Popular Science Monthly/Volume 48/November 1895/Professional Institutions VII
VII.—JUDGE AND LAWYER.
By HERBERT SPENCER.
Hence originates that early conception of law which long continues with slowly increasing modification, and which, in our day, still survives in those who hold that Right means "that which is ordered"—firstly, by a revelation from God, and secondly by god-appointed or god-approved kings. For the theological view implies that governments in general exist by divine permission, and that their dictates have consequently a divine sanction. In the absence of a utilitarian justification which only gradually emerges in the minds of thinking men, there of course exists for law no other justification than that of being supernaturally derived—first of all directly and afterward indirectly.It follows, therefore, that primitive law, formed out of transmitted injunctions, partly of ancestry at large and partly of the distinguished ancestor or deceased ruler, comes usually to be enunciated by those who were in contact with the ruler—those who, first of all as attendants communicated his commands to his subjects, and who afterward, ministering to his apotheosized ghost, became (some of them) his priests. Naturally these last, carrying on the worship of him in successive generations, grow into exponents of his will; both as depositories of his original commands and as mouth-pieces through whom the commands of his spirit are communicated. By necessity, then, the primitive priests are distinguished as those who above all others know what the law is, and as those to whom, therefore, all questions about transgressions are referred—the judges. In small rude societies judicial systems have not arisen, and hence there is little evidence. Still we read that among the Guiana Indians the Pe-i-men are at once priests, sorcerers, doctors, and judges. Concerning the Kalmucks, who are more advanced, Pallas tells us that the highest judicial council consisted partly of priests, and also that one of the high-priests of the community was head-judge.
Though among the semi-civilized Negro races of Africa, theological development has usually not gone far enough to establish the cult of a great god or gods, yet among them may be traced the belief that conduct is to be regulated by the wills of supernatural beings, who are originally the ghosts of the distinguished dead; and in pursuance of this belief the ministrants of such ghosts come to be the oracles. Thus Lander tells us that "in Badagry the fetich-priests are the sole judges of the people." Cameron describes a sitting of Mganga, chief medicine man at Kowédi. After the chief's wife had made presents and received replies to her inquiries others inquired.
Questions were "put by the public, some of which were quickly disposed of, while others evidently raised knotty points, resulting in much gesticulation and oratory. When the Waganga [apparently the plural of Mganga] pretended they could not find an answer the idols were consulted, and one of the fetich men who was a clever ventriloquist made the necessary reply, the poor dupes believing it to be spoken by the idol."
Of ancient historic evidence readers will at once recall that which the Hebrews yield.
There is in the Bible clear proof that the ideas of law and of divine will were equivalents. Their equivalence is shown alike in the bringing down of the tables from Sinai and in the elaborate code of regulations for life contained in Leviticus; where the rules even for diet, agricultural operations, and commercial transactions, are set down as prescribed by God. Still more specific evidence, elucidating both the general theory of law and the functions of the priestly class, is supplied by the following passages from Deuteronomy:—
"If there arise a matter too hard for thee in judgment, between blood and blood, between plea and plea, and between stroke and stroke, being matters of controversy within thy gates: then shalt thou arise, and get thee up into the place which the Lord thy God shall choose; and thou shalt come unto the priests the Levites, and unto the judge that shall be in those days, and inquire; and they shall shew thee the sentence of judgment; and thou shalt do according to the sentence, which they of that place which the Lord shall choose shall shew thee."
Moreover, beyond the often recurring injunction to "inquire of the Lord," we have the example furnished by the authority and actions of Samuel, who, dedicated to him from childhood was a "prophet of the Lord," who as a priest built an altar, and, as we see in the case of Agag, was the medium through whom God conveyed his commands, and who played the part of both judge and executioner.
Of course we may expect that Egypt with its long history furnishes good evidence, and we find it. Here are relative facts from three authorities—Bunsen, Brugsch, and Erman.
"That the oldest laws were ascribed to Hermes, implies however nothing more than that the first germ of the civil law sprung from the Sacred Books, and that it was based in part upon the religious tenets which they contained."
