Ethics in Service | Page 3

supposed to receive any compensation. Less than the patronus, but exercising similar functions, was the advocatus--who, though perhaps not so learned in the law, nor so formidable as a person, was able to assist the patronus before the tribunal on behalf of others. There was in addition a body of men called "jurist consults," learned in the law and able to advise, who came to be recognized as the members of a select profession in the time of Augustus.
In the year 200 before Christ, the Cincian law was enacted, requiring that service of the patronus and the advocate should be gratuitous, but it was soon evaded even as the Jewish laws had been. Again presents were made to secure the skilled advocacy of men learned in the law and acute in debate. These gifts like the Hebrew ones were paid in advance and were called "honorariums," another term which suggests the modern retainer. Neither an advocatus nor a patronus could sue for such honorarium at law because it was a violation of law, but once paid, the honorarium could not be recovered. Cicero boasted that he never violated the Cincian law, but historians of his period intimate that by secret loans and testamentary gifts his practice proved to be very profitable. And it is certain, at least, that many of his contemporaries were made very rich by professional remuneration. Augustus directed the passage of another law forbidding compensation to orators and advocates, but it was disregarded and subsequent emperors contented themselves with fixing limits for the fees to be charged. In the golden age of the Roman law, therefore, the payment of the profession became recognized as legitimate and the profession itself became a definite body with clearly understood functions.
In England, for two hundred years after the Conquest, the priests were the only learned men, and they, too, like the Scribes, acted as judges and advisers of litigants. Even as late as the time of Henry VIII, as we know, the Keeper of the King's Conscience and the head of the Court of Equity, was an Ecclesiastic in the formidable person of Cardinal Woolsey. About the reign of King John, laymen became lawyers, and in Henry III's time the Pope forbade priests to fit themselves in civil law or to act as advisers in respect to it. We may properly say that the profession of the Bar, as a recognized English institution, had its beginnings in the struggle for individual rights by which the English race forced the great charter from King John. We find that in the history of the early English administration of justice, bailiffs, undersheriffs, clerical attach��s and the underlings of the courts had gone into the business of acting as attorneys, of cheating their clients, and of stirring up litigation. While statutes were directed against their abuses, I cannot find that there was any English statute forbidding lawyers to receive compensation for their services, although the action of the Pope in forbidding his priests to study and practice law in England may indicate some such abuses. It is certain that legal services were not regarded as creating a debt due from the client to the lawyer who had served him. By statute, now, attorneys and solicitors in England are entitled to fixed fees for professional services. But in the case of barristers, down to the present time, while they may demand a retainer for their services in advance, they still cannot recover by suit if the services are rendered without receiving it. This may possibly be derived from the early Roman and Jewish view of the professional relation and suggests the probability that early in English history professional services were deemed to be gratuitous.
The grant of Magna Charta by King John, in response to the demand of the Barons at Runnymede, gave birth to the Bar in its modern character. Articles 17 and 18 of that instrument provided that Common Pleas should not follow the court of the King, but should be held in a certain place, and that trials upon certain writs should not be taken outside of their proper counties. It provided further that the King or the Chief Justice should send two justiciaries into each county, four times in the year, to hold certain assizes within the county, with four knights of the county, chosen by it, on the day, and at the place appointed. The 45th article promised that the King would not make Justiciaries, Constables, or Bailiffs excepting of such as knew the laws of the land and were well disposed to observe them. The result of this provision by which Common pleas courts came to be held at Westminster, while regular assizes were held in the counties, was the establishment of the four Inns of Court, so-called, Lincoln's Inn, the