The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface to the Fifth Edition
• Table of Mediaeval Cases
• Table of Modern Cases N.b. the Report References, Which Appeared In This Table In Earlier Editions, Will Be Found Incorporated In the Footnotes In the Text.
• Table of Laws and Statutes
• A Concise History of the Common Law
• Book One: a General Survey of Legal History
• Part 1: The Crown and the State
• Summary
• Chapter 1: The Anglo-saxon Period: Races and Religion
• Chapter 2: The Conquest to Henry II: The Beginnings of Administration
• Chapter 3: The Great Charters: Law Separates From Administration
• Chapter 4: Edward I to Richard II: Statutes and Social Revolution
• Chapter 5: The Fifteenth Century: the Problem of Enforcement
• Chapter 6: The Tudors: Renaissance, Reformation and Reception
• Chapter 7: The Stuarts: Struggle For the Supremacy of Law
• Chapter 8: The Eighteenth Century: Industrial Revolution
• Chapter 9: The Nineteenth Century: Liberalism and Reform
• Part 2: The Courts and the Profession
• Summary
• Chapter 1: The Communal Courts
• Chapter 2: Seignorial Jurisdiction
• Chapter 3: The Crown and Local Courts
• Chapter 4: The Jury
• Chapter 5: The Origins of the Central Courts
• Chapter 6: The Elaboration of the Judicial System: 1307-1509
• Chapter 7: The Tudors and the Common Law Courts
• Chapter 8: The Rise of the Prerogative Courts
• Chapter 9: Prerogative, Equity and Law Under the Stuarts
• Chapter 10: Parliament and the Privy Council
• Chapter 11: The Courts In the Nineteenth Century
• Chapter 12: The Legal Profession
• Chapter 13: The Growth of the Judiciary
• Chapter 14: Professional Literature
• Part 3: Some Factors In Legal History
• Summary
• Chapter 1: The Civil Law of Rome
• Chapter 2: The Canon Law of the Church
• Chapter 3: Custom
• Chapter 4: Legislation
• Chapter 5: The Principle of Precedent
• Book Two: Special Part
• Part 1: Procedure
• Summary
• Chapter 1: The Forms of Action
• Chapter 2: Civil Procedure
• Chapter 3: Pleading
• Part 2: Crime and Tort
• Summary
• Chapter 1: Criminal Procedure
• Chapter 2: The Felonies
• Chapter 3: Misdemeanours, Trespass and Tort
• Chapter 4: Liability, Civil and Criminal
• Chapter 5: Defamation
• Part 3: Real Property
• Summary
• Chapter 1: Feudalism
• Chapter 2: Feudalism In England
• Chapter 3: Inheritance and Alienability
• Chapter 4: Tenures and Incidents
• Chapter 5: The Rise of the Entail
• Chapter 6: The Common Law Estates Down to 1540
• Chapter 7: Uses and the Statute
• Chapter 8: The Later Law of Real Property
• Chapter 9: The Mortgage
• Chapter 10: Conveyances
• Part 4: Contract
• Summary
• Chapter 1: Origins
• Chapter 2: The Fourteenth Century
• Chapter 3: Assumpsit to Slade’s Case
• Chapter 4: Contract After Slade’s Case
• Chapter 5: Law Merchant and Admiralty
• Part 5: Equity
• Summary
• Chapter 1: The Early History of Equity
• Chapter 2: The Formative Period
• Chapter 3: The Work of the Chancellors
• Part 6: Succession
• Summary
• Chapter 1: Inheritance
• Chapter 2: Intestacy
• Chapter 3: Wills

CHAPTER 12

THE LEGAL PROFESSION

It is very difficult to say at what date professional lawyers first appear in the common law system. We could hardly expect to find them until there was a settled jurisdiction with regular courts; and, as we have seen, it took some time before these elementary conditions were reached. In this, as in many other matters, it is necessary to consider the local and the central courts separately if the discussion is to be put in the right perspective.