Mentu-hotep, a priest and official of the 12th dyn., on his tomb, "prides himself on having been 'a man learned in the law, a legislator.'"
"The chief judge was always of highest degree; if he was not one of the king's own sons, he was chief priest of one of the great gods, an hereditary prince."
"All the judges of higher rank served Mo'at, the goddess of Truth, as priests, and the chief judge wore a small figure of this goddess as a badge round his neck."A court which held a sitting in the 46 of Ramses II consisted of 9 priests (prophets and priests) and one lay member, the registrar. But in another case (Ramses IX) the lay element preponderated.
Which last statement implies a step toward differentiation of the secular from the sacred in local administration.
To the circumstance that the Greek States did not become fully united has already been ascribed the fact that the Greek priesthood never became a hierarchy. Says Thirlwall—"the Greek priests never formed one organized body … even within the same State they were not incorporated." Hence the normal development of sundry professions is less distinctly to be traced. Nevertheless the relation between the priestly and the judicial functions is visible in a rudimentary, if not in a developed, form. Among the Greeks, as among the Hebrews, it was the habit in cases of doubt to "inquire of the Lord"; and the oracular utterance embodying the will of a god was made by a priest or priestess. Moreover, the circumstance that Greek laws were called themistes or utterances of the goddess Themis, as the mouthpiece of Zeus, shows that among the early Greeks, as among other peoples, a law and a divine fiat were the same thing. That systems of law were regarded as of supernatural origin, is also evidenced by the code of Lycurgus. Says Hase:—"The origin of his code was religious. A declaration of the Delphic god contains the fundamental principles of the measures by which he reconciled the rival claims" [of the Spartans]. That the non-development of a legal class out of a priestly class followed from the lack of development of the priestly class itself, seems in some measure implied by the following extract from Thirlwall:—
"The priestly office in itself involved no civil exemptions or disabilities, and was not thought to unfit the person who filled it for discharging the duties of a senator, a judge, or a warrior. … But the care of a temple often required the continual residence and presence of its ministers."
Possibly the rise of priest-lawyers, impeded by this local fixity and by want of co-operative organization among priests, may have been also impeded by the independence of the Greek nature; which, unlike Oriental natures, did not readily submit to the extension of sacerdotal control over civil affairs.
How priestly and legal functions were mingled among the early Romans is shown by the two following extracts from Duruy:—
The patricians "held the priesthood and the auspices; they were priests, augurs, and judges, and they carefully hid from the eyes of the people the mysterious formulae of public worship and of jurisprudence." The "servile attachment to legal forms [which characterized the early Romans] came from the religious character of the law and from the belief imposed by the doctrine of augury, that the least inadvertence in the accomplishment of rites was sufficient to alienate the goodwill of the gods."
It seems probable, indeed, that legal procedure consisted in part of ceremonies originally devotional, by which the god Numa was to be propitiated, and that the complex symbolic actions used were superposed. For of the judges, who "sat only on days fixed by the secret calendar of the pontiffs," it is said that "they did not admit the litigants to set forth simply the matters in dispute; mysterious formulæ, gestures, and actions were necessary." In further evidence of this priestly character of the judicial administration is the following statement of Professor W. A. Hunter:—
"Pomponius, in his brief account of the history of Roman Law, informs us that the custody of the XII Tables, the exclusive knowledge of the forms of procedure (legis actiones), and the right of interpreting the law, belonged to the College of Pontiffs."
And Mommsen tells us in other words the same thing.
But while we here see, as we saw in the cases of other early peoples, that the priest, intimately acquainted with the injunctions of the god, and able to get further intimations of his will, consequently became the fountain of law, and therefore the judge respecting breaches of law, we do not find evidence that in ancient Rome, any more than in Greece, Egypt, or Palestine, the advocate was of priestly origin. Contrariwise we find evidence that among these early civilized peoples, as at the present time among some peoples who have become civilized enough to have legal procedures, the advocate is of lay origin. Marsden says that in Sumatra—
"the plaintiff and defendant usually plead their own cause, but if circumstances render them unequal to it, they are allowed to pinjam mulut (borrow a mouth). Their advocate may be a proattin, or other person indifferently; nor is there any stated compensation for the assistance, though if the cause be gained, a gratuity is generally given."
