The Origins of Legal Aid
As the chapters in the book demonstrate, how we choose to narrate the history of legal aid determines who we see as historical actors. Although it is not our intention to concretise any particular story of legal aid, one posÂsible origin of legal aid in Europe begins in 451.
The Council of Chalcedon formalised the Catholic Church’s policy that clergymen ought to provide legal counsel and representation to widows, orphans, and others in need. This policy was based on Scriptures that imposed on Christians the duty to help the poor and defend them against exploitation.[2] With time, as canonÂists developed the canon law, a doctrine on legal aid to widows, orphans, and the poor emerged. The mid-twelfth-century Decretum Gratiani, for example, affirmed the responsibility of bishops to help the poor with their legal problems. St. Thomas Aquinas discussed the question in his Summa Theologiae (1265-1274), equating legal aid to the poor with other acts of mercy. Giving legal assistance to the poor was a charitable responsibility of an advocate; however, one could not obligate an individual advocate to solely give free legal aid. In the thirteenth century, Pope Honorius III issued a decretal, authorising judges to appoint advocates for those who would otherwise be left without representation. However, the question of how to finance legal aid was as pressing then as it would become centuries later: should advocates donate their services as a charity or should they be compensated from public funds? Both ways seem to have been used. Moreover, canon law created the office of advocatus pauperum (advocate for the poor), an official paid by the Church to represent poor people in ecclesiastical courts.[3] In addition, according to canon law doctrine, poor people were exempt from paying court fees.[4] This exemption is known by the Latin term in forma pauperis (“in the character of a pauper”)—and still today, is part of legal aid provided to the indigent, along with legal aid for litigation and legal advice outside of court proceedings.By the mid-thirteenth century, the question of legal aid had become topical outside of Church courts, and legal aid spread to secular courts, as well. This had begun in Northern Italian towns. Three different types of legal aid or assistance emerged. In the first, legal aid was seen as the profesÂsional duty of advocates. The second option was for the town to pay for advocates to represent poor litigants on a case-by-case basis. Some towns adopted a third possibility: appointing an advocate for the poor whose salÂary was paid from public funds.[5] Indeed, even today, some versions of these three alternatives are commonly used across the world.
Not surprisingly, the first thorough organisation of legal aid in Europe dates to the same time in the twelfth and thirteenth centuries as the legal profession emerged in Continental Europe.[6] From Church courts and Italian town courts, legal aid spread elsewhere. Many rulers saw it as their duty to protect personae miserabiles, and this included some form of legal aid.[7] Examples abound in medieval and early modern Europe. Spanish royal chanceries began appointing poor’s advocates (abogados de pobres) in the thirteenth century.[8] In the County of Savoy, Count Amadeus VI (r. 1343-1383) created the office of poor’s advocate in 1379.[9] In turn, the German Chamber Court (Kammergericht) appointed advocates to help poor litigants in 1471. The Chamber Court’s successor, the Imperial Chamber Court (Reichskammergericht), founded in 1495, continued this practice. Since the mid-sixteenth century, indigent people were also exempt from court costs at the Imperial Chamber Court.[10] In the Swiss town of Lucerne, exemption from court costs (German: Armenrecht) was first introduced in the late-sixteenth century.[11] In England, some serjeants may have provided legal counsel to poor people by the late thirteenth century, but evidence of this is hard to find before the late fifteenth cenÂtury.
In 1495, the English Parliament passed a statute on exemption from court fees in forma pauperis and declared that judges ought to assign advocates to handle poor people’s cases without fees.[12]However, in practice, few people of limited means could expect to receive legal assistance. For example, in England, there were ongoing complaints that lawyers did not fulfil their duties to provide counsel to the poor.[13] Moreover, at least since the twelfth century, the nature of poverty and its causes were debated, and a distinction made between the “deservÂing” and “undeserving” poor which affected how poor relief was granted in the early modern period. Those who were seen as having caused their own poverty—vagrants, for example—were not considered as worthy of poor relief. This view affected legal aid, as well. The German Imperial Chamber Court began to view the criteria of who constituted the worthy poor more strictly in the sixteenth century. In the Low Countries, as well, the division into “deserving” and “undeserving” poor probably influÂenced early modern law courts when they decided on granting legal aid.[14] Medieval and early modern legal aid was reliant on the benevolence of individual rulers and cannot be equated with modern publicly funded legal aid.[15]