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donis et muneribus ne quis ea ob causam orandam caperet.” If gifts were prohibited, à fortiori contracts for payments would not be allowed. This prohibition of all gifts for advocacy was further enforced by Augustus in the year 732 A.U.C., commanding advocates to plead gratuitously, and for breach they were ordered to refund fourfold. This prohibition against all gifts to advocates was relaxed in a time of great debasement, when, according to the passage in Tacitus referred to by Blackstone (Anal. lib. 11, c. 7), “Non quicquam publicæ mercis tam venale fuit quam advocatorem perfidia.” The Senate sought to enforce the Cincian law forbidding all gifts for protection against abuses on the part of advocates. Sicilius, an advocate of singular infamy, offered some of the arguments which have been urged in support of mercenary advocacy. The Emperor took an intermediate course, and by a decree fixed the maximum which an advocate might lawfully receive by way of gift at 801., and made him liable to refund if he took more. The words of Tacitus are—“Claudius capiendis pecuniis modum statuit ad dena sestertia quem egressi repetundarum tenerentur.” The Senate made a further effort in the same direction, passing a law that every suitor before he took any step in the suit should swear that he had neither given nor contracted to give any money for advocacy. Pliny, in the passage referred to by Blackstone (Epist., lib. 5,21), writing of a new edict by a prætor to enforce practically some recent laws, says:—“Sub edicto erat senatus consultum, hoc omnes qui quid negotii haberent, priusquam agerent, jurare jubebantur nihil se ob advocationem cuiquam dedisse promisse, cavisse. His enim verbis et mille præterea et venire advocationes, et emi vetabantur. Peractis tamen negotiis permittebat pecuniam duntaxat decem millia dare.” Although after this time gifts within the limited amount were lawful, still contracts with advocates during litigation are not shown to have been ever at any time sanctioned by the law of Rome. Mr. Kennedy referred to the Digest, lib. 50, tit. 13, art. 10 and 12, to prove that an advocate could sue for his fee under the extraordinary cognizance of the preses, but we do not find that these articles prove his contention. Art. 10 seems to relate to a suit by a client against an advocate to make him refund so much of a fee already paid as exceeded the legitimate amount, and gives the principle for estimating what that amount should be:- In honorariis advocatorum ita versari debet judex ut pro modo litis, pro advocati facundiâ, et fori consuetudine in quo acturus erat estimationem, adhibeat dummodo licitum honorarium non egrediatur.” The article concludes with a rescript applicable only to refunding part of a fee:-“Eam duntaxat pecuniam qux modum legitimum egressa est repetere debet.” Art. 12 relates to securities and bargains for fees, and gives the rule when a suit can be maintained thereon. The effect seems to be that a promise while the litigation is pending does not bind, but that a security given after the cause is at an end may be enforced if the sum secured, together with the sums paid, does not exceed the legitimate amount.' We have now considered as much of the authorities referred to as seems to us to be relevant, and in our judgment they support the propositions on which the defendant relies-viz., that the relation of counsel and client in litigation creates an incapacity to contract for hiring and service as an advocate. If the authorities were doubtful, and it was necessary to resort to principle, this same proposition appears to us to be founded on good reasons. The facts of the present case forcibly show some of the evils which would attend both on the advocate and the client if the hiring of counsel was made binding. In this case the advocate by disclosing words of intimate confidence which passed in moments of helpless anxiety has raised the phantom of a contract for a sum of monstrous amount, and of this we hope we may say that there is no one in the profession of the plaintiff who would be willing to accept from him this verdict of 20,0001. as a gift. In the present case, too, if the client compares the competence and peace secured for her by her former advocate with the perils and the miseries of wearisome litigation derived from her later advocate, the contrast may suggest to her that gratuity is preferable to contract as a mode of remunerating advocates. But it is not merely on such considerations as these that this law is based. The incapacity of the advocate in litigation to make a contract of hiring affects the integrity and dignity of advocates, and so is in close relation with the highest of human interests -namely, the administration of justice. We are aware that in the class of advocates, as in every other numerous class, there will be bad men taking the wages of evil, and therewith also, for the most part, the early blight that awaits upon the servants