So, too, from Parkyns we learn that the Abyssinians have a sort of lawyers—merely "an ordinary man with an extraordinary gift of the gab. These men are sometimes employed by the disputants in serious cases, but not invariably." Indeed, it must everywhere have happened in early stages when litigants usually stated their respective cases, that sometimes one or other of them asked a friend to state his case for him; and a spokesman who became noted for skill in doing this would be employed by others, and eventually a present to him would become a fee. It was thus among the Romans. After knowledge of the Twelve Tables had been diffused, and after the secrets of legal procedure had been disclosed by a secretary of Appius Claudius, there grew up a class of men, the jurisconsulti, learned in the law, who gave their advice, and also, later, advocates distinguished by their oratorical powers, who, as among ourselves, were furnished with materials and suggestions by lawyers of lower grade.
The superposing of civilizations and of religions throughout Northern Europe after Roman days, complicated the relations between religion and law, and between those who administered them. Nevertheless, the evidence everywhere points to the conclusion we have already reached.
Beginning with heathen times there may be put first the facts which Sir George Dasent gives us respecting the ancient Norse. He writes:—
The priest "was the only civil, just as he was the only religious authority minister and magistrate in one." "In trials … it fell on him [the priest] to name the judges, and to superintend the proceedings."
But it seems that even in those rude days there had come into existence non-clerical advocates.
"There were the lawmen or lawyers (lögmenn), a class which we shall find still flourishing in the time of which our Saga tells. They were private persons, invested with no official character." "They seem to have been simply law-skilled men, 'counsel' to whom men in need of advice betook themselves."
In harmony with these statements are those made by an authority respecting Old-English institutions, Mr. Gomme. He says—
"We learn from the historians of Saxony that the 'Frey Feldgericht' of Corbey was, in pagan times, under the supremacy of the priests of the Eresburgh." "There can be little doubt that the church or temple of primitive society was the self-same spot as the assembly-place of the people and the court of justice."
In support of this last conclusion it may be remarked that as in early times gatherings for worship afforded occasions for trading, so they also afforded occasions for legal settlements of disputes; and further that the use of the sacred edifice for this purpose (as among the Babylonians) was congruous with the conception, everywhere anciently entertained, that legal proceedings tacitly or avowedly invoked divine interposition—tacitly in the taking of an oath and avowedly in trial by judicial combat.
The conquest of northern heathenism by Christianity gradually led to subjugation of the heathen system of law by the system of law the Church imposed—partly its own, the canon law, and partly that inherited from Roman civilization, the civil law. The rules of conduct which, transmitted from the heathen priesthood, had become the common law, were in large measure overridden by the rules of conduct which the Christian priesthood either enacted or adopted. In early English days lay and clerical magnates co-operated in the local courts: laws derived from the old religion and from the new religion were jointly enforced.
"The clergy, in particular, as they then engrossed almost every other branch of learning, so (like their predecessors, the British Druids), they were peculiarly remarkable for their proficiency in the study of the law. . . . The judges therefore were usually created out of the sacred order, as was likewise the case among the Normans; and all the inferior offices were supplied by the lower clergy, which has occasioned their successors to be denominated clerks to this day."
But with the growth of papal power a change began. As writes the author just quoted, Stephen—
"It soon became an established maxim in the papal system of policy, that all ecclesiastical persons, and all ecclesiastical causes, should be solely and entirely subject to ecclesiastical jurisdiction only."
After the conquest, when shoals of foreign clergy came over, and when they and the pre-existing monastic clergy were bribed by endowments to support the Conqueror, the papal policy prevailed so far as to separate the ecclesiastical court from the civil court; after which "the Saxon laws were soon overborne by the Norman justiciaries." In subsequent reigns, according to Hallam—
"the clergy combined its study [i. e., the Roman law] with that of their own canons; it was a maxim that every canonist must be a civilian, and that no one could be a good civilian unless he were also a canonist."
