1911 Encyclopædia Britannica/Advocate

ADVOCATE (Lat. advocatus, from advocare, to summon, especially in law to call in the aid of a counsel or witness, and so generally to summon to one’s assistance), a lawyer authorized to plead the causes of litigants in courts of law. The word is used technically in Scotland (see Advocates, Faculty of) in a sense virtually equivalent to the English term barrister, and a derivative from the same Latin source is so used in most of the countries of Europe where the civil law is in force. The word advocatus is not often used among the earlier jurists, and appears not to have had a strict meaning. It is not always associated with legal proceedings, and might apparently be applied to a supporter or coadjutor in the pursuit of any desired object. When it came to be applied with a more specific limitation to legal services, the position of the advocatus was still uncertain. It was different from, and evidently inferior to, that of the juris-consultus, who gave his opinion and advice in questions of law, and may be identified with the consulting counsel of the present day. Nor is the merely professional advocate to be confounded with the more distinguished orator, or patronus, who came forward in the guise of the disinterested vindicator of justice. This distinction, however, appears to have arisen in later times, when the profession became mercenary. By the lex Cincia, passed about two centuries B.C., and subsequently renewed, the acceptance of remuneration for professional assistance in lawsuits was prohibited. This law, like all others of the kind, was evaded. The skilful debater was propitiated with a present; and though he could not sue for the value of his services, it was ruled that any honorarium so given could not be demanded back, even though he died before the anticipated service was performed. The traces of this evasion of a law may be found in the existing practice of rewarding counsel by fees in anticipation of services.

The term advocatus came eventually to be the word employed when the bar had become a profession, and the qualifications, admission, numbers and fees of counsel had become a matter of state regulation, to designate the pleaders as a class of professional men, each individual advocate, however, being still spoken of as patron in reference to the litigant with whose interest he was entrusted. The advocatus fisci, or fiscal advocate, was an officer whose function, like that of a solicitor of taxes at the present day, was connected with the collection of the revenue. The lawyers who practised in the English courts of common law were never officially known as advocates, the word being reserved for those who practised in the courts of the civil and canon law (see Doctors’ Commons). There was formerly an important official termed his majesty’s advocate-general, or more shortly, the king’s advocate, who was the principal law officer of the crown in the College of Advocates or Doctors’ Commons, and in the admiralty and ecclesiastical courts. He discharged for these courts the duties which correspond to those of the solicitor of the treasury (see Solicitor). His opinion was taken by the foreign office on international matters, and on high ecclesiastical matters he was also consulted; all orders in council were submitted to him for approval. The office may now be said to be obsolete, for after the resignation of Sir Travers Twiss, the last holder, in 1872, it was not filled up. There was also a second law officer of the crown in the admiralty court called the admiralty advocate. This office has long been vacant. Advocate is also the title still in use in some of the British colonies to denote the chief law officer of the crown there. For instance, in Sierra Leone (until 1896), Lagos and Cyprus he is called the king’s advocate; in Malta, crown advocate; in Mauritius, procureur and advocate-general, and in the provinces of India advocate-general. In France, the avocats, as a body, were reorganized under the empire by a decree of the 15th of December 1830. There is, however, a distinction between avocats and avoués. The latter, whose number is limited, act as procurators or agents, representing the parties before the tribunals, draft and prepare for them all formal acts and writings, and prepare their lawsuits for the oral debates. The office of the avocat, on the other hand, consists in giving advice as to the law, and conducting the causes of his clients by written and oral pleadings. The number of avocats is not limited; every licentiate of law being entitled to apply to the corporation of avocats attached to each court, and after presentation to the court, taking the oath of office and passing three years in attendance on some older advocate, to have himself recognised as an advocate.

In Germany the advocat no longer forms a distinct class of lawyer. Since 1879, when a sweeping judicature act (Deutsche Justizgesetzgebung) reconstituted the judicial system, the advocat in his character of adviser, as distinguished from the procurator, who formerly represented the client in the courts, has become merged in the Rechtsanwalt, who has the dual character of counsellor and pleader.