In the ancient local communal courts there was often some specialisation along legal lines, but those lines did not at all correspond to the present organisation of the profession. Certain legal functions became attached to certain pieces of land (eventually becoming hereditary like the land), but they were apparently judicial functions. We constantly find that attendance at courts is “real” and an incident of tenure; we even find some tenants holding by the services of advising the court, or of taking part in its sessions, when particularly difficult questions are under discussion, thereby sharing the peril of being amerced if a mistake occurred. But we hardly find any trace of lawyers who make a living by giving advice to actual or prospective litigants. The only trials in the Anglo-Saxon age which we can follow in any detail are important cases involving high ecclesiastical dignitaries, and yet even they seem to conduct their cases in person. There is no convincing evidence of a legal profession in the Anglo-Saxon period.1

THE ADVOCATUS

Even the word “advocate” is obscure in its early meaning. While the normal use of it to denote one who presents a litigant’s case in court for him is certainly old, yet it is often difficult to distinguish whether in any given case it may not mean that special protector whom churches and laymen sought in the dark ages, whose rights over laymen became a feudal seignory, and over churches the later advocatio or advowson.

NARRATORS AND ATTORNEYS

As for the central courts, for some time it seems that there were no professional advocates. Proceedings were informal, and at times (as Maitland remarked) hardly distinguishable from a family quarrel. The parties themselves presented their case as best they could before the King, who was attended by such nobles, clergy and trusted advisers as happened to be at court at the moment.

The growth of the King’s intervention, measured by the extension of the use of royal writs, had the effect that the hearings were now more commonly delegated to a group of courtiers (who in time became a regular bench), and inevitably, as soon as business was entrusted to deputies, it became necessary to confine them within a routine, a strict procedure, a set of forms and a system of pleading. These in turn necessitated the growth of a legal profession, for the public could hardly be expected to understand the newly invented office machinery of the King’s Court.

Under Henry II it is already apparent from Glanvill’s treatise that parties can appear in person or by substitute, and this “responsalis” seems already to be particularly concerned with the procedural steps of the case—the appearances, defaults, essoins and the like. Such a person may be a friend, a relative or (as often happened in the petty assizes) a bailiff. Early in the next century a fuller type of representation becomes general, and so in the time of Bracton we read much of the “attorney”, who had already proved more useful than the “responsalis”.1 The attorney is appointed by the party in court, under elaborate safeguards, and has power to bind his principal. His appearance or default is equivalent to that of his master; he has power to commit his master to a particular plea. Such a lawyer needs great integrity and diligence, although perhaps no great powers of intellect or learning other than procedural.

The attorney was a great convenience to wealthy landowners who were constantly involved in litigation and found it troublesome to appear personally, as also to ecclesiastical bodies and others, but law was becoming so complicated that the public needed further assistance of a different kind. Already in Henry III’s reign there are signs of a new type of professional lawyer. A plaintiff no longer felt confident that he could even tell his tale in court without making slips, while, as for the latter proceedings, they would certainly be even more tricky. So he would resort to an experienced narrator (or conteur as they put it in French), who told the tale for him. Very soon the narratores become a regular profession, and later still their exploits form the subject of the Year Books. On the other hand, they figure but little on the plea rolls, which are more concerned with the attorney, whose acts are binding on his principal.

It is somewhat difficult to say precisely when these two functions become the province of professional lawyers. When more plea rolls are printed it will be easy to trace the attorneys, for their names often appear in the pleadings and also in separate rolls of attorneys.1 The constant recurrence of the same names will show the existence of a profession, but at present there are few thirteenth-century plea rolls in print. The narratores are more elusive and the existing lists are conjectural—and even imaginative—for the earlier period.2 It would seem that the habit of enrolling certain details in the levying of fines (which are the source of our knowledge that certain persons were narratores) only began towards the close of the thirteenth century;3 failing this information, the reign of Henry III is necessarily represented only by casual scattered references.4

In the present state of our knowledge it therefore seems safe to say that there certainly were professional narratores and attorneys during the reign of Edward I, and that possibly these professions already existed under Henry III.

