vitude; but if the licence of any convict be revoked, he may be committed to prison, and compelled to undergo the residue of his sentence.1

In modern Acts, when offences are punished by imprisonment, the duration is usually limited, so as not to exceed three years, or at the utmost four years, and not unfrequently the imprisonment is accompanied with hard labour.

The principal part of the English criminal law is contained in the Criminal Law Consolidation and Amendment Acts of 1861, 24 & 25 Vict. c. 94 to 100.2

1 These two statutes are now modified by 27 & 28 Vict. c. 47 (25th July 1864). The minimum period of penal servitude is fixed at five years, or, in case of previous conviction, at seven years. The Act also relates to corporal punishment for offences committed in prison, and to licences granted under these penal servitude Acts.

2 See Treatise on these Acts by

Charles S. Greaves, 2d ed., Svo,
London, 1862.

The principal Acts are-c. 100, relating to offences against the person; c. 96, relating to larceny and other similar offences; c. 97, relating to malicious injuries to property; c. 98, relating to indictable offences by forgery; c. 99, relating to coinage offences (United Kingdom).

CHAPTER VI.

OF THE ROMAN BAR.

were

IN the earliest times the Romans were more addicted to the First pleaders profession of arms than to the study of law and eloquence. Every head of a patrician house had a number of dependants, patrons. who looked up to him as their protector, and owed him certain obligations in return. This was the relation of patron and client. One of the ordinary duties of the patron was to assist his client in lawsuits, and defend him before the tribunals.

The first pleaders who appeared at the Roman bar were not jurisconsults; but when the science of law became more difficult and complicated, the pleaders began to apply themselves to the study of jurisprudence, and a new class of public men arose, who combined the double character of able speakers and great jurisconsults. During the republic, the bar was held in high estimation, and was the principal field for attaining the honours of the state.

under the

empire.

Till the close of the republic, pleaders were generally Advocates termed patroni. Under the empire they were usually called advocati, and sometimes causidici. In a short rescript of Valentinian and Valens, declaring it to be incompatible for any one to be judge and advocate in the same suit, the three terms patronus, advocatus, and causidicus, are all used in the same sense.1

1 66

Quisquis vult esse causidicus, inter arbitros et patronos oportet non idem in eodem negotio sit advo- esse delectum."-C. 1. 6. 6. catus et judex: quoniam aliquem

Costume.

Duration of

In private causes it was customary to deliver to the advocate a brief drawn up by a jurisconsult, in which questions of law were fully discussed. Besides, the advocates were frequently assisted at the bar by a lawyer of a second order, who was called leguleius or formularius, and sometimes

monitor.

Among the Romans the costume of the advocates was the white toga, which at one period was common to all the citizens. By the lower class this began to be given up about the time of Cato the Censor, and it had almost fallen into disuse at the end of the republic, except among the senators and equestrians. Under Augustus advocates were compelled to assume the ancient costume at the bar. Before long the toga was nowhere to be seen except in courts of justice; and the expression togati, which Cicero and Virgil had applied to the whole Roman people, became at last the usual designation of the advocates.

Whether any limitation was imposed on the length of the pleadings. oral pleadings in early times is uncertain; but in the age of

Cicero this seems to have been left to the discretion of the judge, especially in private causes. In criminal trials Pompey made a regulation, that the accuser should not be entitled to speak for more than two hours, nor the accused for more than three hours; but the parties were sometimes allowed to exceed these limits when the nature of the cause appeared to require more time. Not long afterwards the judges were again invested with discretionary power to regulate the period to be occupied by the speeches according to the importance of the affair. In criminal causes the time was usually divided in the proportion fixed by the Pompeian regulation, so that if six hours were allowed to the accuser, nine hours were allowed to the accused.1

A clepsydra was used in the tribunals for measuring time by water, similar in principle to the modern sand-glass. When the judge consented to prolong the period assigned for discussion, he was said to give water-dare aquam. "As for myself," says Pliny, "whenever I sit upon the bench. Pliny, Ep. iv. 9.

1

(which is much oftener than I appear at the bar), I always give the advocates as much water as they require; for I look upon it as the height of presumption to pretend to guess before a cause is heard what time it will require, and to set limits to an affair before one is acquainted with its extent, especially as the first and most sacred duty of a judge is patience, which, indeed, is itself a very considerable part of justice. But the advocate will say many things that are useless. Granted. Yet is it not better to hear too much than not to hear enough? Besides, how can you know that the things are useless till you have heard them?"1

Marcus Aurelius, we are told, was in the habit of giving a large measure of water to the advocates, and even permitting them to speak as long as they pleased.

By a constitution of Valentinian and Valens, A.D. 368, advocates were authorised to speak as long as they wished, upon condition that they should not abuse this liberty in order to swell the amount of their fees.

Sometimes the pleadings were very long for, if we are to believe Quintilian, it was a species of glory for an advocate that he had spoken a whole day for one party. Regulus fatigued the judges with interminable harangues. In the trial of Marcus Priscus before the senate, Pliny, who opened the case, spoke nearly five hours. On another occasion, he tells us, he spoke for seven hours before the centumvirs and a crowded audience, with success equal to his great fatigue.2 According to ancient custom, one counsel only appears to Number of have been allowed on each side. Afterwards the number was increased.

Cicero defended Celius with Crassus; Cornelius Balbus with Pompey and Crassus; P. Sextus with Hortensius and other members of the bar. Scaurus had six advocatesCicero, Hortensius, M. Marcellus, P. Clodius, Calidius, and Messala Niger. Occasionally the number rose so high as twelve counsel for one party in the same trial.

Of this practice Cicero disapproved, conceiving it to be attended with great inconvenience, and contrary to the ancient 1 Pliny, Ep. vi. 2. 2 Pliny, Ep. ii. 11, and iv. 16.

counsel.

Remuneration of pleaders.

institutions of the bar. Under the empire the number of counsel employed was reduced, and seldom exceeded two or three on each side. When the accused had no advocate, it was customary for the judges to appoint one to act for him. Hortensius and Cicero, we are told, sometimes defended pickpockets; and Asinius Pollio, the friend of Augustus, pleaded cases about mean-walls.1

For some centuries after the foundation of Rome, the profession of an advocate did not exist; because the duty of patron, which included the defence of clients before the tribunals, was discharged by the patricians, who formed the first order among the citizens. No remuneration was then given for forensic pleading beyond the usual services which every client owed to his patron. After the ancient institutions were modified, and law became a complicated and difficult science, presents of various kinds were given by clients to those persons who devoted themselves to pleading. This practice having been regarded as an abuse, a law was passed by the Tribune Cincius, B.C. 204, prohibiting any one from taking money or gifts for pleading causes; but as this law imposed no penalty on those who contravened its injunctions, it was little observed, and the opinion gained ground that advocates who required to devote their time to the special studies of their profession were entitled to receive some recompense for their services.

Before the overthrow of the republic it was quite common to give large fees to advocates. M. Licinius Crassus, whose fortune is said to have exceeded three millions sterling, exacted exorbitant sums from his clients, and the same charge has been made against P. Clodius and C. Curio. Cicero himself, who lost no opportunity of boasting of his respect for the Cincian law, and who is represented by his enthusiastic admirers as a model of disinterestedness, is strongly suspected of not having always put in practice the principles which he professed. There are many reasons for believing that the sum of a million of sesterces (about £8000), which he received from Publius Sylla, then under impeachment, 1 Quint. iv. 1. Grellet-Dumazeau, Barreau Romain, Paris, 1851, p. 38.