Along with acceptance of the doctrine that the Christian high priest, the pope, was an oracle through whom God spoke, there was established in Christendom a theory of law like that held by ancient peoples: laws were divine dicta and priests divinely authorized interpreters of them. Under these circumstances the ecclesiastical courts extended their jurisdiction to secular causes; until, gradually, the secular courts were almost deprived of power: the removal of criminal clerics from secular jurisdiction and the penalty of excommunication on those who in any serious way opposed the clerical power, being of course efficient weapons. The condition of things then existing is well shown by the following statement of Prof. Maitland:—
"If we look back to Richard I.'s reign we may see, as the highest temporal court of the realm, a court chiefly composed of ecclesiastics, presided over by an archbishop, who is also Chief Justiciar; he will have at his side two or three bishops, two or three archdeacons, and but two or three laymen. The greatest judges even of Henry III.'s reign are ecclesiastics, though by this time it has become scandalous for a bishop to do much secular justice."
Not only were priests the judges and the interpreters of law, but they at one time discharged subordinate legal functions. In Germany, according to Stolzel, the notarial profession was in the hands of ecclesiastics. France, during the 13th century, furnished like evidence. Clerics played the parts of procureurs or attorneys, according to Fournier, who says:—
"lés ecclésiastiques ne pouvait, en principe, accepter ces fonctions que pour réprésenter les pauvres, les églises, ou dans les causes spirituelles."So, too, was it with, the function of advocate. Sainte Palaye writes—
"Loisel. . . remarks that in the time of Philip [the Fair] and since, the best of them were 'ecclesiastical persons instructed in the Canon and Civil Law, learning practice chiefly by the decretals.'"
However, according to Fournier, this function was limited to certain cases—
"le prêtre ne pent exercer les fonctions d'avocat si ce n'est au profit de son Eglise et des pauvres, et sans recevoir de salaire."
But in England, when ecclesiastics had been forbidden by the pope to make their appearance in secular courts, it appears that they evaded the prohibition by disguising themselves.
"Sir H. Spelman conjectures (Glossar. 335), that coifs were introduced to hide the tonsure of such renegade clerks, as were still tempted to remain in the secular courts in the quality of advocates or judges, notwithstanding their prohibition by canon."
From which it would seem that the "renegade clerks" became barristers who personally received the profits of their advocacy.
By what steps the complete secularization of the legal class was effected in England, it does not here concern us to ascertain. It suffices to observe the state of things now arrived at.
So long have our judges ceased to display any clerical attributes, that now, to the ordinary citizen, the statement that they were once priests is surprising. If there remains any trace of the original condition of things, it is only in such a fact as that the Archbishop of Canterbury retains the power of conferring the degree of Doctor of Civil Law; which degree, however, is one covering only a restricted sphere of practice. But, while, save perhaps in observance of certain ceremonies and seasons, separation of judicial functionaries from clerical functionaries has long been complete, separation of certain areas of jurisdiction has taken place quite recently. Until some five and thirty years ago ecclesiastical courts still had jurisdiction over some secular matters—testamentary and matrimonial; but they were then deprived of this jurisdiction, and retained none save over affairs within the Church itself.
In conformity with the usual course of things, while the legal profession has been differentiating from the ecclesiastical, there have been going on differentiations within the legal profession itself. Originally, beyond the judge and the two suitors there occasionally existed only the advocate—a functionary who, becoming established, presently rendered his services to defendants as well as to plaintiffs. Gradually these ancillary agencies have complicated; until now there are various classes and sub-classes of those who conduct legal proceedings.