THE WRIT OF 1292 AND LEGAL EDUCATION

An inevitable result of the development of a professional element of this kind was the tendency to perpetuate itself by a system of legal education, and it is in this connection that we first find official recognition of the new state of affairs. In 1292 a royal writ was sent to Meetingham, C.J., and his fellows of the Common Bench, in these terms:

This brief order was evidently the result of mature reflection, for it is enrolled on the Parliament roll. The interpretation of it is not so easy. Mr Cohen’s attempt2 to simplify it by treating the word “attorneys” as an interpolation is not supported by the original roll, which is accurately printed. On the other hand, his suggestion that at this time the apprentice might, and sometimes did, act as attorney is supported by evidence,3 and the writ would indicate that both professions began with a common education.

It will be seen that this writ did not touch the existing pleaders, but merely made arrangements for perpetuating the profession by putting aspirants under the control of the court. The use of the word “apprentice” suggests that the student was attached to a practising lawyer whom he assisted in minor matters in return for instruction—such was the general nature of the apprenticeship system in the middle ages. On this point there is little light; but we soon find that the apprentices have a special enclosure, humorously called the “crib”,4 from which they could follow the proceedings in court. It is also clear that some of them were no tyros either; they will criticise the serjeants on occasion, and the earlier Year Books occasionally think it worth while to record “what was said in the crib”. The provisions of the writ that attorneys should be classified by counties were certainly put into effect, for such mediaeval evidence as exists shows that each county had its group of attorneys who confined their activities to business arising within their county. Whether this means that the attorney’s usual place of business was in the country with a town agent, or in town with a country agent, does not appear; but one of these arrangements must be presumed from the nature of the attorney’s duties.

The most remarkable features of the writ, however, are its policy of putting legal education under the direction of the court, and its promise to successful students of a monopoly of practice. The attorneys’ branch was henceforth a closed profession,5 reserved for those who had been educated to it, and admitted to it, in the official course. The fact that the writ applies to apprentices in general most probably means that it had a similar effect on the position of the narratores, although here the evidence is a little less clear.

Was this writ the beginning of legal education in England? Here we must distinguish. Even in the darkest age a few tags of legal learning persisted as part of the conventional study of grammar and rhetoric; the establishments of successive archbishops of Canterbury were an effective, if informal, school of law in the twelfth century; at Oxford there was already something like a law school in the middle of the century. The first we hear of law schools in London is that they were closed by royal edict1 in 1234, but, like the other instances of law teaching just mentioned, they can hardly have been schools of English law. London may have been in a peculiar position with regard to lawyers, for there were many courts there, or near by—royal, civic and ecclesiastical. In 1259 the writ abolishing law schools was followed by a royal grant that parties should not be compelled to retain counsel in small matters.2 Then came a reaction. In 1280 we read that the complaint is now that lawyers are not sufficiently educated—which is not at all surprising. The city authorities therefore refuse audience except to those whom they have admitted as knowing their work “reasonably well”; they further divide the profession into three branches, counters, attorneys and essoiners, each being confined to his special function.3 There is no evidence to suggest that the London bar and the Westminster bar had anything in common, but it is significant that both of them were in need of regulation and education almost at the same time.

Even manorial courts were being invaded by hired lawyers, and the tendency caused some alarm;4 the King himself shared this suspicion of professional pleaders, and in 1297 excluded them from the exchequer.5

EDUCATION IN COURT

The alternative to this system of education in court would have been education at the universities. That would have given a very different complexion to English law. Students would have learned either the civil law or the canon law, very frequently both; and would have learnt it from a cosmopolitan literature of texts and text-books. Such teaching would necessarily have been dogmatic and doctrinal, seeking principles common to many lands rather than the actual practice of any of them. If advocates trained in such schools had ever been admitted to the English bar during the middle ages, some sort of reception would have been inevitable. It must not be assumed that a reception then or later would necessarily have been a disaster—in the field of private law it might even have accelerated our progress considerably. The danger, if any there was, would lie rather in the adoption of Romanistic political theory which so frequently accompanied a reception of Romanesque law. Disaster or blessing, it is quite clear that the course of English legal history would have been very different if Edward I had looked to the universities instead of to the crowd of students haunting his courts at Westminster for the future generation of lawyers. This momentous decision had a significance which extended further even than the legal profession, as Maitland has pointed out in words which deserve quotation and reflection:

THE LAW AN OPEN PROFESSION

It is but natural that leading lawyers should begin to form marriage alliances, with the result that families arose with well-marked professional characteristics; the same thing happened among the nobility, the gentry, the merchants, and for a time even in the church.2 Nevertheless, “Edward I would not, like his uncle Frederick II, have closed the high offices of the law to all but the legal families, and so turned the class, as Frederick did the knightly class, into a caste.”3 Nor did seats in the king’s court become hereditary or vendible, as in the French parlements. As a result, the law together with the church constituted the two main avenues to fame and fortune which were open to men of outstanding ability, however obscure their origin.

