my sovereignty. To dispute my impartiality is to lay the hand on my electoral crown." One would hardly have wondered if this speech had been followed by a duel.
The subject of fees is of course an interesting one, and Mr. Young tells us of a revolution being produced among the lawyers by an ordinance which enjoined them to inscribe with their own hands beneath their signature the amount of fees they had received. It is said that the cause of this ordinance was the magnitude of the fee demanded of the Duke of Luxemburg by an advocate to whom he had entrusted an important suit, and who would not undertake it for less than £500. As the prescribed fee, according to the laws of Philip the Bold, was never to exceed £27, this was a considerable advance, though it did not come up to the fees given to Gerbier towards the end of the eighteenth century, one of £4,000 from the Company of the Indies, and another of 1'20,000 from a client whose cause he had pleaded successfully. The advocates, however, refused to obey the ordinance, and as their remonstrances were unheeded they retired en masse from the profession. "Four hundred and seven advocates," says Mr. Young, "thus solemnly protested against the ordinance of Blois. When the Parliament met, there were no advocates to plead. Justice was at a standstill, and the capital on the verge of an outbreak." Some might be so wicked as to suggest that the retirement of the whole legal body would promote instead of impeding justice, and that the outbreak would be one of delirious joy. But when the Constituent Assembly abolished the order of ad- vocates, and enabled everybody to plead freely for himself, and, after making the necessary studies and passing the necessary examina- tions, for everybody else, no such millennium succeeded. The Bar was restored to many of its former privileges during the following reigns, and though Napoleon placed it under the control of the Minister of Justice, it was freed from all external discipline by a decree of 1830. Since then the process of becoming an advocate is as follows. The first step consists in taking a Bachelor's degree at one of the public schools, after which the student has to spend three years at the Ecole de Droit, attending lectures on law, writing theses, and passing various examinations. The subjects embraced in the course are Roman law, the Code Napoleon, criminal legislation, civil and criminal procedure, administrative law, the law of nations, the history of Roman and French law, and the study of law generally. Being qualified by passing examinations in these subjects for a call to the Bar, the young advocate has a voice in the election of the Council of dis- cipline by which the Bar is regulated or governed. From this Council proceeds the Bettonaier, or leader of the Bar, who is elected yearly by the Council itself, and therefore represents the Council as the Council represents the profession. It is evident that we have here a number of checks and privileges unknown to the Bar
of England. The Benchers of our Inns of Court are in no sense a representative body. They are not chosen by the members of each inn, nor from the members of each inn, but whenever a silk gown is conferred by the Lord Chancellor, its recipient is, almost as a matter of course, called to the bench of his inn by those who are seated there already. We do not object to the honorary rank which is thus given, but the duty of regulating the profession ought not to be cast on such a body. There is a total want of activity among men who are either fully occupied or partially superannuated, and it is difficult to bring any influence to bear upon those who feel neither gratitude for having been elected nor fear of being superseded. The most salutary check upon barristers mentioned by Mr. Young is one that dates from the reign of Louis IX., but would probably now be thought impracticable. At that time, the judge had the right of refusing to allow advocates of known incapacity to plead before him. The snubs which Lord Ellenborough administered to unpractised speakers, the sarcasms which Curran retorted on some of the occupants of the Irish Bench, the interruptions which flow from one at least of our pre- sent judges, the patient looks and the significant gestures of others, must yield to such a form of discipline. It would be easy to point out barristers who have wearied every Court that has been doomed to hear them, but who have been safe in the relationship of attorneys, if not in the fellow-feeling of juries. If our judges could take a leaf out of this book of Philip de Beaumanoir, from which Mr. Young derives these details, and nip an hour's prosing in the bud, the course of justice would not be impeded, and there might be some chance of our equalling the French in that forensic eloquence of which the present book gives us such splendid examples.
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