In the middle ages the word advocatus (Fr. avoué, Ger. Vogt) was used on the continent as the title of the lay lord charged with the protection and representation in secular matters of an abbey. The office is traceable as early as the beginning of the 5th century in the Roman empire, the churches being allowed to choose The advocatus ecclesiae.defensores from the body of advocates to represent them in the courts. In the Frankish kingdom, under the Merovingians, these lay representatives of the churches appear as agentes, defensores and advocati; and under the Carolingians it was made obligatory on bishops, abbots and abbesses to appoint such officials in every county where they held property. The office was not hereditary, the advocatus being chosen, either by the abbot alone, or by the abbot and bishop concurrently with the count. The same causes that led to the development of the feudal system also affected the advocatus. In times of confusion churches and abbeys needed not so much a legal representative as an armed protector, while as feudal immunities were conceded to the ecclesiastical foundations, these required a representative to defend their rights and to fulfil their secular obligations to the state, e.g. to lead the ecclesiastical levies to war. A new class of advocatus thus arose, whose office, commonly rewarded by a grant of land, crystallized into a fief, which, like other fiefs, had by the beginning of the 11th century become hereditary.

In France the advocati (avoués) were of two classes—(1) great barons, who held the advocateship of an abbey or abbeys rather as an office than a fief, though they were indemnified for the protection they afforded by a domain and revenues granted by the abbey: thus the duke of Normandy was advocatus of nearly all the abbeys in The French avoué.the duchy; (2) petty seigneurs, who held their avoueries as hereditary fiefs and often as their sole means of subsistence. The avoué of an abbey, of this class, corresponded to the vidame (q.v.) of a bishop. Their function was generally to represent the abbot in his capacity as feudal lord; to act as his representative in the courts of his superior lord; to exercise secular justice in the abbot’s name in the abbatial court; to lead the retainers of the abbey to battle under the banner of the patron saint.

In England the word advocatus was never used to denote an hereditary representative of an abbot; but in some of the larger abbeys there were hereditary stewards whose functions and privileges were not dissimilar to those of the continental advocati. The word advocatus, however, was in constant use in England to denote the patron of an In England.ecclesiastical benefice, whose sole right of any importance was an hereditary one of presenting a parson to the bishop for institution. In this way the hereditary right of presentation to a benefice came to be called in English an “advowson” (advocatio).

The advocatus played a more important part in the feudal polity of the Empire and of the Low Countries than in France, where his functions, confined to the protection of the interests of religious houses, were superseded from the 13th century onwards by the growth of the central power and the increasing efficiency of the royal administration. They had, indeed, long ceased to be effective for their original purpose; and from the time when their office became a fief they had taken advantage of their position to pillage and suppress those whom it was their function to defend. The medieval records, not in France only, are full of complaints by abbots of their usurpations, exactions and acts of violence.

In Germany the title of advocatus (Vogt) was given not only to the advocati of churches and abbeys, but to the officials appointed, from early in the middle ages, by the emperor to administer their immediate domains, in contradistinction to the counts, who had become hereditary princes of the Empire. The territory so administered was known asThe German Vogt. Vogtland (terra advocatorum), a name still sometimes employed to designate the strip of country which embraces the principalities of Reuss and adjacent portions of Saxony, Prussia and Bavaria. These imperial advocati tended in their turn to become hereditary. Sometimes the emperor himself assumed the title of Vogt of some particular part of his immediate domain. In the Netherlands as well as in Germany advocati were often appointed in the cities, by the overlord or by the emperor, sometimes to take the place of the bailiff (Ger. Schultheiss, Dutch schout, Lat. scultetus), sometimes alongside this official.

See Du Cange, Glossarium (ed. 1883, Niort), s. “Advocati”; A. Luchaire, Manuel des institutions françaises (Paris, 1892); Herzog-Hauck, Realencyklopädie (ed. Leipzig, 1896), s. “Advocatus ecclesiae,” where further references will be found.