NARRATORS BECOME SERJEANTS

The quiet and patient labours of the attorneys have assuredly not been without their influence on the law, but it was the more spectacular career of the newer branch that is most evident in the literature of our legal history. The narratores whose nimble fencing at the bar of the court became so essential to the success of an action at law must have seemed to the public, as well as to the students, the embodiment of all those qualities which are appreciated by lovers of intellectual combat. When the common law was still young and just setting out to extend its jurisdiction and enlarge its store of doctrine, a career at the bar must have been intensely exciting, and profoundly important for the development of the law. For some centuries they continued to be called, on certain occasions, by their old name of narratores, but in general use this term gave way to the title “serjeant-at-law”.1 The tempting coincidence that serjeanty was a tenure, that lawyers got “fees”, and did fealty to their “lords”,2 need not prove that serjeants were feudally provided with lands, although the word serjeant does seem to imply a rather more permanent relationship of employment than is usually the case with the ordinary litigant and his counsel. Indeed, even the word “counsel” suggests membership of a “council” such as great nobles retained during the middle ages to guide them in the management of their affairs.3

The word “serjeant” not only excludes merely casual engagement, but also lays stress on the employer. A serjeant is the serviens of someone, and it is a difficult problem to determine of whom. The Statute of Westminster I in 1275 speaks of “serjeant counters”, but the form serjeant-at-law as a settled title (and not merely as a description) is hardly earlier than 1310, and as it occurs at that date in a writ4 from the King commanding William Herle to “take the state and degree of serjeant at law” it has been argued that a serjeant was so called because he was the King’s serjeant. “The servientes begin and end as servientes regis; other people employ them and regis is dropped.” The fact that the Crown as early as 1310 (if we can trust to Coke’s memory) began to appoint “serjeants” just at the moment when the word becomes commonly associated with lawyers, lends a good deal of support to this theory. On the other hand, there is the difficulty of explaining how it was that serjeant became co-terminous with narrator: can it be that the Crown retained the whole bar?5 In the fifteenth century we have only serjeants and apprentices, with no intermediate grade;6 what then had become of the narratores? If we are not bound to hold that all serjeants were the King’s serjeants,7 then it is easier to account for the change as merely a change of style.

THE WORK OF THE SERJEANTS

The functions of the serjeant are easily distinguished from those of the attorney. The arguments, the clever altercations which at this period seem to be conducted ex tempore (later they will be committed to writing with great particularity as written pleadings), the offering of exceptions and answering them, the groping through masses of doubtful facts and uncertain law in search for a safe point on which to take issue, the arguments upon the inevitable faults in process, and upon the legal consequences of an ascertained state of facts—all this is the highly skilled work of the serjeants. To it they brought various and profound legal learning above all, supported by quick wit, resource and ingenuity—sometimes even a clever fallacy may be tried; but the bench consists of men who have already passed by the bar, and from the Year Books it is clear that the court was not easily fooled, and good-naturedly it would sometimes remind a serjeant so. Once when an extra subtle point was raised, the court was unimpressed; the judge remembered that he himself had once resorted to it while at the bar taking a case for which there was nothing better to be said.1 The court constantly declined to be lured into discussions too far removed from the question judicially before it; it would sometimes close a discussion where it suspected that the apprentices had manufactured a difficult case for the sake of enjoying the arguments upon it.2 Even a bona fide case involving difficult questions would be adjourned term after term until the parties found a compromise, rather than allow the court to be enticed out of its depth. The proceedings were therefore as practical as contemporaries could make them; no unnecessary pedantry or cleverness, and above all no oratory. Nowhere during the middle ages do we find a trace of rhetoric in the English courts. True to their administrative origin, they kept themselves in a strictly business attitude. It is only after the Renaissance that we find the bad old classical tradition of Greece and Rome which turned lawsuits into an oratorical contest appearing in England.

