The Early Days of Advocacy. consults and the "prudentes," the " procuratores " and the " cognitores," chamber-lawyers as we should call them now, were not given to practice in the Forum, — the first recorded instance of the appearance of one of them in that capacity having resulted in disastrous failure. One, Scaevola, the wisest jurist of his time, took on himself to argue a will case — as with some confidence he might, seeing that it turned entirely on a point of law — against his learned friend Crass us, who boasted of much eloquence but no law. And Crassus won, probably because he was put up to his points by some one as good as Scaevola, or that he knew more than he allowed, while in the matter of speaking he had it all his own way. Cicero was wont to assert that he knew no law, but that in three days he could make himself as good as any jurisconsult of them all; but in comment on the silly boast, we may read Niebuhr's acute criticism, that, though he may have had no scientific view of the law, he had probably very sufficient practical knowledge of it. In the difference between the practical and the scientific knowledge lies the distinction between the advocate and the lawyer. But if it is right that we, for our present purposes, should not confound the lawyer and the advocate, to the world, which much affects generalities, especially when abusive, a lawyer is a lawyer, and there is an end of him. And a pleasant time the lawyers have had of it from the laity, since Lucian first began to gird at the "clever fellows ready to burst themselves for a three-obol fee," and Juvenal let loose the flood-gates of his mag nificent abuse upon the hapless head of the barrister. "Men of your large profession, who could speak To every cause, and things mere contraries, Till they were hoarse again, yet all be law. So wise, so grave, of so perplexed a tongue, And loud withal, that could not wag, nor scarce Lie still, without a fee." So writes rare Ben Jonson of the profes sion that Gulliver further describes as "bred 7>
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up in the art of proving, by words multiplied for the purpose, that white is black and black is white, according as they are paid; but in all points out of their own trade usually the most stupid and ignorant generation among us." "Pray tell me," says a brilliant French writer, " where I am to find an advocate with principles; " and Racine, in Les Plaideurs, has the pleasant passage, — "Vous en ferez, je crois, d'excellents avocats; lis sont fort ignorants." Perhaps on these lines may have been based a certain eminent barrister's reported estimate of his own qualifications when at tributing his success to "unbounded assur ance, popular manners, and total ignorance of the law." Sir Thomas More would have no lawyers in his Utopia, as a " sort of people whose profession it is to disguise matters as well as wrest laws." The lawyers, however, have had their friends, though chiefly among their own numbers. Cicero knew nothing in the world "so royal, liberal, and generous" as the advocate's art. And " what," says a quaint old Englishman, Davys, " is the matter and subject of our profession but justice, — the lady and queen of all moral virtues? " D'Aguesseau calls his brethren "an order as old as the magistracy, as no ble as virtue, as necessary as justice." When and where was the origin of the advocate, it is impossible with preciseness to say. D'Argis is right in saying that "his function is older than his name." For the name, in its present application, dates back no earlier than Imperial Rome. Origi nally, the " advocatus " was the friend who attended to give an accused the support of his presence on his trial, a sort of witness to character; the advocate of old Rome had no name but " orator." When advocacy became 1 a profession the advocate got many names; his most complimentary title being of the Middle Ages, when he was in some countries called " clamator," which D'Argis refers to a