The original body of tliem has separated itself primarily into two great divisions—those directly concerned in carrying on causes in law-courts and those indirectly concerned who prepare the cases, collect evidence, summon witnesses, etc. Within the first of these classes has arisen a partial distinction between those whose business is mainly in courts and those whose business is mainly in chambers; and there are further segregations determined by the different courts in which the pleadings are carried on. To which add the cross-division of this class into Queen's Counsel or leaders, and ordinary barristers or juniors. Then in the accessory class—lawyers commonly so-called—we have the distinction, once well recognised, between attorneys and solicitors, arising from the separate divisions of jurisprudence with which they were concerned, but which has now lapsed. And we have various miscellaneous subdivisions partially established, as of those mainly concerned with litigious matter and those mainly concerned with non-litigious matter; of those who transact business directly and of those who act for others; those who are parliamentary agents; and so on.
In their general character, if not in their details, the facts now to be named will be anticipated by the reader. He will look for illustrations of the integrating tendency, and he will not be mistaken in so doing.
Very soon after the divergence of the legal class from the clerical class had commenced, there arose some union among members of the legal class. Thus we read that in France—
"En 1274, le concile de Lyon, dans quelques dispositions relatives aux procureurs, les met à peu près sur le même pied que les avocats. C'est que dès lors les procureurs forment une corporation qui se gouverne sous l'autorité des Juges d'Eglise."
In England also it appears that the two processes began almost simultaneously. When the deputies of the king in his judicial capacity ceased to be wholly nomadic, and fixed courts of justice were established at Westminster, the advocates, who were before dispersed about the kingdom, began to aggregate in London, where, as Stephen says, they "naturally fell into a kind of collegiate order." Hence resulted the Inns of Court, in which lectures were read and eventually degrees given: the keeping of terms being for a long time the only requirement, and the passing of an examination having but recently become a needful qualification for a call to the bar. Within this aggregate, constituting the collegiate body, we have minor divisions—the benchers who are its governors, the barristers, and the students. This process of incorporation began before the reign of Edward I; and while certain of the inns, devoted to that kind of law which has now ceased to be marked off, have dwindled away, the others still form the centres of integration for the higher members of the legal profession.
Then we come to the lower members, who in early days became incorporated.
"It was ordained by stat. 4 Henry IV. c. 18, that allshould be examined by the justices, and by their discretions their names should be put in a roll: they were to be good and virtuous, and of good fame."
Other groupings of more modern and less coherent kinds have to be named. There is the Bar Committee, serving as an organ for the practising barristers; and there are the relatively vague unions of barristers who go the same circuits. For solicitors there is in London a central Law Society, along with which may be named Law Societies in leading provincial districts; and there are also various benevolent associations formed within these larger bodies.
Nor let us omit to notice how in this case, as in all cases, the process of integration has been accompanied by progress in definiteness. Early in its history the body of barristers separated itself by its regulations from the trading community; and then, more recently, it has increased its distinctness of demarcation by excluding those not adequately instructed. So too, with the body of solicitors. This has fenced itself round by certain regulations respecting admission, conduct, and practice, in such wise that by striking off the rolls those who have not conformed to the rules complete precision is given to the limits of the body.
And then, as serving to hold together these larger and smaller definitely consolidated aggregates, we have various periodicals—several weekly law-journals, and now also a law-quarterly.
A curious case of dual consciousness is recorded in the English journal Brain, by Dr. Lewis C. Bruce, late of the Derby Borough Lunatic Asylum, Deterioration is going on in the brain of the patient, but at different rates in the two lobes. Sometimes the right side alone acts; and then the patient talks Welsh, takes little interest in life, does not care for money or tobacco or for anything but his food, is left-handed, and is almost idiotic. When that side of the brain is inert and the left side is acting, the patient speaks chiefly English, is eager for money and tobacco, being even almost ready to steal them, and is right-handed. For a short interval between these two conditions, he mingles Welsh and English words, uses both hands, and is about halfway active. Of specimens of his handwriting in both stages, the Welsh can hardly be read and goes from right to left, while the English is legible, from left to right, and is generally normal. In either stage he seems to have no knowledge of what has passed in the other. The case seems to suggest that the two sides of the brain may have action independently of one another, and may be organs of communication with the external world of often very different degrees of power.