of evil. We are aware, also, that there will be many men of ordinary powers performing ordinary duties without praise or blame; but the advocate entitled to permanent success must unite high powers of intellect with high principles of duty ; his faculties and acquirements are tested by a ceaseless competition proportioned to the prizes to be gained-tbat is, wealth, and power, and honour without, and active exercise for the best gifts of mind within. He is trusted with interests, and privileges, and powers almost to an unlimited degree. His client must trust to him at times for fortune, and character, and life. The law trusts him with a privilege in respect of liberty of speech, which is in practice bounded only by his own sense of duty; and he may have to speak upon subjects concerning the deepest interests of social life, and the innermost feelings of the human soul. The law also trusts him with a power of insisting on answers to the most painful questioning; and this power, again, is in practice only controlled by his own view of the interests of truth. It is of the last importance that the sense of duty should be in active energy proportioned to the magnitude of these interests. If the law is that the advocate is incapable of contracting for hire to serve, when he has undertaken an advocacy, his words and acts ought to be guided by a sense of duty — that is to say, duty to his client, binding him to exert every faculty and privilege and power, in order that he may maintain that client's right, together with duty to the Court and himself, binding him to guard against abuse of the powers and privileges entrusted to him
right. If an advocate with these qualities stands by the client in time of his utmost need, regardless alike of popular clamour and powerful interest, speaking with the boldness which a sense of duty can alone recommend, we say the service of such an advocate is beyond all price to the client, and such men are the guarantees to communities for the maintenance of their dearest rights, and the words of such men carry a wholesome spirit to all who are influenced by them. Such is the system of advocacy intended by the law, requiring the remuneration to be by gratuity ; but if the law allowed the advocate to make a contract of hiring and service, it may be that his mind would be lowered, and that his performance would be guided by the words of his contract, rather than by 'principles of duty ; that words sold and delivered according to contract, for the purpose of earning hire would fail of creating sympathy and persuasion in proportion as they were suggestive of effrontery and selfishness, and that the standard of duty throughout the whole class of advocates might be degraded. It may also well be that, if contracts for hire could be made by advocates, an interest in litigation might be created, contrary to the policy of the law against maintenance, and the rights of attorneys might be materially sacrificed, and their duties be imperfectly performed by unscrupulous advocates; and these evils, and others that may be suggested, would be unredeemed by a single benefit that we can perceive. The subject has been often and ably discussed, so that we have already said more than sufficient. We would only add that in the growth of the English law the advocates have been important agents in establishing liberty of thought and speech and action, which has resulted from the contests in Courts where such liberty has been contended for. The English advocates in our historical trials are entitled to be gratefully remembered, and it must not be forgotten that their minds were trained in the practice of advocacy without any contract. So also the Roman jurists are entitled to be gratefully remembered, because their intuitive sense of right showed to them where right was in the conflicts of interest perpetually arising, as the relations of man to man multiplied ; and their words have helped to guide succeeding generations in their search for right, when similar conflicts arose. And it must not be forgotten that throughout the Roman system it was held that an advocate and a Professor of Law would be degraded by a contract of hiring, and that his reward was to be gratuitous. Mr. Kennedy has cited the Digest, lib. 50, tit. 13, arts. 10 and 12, on which we have remarked above. The title relates to the limits of the extraordinaria cognitio of the preses ; and it may not be superfluous to add art. 5, expressly excluding therefrom suits by the class of Professors of Law, for a reason applicable to all advocates. On principle, then, as well as on authority, we think that there is good reason for holding that the relation of advocate and client in litigation creates the incapacity to make a contract of hiring as an advocate. It follows that the requests and promises of the defendant and the services of the plaintiff created neither an obligation nor an inception of obligation, nor any inchoate right whatever, capable of
VOL. XIV.-NO. XXVIII.