The earliest Year Books show us the serjeants conducting these altercations (which later are so carefully arranged by counsel in written pleadings) orally in court, and apparently with little previous knowledge of what lay behind them or of which way they would turn. It seems that there was always room for surprise, and that each side did its utmost to conceal the facts from the other side. From this it will be seen that a successful serjeant depended upon quick thinking in order to understand his own case and his opponent’s, for it would seem that hardly any work was done on a case before it came into court. It is not surprising, therefore, that the group of serjeants practising in the last years of Edward I was small, very busy and amazingly clever. As we shall later see, the Year Books of this period are full of admiration for the brilliant serjeants whose feats of intellect are there recounted, and the modern reader can entirely share that feeling; from 1290 to 1310 there was a very brilliant bar in England.

As we have seen, the early serjeant was rather in the dark about his case until he had wrung a few admissions from his adversary. Consequently, what a serjeant said might or might not correspond to the facts of the case. Those facts are in the knowledge of the party but not of his serjeant, unless he has seen fit to enlighten him. So when there is a chance that an alleged state of facts may be material to the decision of the case, the serjeant has to “get himself avowed”, that is to say, procure a confirmation or denial by the party or his attorney of the statement made by the serjeant. The party therefore has the advantage of a second thought before he finally commits himself to the line of action proposed by the serjeant.

The serjeants from the beginning held a high place in the legal world; we soon find Parliament referring hard questions to the serjeants as well as to the judges, and quite early in the fourteenth century the Crown adopts the policy of recruiting the bench from the outstanding men at the bar. Wherever this policy has been thoroughly adopted, the result is a remarkable relationship of goodwill and understanding between judge and barrister, which permits of real co-operation in the administration of justice. A spirit of hostility or distrust between bench and bar, on the other hand, inevitably adds to the length of proceedings, without improving the quality of the product.

LATER HISTORY OF THE SERJEANTS

In the course of the fourteenth century the serjeants consolidated their position, becoming a close guild in complete control of the legal profession. Within their fraternity are united the bench and the leaders of the bar; the junior practitioners (who have developed out of the old class of apprentices) are outside the guild but under its supervision, and so too is the whole system of legal education. By the close of the fourteenth century the judges are all members of the order of serjeants, and serjeants alone can be heard in the principal court, that of Common Pleas. Their dignity increased with their emoluments, which must have been enormous; they ranked as knights and surrounded themselves with elaborate and costly ceremonial. The creation of a serjeant obliged him to provide a feast comparable to a king’s coronation, to distribute liveries and gold rings in profusion, and to maintain the proceedings for seven days. Their numbers were always low, as can be seen by the fact that every serjeant had his own pillar in St. Paul’s Cathedral which served him as office and consultation room.1 The fact that apprentices were able to sustain these heavy charges and to become serjeants indicates that they too did not labour without reward. In the middle ages counsel conferred directly with their clients, and contracts for fees were enforceable in law. The serjeant’s dress varied considerably at different dates, the most constant element being the coif, a close-fitting cap of white silk or linen fastened under the chin; hence the term “order of the coif” for the guild of serjeants. For the rest, they used on solemn occasions a long robe with short cape and hood which was party-coloured, the left side and the right being of different colours. In later times they wore on ordinary occasions a red robe (somewhat like the present judges’ scarlet robes, but without the fur), and later still, black. All these (like academic and most other robes) were derived from what used to be the ordinary civilian dress in the middle ages. No part of English judicial costume is of ecclesiastical origin, as is sometimes erroneously stated.1 In 1877 the order was dissolved, Serjeants’ Inn sold, and the proceeds divided among the surviving members.

APPRENTICES, BARRISTERS AND INNS

When the writ of 1292 speaks of “apprentices” it is clear that it means literally learners; but it is equally clear less than a century later that the term has ceased to be appropriate and that its meaning has radically changed. In the assessments for Richard II’s poll-tax of 1379 “every serjeant and great apprentice of the law” is taxed at the same rate as a baron, “other apprentices following the law” pay only half, and “all the other apprentices of less estate” one sixth.2 Great apprentices are therefore as wealthy as serjeants, barons and aldermen of London. Similarly, when a commission to inquire into the possibility of legal reforms was appointed in Parliament in 1381 its composition was fixed at eight members—two justices, two serjeants and four lawful apprentices.3 These apprentices were therefore men of eminence in their profession, competent to give the government useful technical advice, and some of them were of sufficient substance to be taxed on the highest scale of the profession, on a par with the bulk of the nobility.

Another curious anomaly. When Fortescue wrote in the fifteenth century he likened the serjeants to the doctors in the universities. There was indeed an external resemblance, perhaps the result of deliberate imitation. The red robe, the coif (equivalent to the doctor’s hat), the costly feast on taking the degree, the requirement of having delivered two readings—are all closely parallel to university traditions. But in essentials there was a grave difference. The degree of doctor entitled one to teach, but the degree of serjeant was actually a disqualification. If the doctors of the common law did not teach, however, the “students” did, and so we have the curious fact of legal education being conducted by apprentices.1

Their life centred in the Inns of Court, which, like a university, provided for their general education and common life. Here they studied law and many other things—history, music and dancing, for example—and this full and fashionable education made the Inns a great resort for the youth of wealthy and noble families, even although they had no intention of practising law. In the beginning of the seventeenth century it was in the Middle Temple Hall, before the Queen and a fashionable audience, that Shakespeare’s play Twelfth Night was first performed. There were more than a dozen such inns, and during the fourteenth century the apprentices changed their quarters many times, leasing first one inn, then another. In exactly the same way came into existence some of the halls at Oxford and Cambridge. It may be that these groups of apprentices formed round some senior master who headed their community and directed their studies, while the bench approved the arrangement and permitted the master to choose those whom he considered fit for call. The largest of these inns were Lincoln’s Inn, Gray’s Inn, the Middle Temple and the Inner Temple, but their early history is largely conjectural. Of the numerous smaller inns (which have not survived), even less is known with certainty. In time, the inns acquired a roughly uniform type of constitution; the benchers formed a governing body somewhat similar to the fellows of a college at Oxford or Cambridge, while the readers conducted an elaborate system of legal instruction. It was from among the readers that the serjeants were chosen. Next below the readers came the utter (or outer) barristers,2 who were the most notable rank among the apprentices and were privileged to argue in the mock trials or moots3 which were staged for the instruction of the students. Below them were the inner barristers, who soon are known simply as “students”. There were also some professional attorneys, until in the later middle ages they were excluded from the Inns of Court. As numbers grew, subsidiary inns were formed subject to one or the other of the four great inns, and these were called Inns of Chancery;4 finally these Inns of Chancery were reserved for attorneys and solicitors only.

SEVENTEENTH-CENTURY CHANGES

Coming to the seventeenth century, we find that numerous developments took place. The class of attorneys rapidly grew. The barrister now looked upon the attorney as a superior sort of clerk; this was justifiable, for the attorneys were now regarded as technically part of the clerical staff of the courts. For this reason, the attorneys were the more likely to be in contact with the client, receiving his instructions and only consulting a barrister when difficulties arose. Attorneys therefore did the bulk of the more straightforward conveyancing and drafting of pleadings, while the barristers acted as consulting experts. In this way, the attorney was actually the client of the barrister, rather than the layman who had first engaged the attorney. The barrister asserted a social superiority by declining to sue for his fees (the rule appears in 1629-1630), although attorneys continued to do so. In the meanwhile, many students of the Inns of Court specialised in pleading and conveyancing, and practised as members of new sub-divisions of the legal profession as “pleaders”, “equity draftsmen” and “conveyancers”. There was no need for such men to be called to the bar, and as a rule they were not. They were therefore described as “practitioners under the bar”; generally they were members of an Inn of Court, however, and therefore subject to the inn’s professional discipline. The attorneys, on the other hand, being thrust out of the Inns of Court in the middle of the sixteenth century,1 were in a difficult position, until about 1729 we find that a “Society of Gentlemen Practicers in the Courts of Law and Equity” was established for their government and protection, together with the solicitors.