being completed and made into a contract by any subsequent promise. By reason of that incapacity the present case is distinguished from “ Lampleigh v. Brathwaite” and the cases following thereon. In all of them the defendant was assumed to have received from the plaintiff such a valuable consideration as would have made a valid contract, if a promise had been made before the consideration had passed. Here the defendant received nothing from the plaintiff which was capable of forming a consideration to support a promise, at whatever time such promise may have been made. In “Lampleigh v. Brathwaite” it was assumed that the journeys which the plaintiff performed at the request of the defendant, and the other services he rendered, would have been sufficient to make any promise binding if it had been connected therewith in one contract. The peculiarity of the decision lies in connecting a subsequent promise with a prior consideration after it had been executed. Probably, at the present day, such service on such request would have raised a promise by implication to pay what it was worth, and the subsequent promise of a sum certain would have been evidence for the jury to fix the amount. On the same principle, the cases cited in sequel to “Lampleigh v. Brathwaite” were also distinguished. In each of these cases the defendant had, by the permission of the plaintiff, received value belonging to the plaintiff which was sufficient to support any promise. As to one class, the original promise was excluded by the Statute of Frauds; but a subsequent promise was held to be evidence to support an action on an account stated (“Pinchon v. Chilcot,” 3 Car. and P., “Sego v. Dean,” 4 Bing, 459, “Cocking v. Ward," 1 C.B., 858). As to another class, a claim in equity to money was converted into a cause of action at law by an express promise to pay it to the plaintiff (“Roper v. Holland,” 3 Ad. and E. 99, “ Topham v. Morecraft,” 8 Ad. and E. 972, “More v. Hill," 2 Peak, 10). For these reasons we think that the plaintiff's case is not within the principle of "Lampleigh v. Brathwaite," and we do not consider it to be our duty to extend the application of that principle. With respect to the claim for compensation for leaving Birmingham and coming to London, and for services in issuing publications for the purpose of creating a prepossession in favour of the defendant, there are several answers, of which two will suffice. The first is that these services were ancillary to the service as an advocate, and if the principal service could not be the subject of a contract, neither could any service which was merely accessory thereto and of no value without the principal. The second is, that the account is stated of the total of the claims, and if any one of the claims of undefined amount is to be omitted the statement of the account is disproved, and the action founded on such statement of account fails. We have now gone through the whole of the case, and we come to the conclusion that the plaintiff has not established a cause of action. It follows that the rule must be made absolute to enter the verdict for the defendant. If the judgment on this part of the rule should be reversed in a Court of Error, it will then be our duty to dispose of the remaining part relating to a new trial; and, following the
precedent in “Betts v. Menzies” (28 L. J., Q. B., 370), we order the part of the rule relating thereto to be suspended until further order.
Mr. ex-Justice Crampton died, on the 29th December, of bronchitis, at his residence, near Enniskerry, in the 81st year of his age. He was called to the Irish bar in 1810, and was subsequently professor of law in Trinity College, Dublin. In 1830, Mr. Crampton was appointed Solicitor-General for Ireland ; and in 1832 was appointed a judge in the Court of Queen's Bench, from which office he retired on a pension in 1858.
The Benchers of Gray’s-inn have resolved that the arms of Mr. Napier, ex-Lord Chancellor of Ireland, shall be placed in a compartment of one of the windows of their hall. The right hon. gentleman has acknowledged the compliment in a letter to the treasurer, of which the following is a copy :
4, Merrion Square, S. “Dear Mr. Treasurer,--I have to return my cordial thanks to the benchers of Gray's-inn for the honour which they have conferred upon me by the resolution, a copy of which you have now forwarded. My early connection with your ancient inn has been agreeably revived by the genuine hospitality with which, in common with the Attorney-General for Ireland (Mr. Whiteside), and other distinguished members of the Irish bar, who had been admitted to Gray'sinn, I have been greeted in the hall by the masters of the bench in recent years.
To be had in memory within the venerable walls where the illustrious Bacon found an early home and a retirement at the last for his chastened spirit, where so many of the greatest lights and ornaments of our profession have been admitted and held in honour-statesmen, senators, and judges-men who have guided the councils, moulded the laws, and administered the justice of this free and happy realm, to be associated with such companions in arms, “the noble living and the noble dead,” is a distinction of which
any man might be justly proud. To me, as an Irishman, it is doubly gratifying. It assures me of a professional regard as mutual and as kindly as our private friendship, and it harmonizes with the desire now cherished by us all to assimilate the judicial systems of the two countries as the best security for the pure administration of justice in both. It may encourage the student as he treads the path which leads to preferment and honour, when he finds the way is open alike to Irish as to English competition. The Irish bar is honourably connected with Gray's-inn, which can boast of judges of the superior courts and law officers of the Crown in Ireland among its distinguished members. I trust that this happy and auspicious connection may not only be perpetuated, but extended. Among the benchers of Gray's-inn there are companions of my Parliamentary life, and friends whom I have long esteemed and valued ; and I know not any honour which could be more grateful than this which they