SOLICITORS, PLEADERS AND CONVEYANCERS

The courts of equity—Chancery, Star Chamber, Court of Requests—were differently organised. The permanent clerical establishment of each of these courts undertook the duties of attorneys, and so professional attorneys had no place there. Still, there remained numerous duties of a quasi-legal character which had to be done, and litigants soon found it convenient to have a sort of law agent who would set the complicated machinery in motion by engaging and conferring with the various branches of the profession as occasion required, and doing other duties, sometimes of a legal and sometimes of a business character. These were the “solicitors”. When they first appear in the fifteenth century they seem more business agents than lawyers, but by the seventeenth century they have won a place beside the attorneys and a recognised standing, especially as practising in courts of equity.

During the eighteenth century these various branches continued to exist side by side. An act of 1729, subsequently renewed, imposed regulations upon attorneys and solicitors, and formed the basis of future development.1 At the same time the act imposed rather heavy taxation upon these practitioners. By the nineteenth century, the solicitors gained a definite lead over the other branches of the profession, and although there were still a few conveyancers and pleaders licensed to practise, the profession for all ordinary purposes in England now consists of two branches only, barristers and solicitors.

Sir Frederick Pollock has made an interesting suggestion that the development of the profession in the eighteenth century had been influenced by the fact that Roman Catholics were prevented by the Test Act2 from practising at the bar. Instead of becoming barristers, therefore, Roman Catholics who took to the law practised as pleaders and particularly as conveyancers. A famous example is Charles Butler, and the last of a distinguished line of Catholic conveyancers was H. W. Challis, who died in 1898. Sir Frederick concludes:

Even at the present day the scale of costs to which solicitors are entitled is complicated and archaic, bearing striking witness to the fact that in origin the solicitors were more concerned with running errands and doing clerical work than with advising clients on general legal problems. By modern statutes solicitors have acquired the right of audience in the inferior courts.

NOTARIES AND SCRIVENERS

Of the other branches of the legal profession below the bar the only one which survives is that of the notary, which in England is of slight importance, except for foreign and ecclesiastical matters. In 1884 it was stated that there were only forty-eight notaries in England.4

The scriveners were originally scribes, but soon undertook to draft for the public the commoner sorts of deeds—especially bonds. They often acted as intermediaries between borrowers and lenders, and themselves earned an unsavoury reputation as merciless usurers. For a moment the scriveners seemed likely to become professional conveyancers, but the other branches of the profession withstood them, and eventually they turned to the more lucrative, if less learned, parts of their traditional work.1

THE LATER BARRISTERS

A few words must now be said upon the later developments which took place among the barristers. The exclusive right of audience which the serjeants enjoyed in the Court of Common Pleas was one of the causes of the attempts made by other courts, especially King’s Bench and Exchequer, to enlarge their jurisdiction so that matters originally cognisable in the Common Pleas could be determined in these other courts without resort to the expensive services of a serjeant.2 These attempts were highly successful and upon their success was built the development of the barristers’ position.

LAW OFFICERS OF THE CROWN

Far from being merely an “apprentice”, the barrister had now ample opportunities for practice in courts of equity and common law, and the Crown itself began to offer dignified offices to barristers just as in earlier times certain serjeants, called King’s serjeants, had enjoyed a preeminence in their order. Two of these offices—those of Solicitor- and Attorney-General—are of special importance, and something must be said of their history.

All through the middle ages the Crown employed a considerable number of attorneys to represent it in the various courts, and in 1461 we find the appearance of a “solicitor” as well. It is clear that these officials performed the same duties for the King as they would have done for private clients, with the sole difference that the Crown could give them much more business, and so the royal solicitors and attorneys had greater opportunities for making profits. In the course of the fifteenth century these numerous attorneys were replaced by a single attorney (later called the attorney-general) who had the right to appoint deputies; he therefore became something like a permanent official with a staff of assistants. But even so, it was a long time before the attorney-generalship came to be filled by men of any eminence. Until the middle of the sixteenth century promotion to the bench was the exclusive privilege of the serjeants, who considered the offices of solicitor-and attorney-general beneath the dignity of their order. When these offices became too important to be held by mere solicitors and attorneys, it was therefore the barristers and not the serjeants who aspired to them. Moreover, after the middle of the sixteenth century we find with increasing frequency that attorneys-general are promoted directly to the chancellorship or to the chief justiceship of one of the benches (a practice which is still generally followed), thus leaving the serjeants with only a puisne judgeship in view.1 As long as the order of the coif lasted, however, membership of it was still a technical requirement for a seat on the bench of a common-law court, and so an attorney-general who was promoted chief justice of either bench was simultaneously created serjeant in order to qualify for it.

From 1530 we find the custom established of appointing the King’s solicitor to succeed the King’s attorney upon a vacancy in the latter office, and this is still the general practice at the present day. These two officers soon began to extend their functions and acquired the position of general legal advisers to the government; in Elizabeth’s reign we already find her solicitors elected members to the House of Commons (or else summoned to the House of Lords—occasionally both) in order to explain and defend the government’s legal policy before the House. For a long time, however, the House of Commons declined to allow the attorney-general to be a member, fearing that the influence of the Crown in the House would thereby be enhanced to a dangerous degree. Objections gradually ceased after the Restoration, and after the Revolution the attorney-general was regularly elected a member of the House of Commons, but his summons to the House of Lords had become a mere formality.

The rapid rise in importance of these officers is largely due to the fact that the mediaeval King’s serjeant was no longer big enough to cope with sixteenth-century conditions. The rise of new courts and the extension of the jurisdiction of old ones had far outgrown the limits within which the serjeant cared to act, and his ancient monopoly was now in fact an irksome restriction. Indeed, the position of the law had changed considerably under the Tudors. Justice was no longer the exclusive concern of judges and serjeants, assisted by the humble attorney. It was now an affair of state requiring constant attention from the Crown, which was viewing with some anxiety the activities of its courts. The Reformation settlement brought with it numerous questions which had to be settled in the courts—questions of land titles arising out of the dissolution of the monasteries, questions of criminal law created by the insecurity of the dynasty, and still more difficult questions of constitutional law due to the inadequacy of the mediaeval financial system. All these problems needed a newer point of view than that of the serjeants complacently resting on their monopoly. As we have already noticed, there was a chance of the Crown turning to the civilians for exponents of a newer technique of law and government; but in the end a sort of compromise was worked out. The attorney- and solicitor-general served as links between the executive and the legal system, and the practice of promoting the attorney-general to the highest judicial offices ensured the presence on the bench of men who had not merely a legal training such as that of the serjeants, but also experience of government gained in the inner circle of politics. In this way the law was brought once more into vital contact with the world of affairs and politics. That contact was necessary if the law was to continue as a growing system, but the dangers were of the gravest, as the history of the Stuart judiciary will show.

A single attorney-general and solicitor-general were, of course, unable to deal with the mass of business created by the sixteenth-century State, and it therefore became necessary for them to secure a more or less permanent staff of assistants. We therefore find the rise at the same time of the class of “King’s Counsel Learned in the Law”. These were barristers upon whose services the Crown had a prior claim, and their duties were largely to assist the attorney-general and solicitor-general when called upon. They ranked next below the serjeants in Elizabeth’s reign and already had regular precedence and seats in Parliament upon the woolsacks. It was Bacon who did a great deal to define the position of the King’s Counsel and secured for them a life fee. By the close of the eighteenth century, however, the tendency was to regard the title of King’s Counsel as merely a mark of distinction with purely nominal duties.1

DEPARTMENTAL LEGAL STAFFS

The eighteenth century saw the creation of numerous commissions and boards for the conduct of national administration, and they naturally looked ultimately to the law officers of the Crown for their legal assistance. For ordinary matters, however, they soon felt the need of the exclusive services of a legal staff of their own, and so we find them appointing solicitors to assist them. The oldest and most important of these is the Treasury Solicitor, whose office dates from about 1655. He often acted for other departments besides the Treasury,2 and by statute other similar offices have been amalgamated with his; thus he became Director of Public Prosecutions for a time,3 and is still King’s Proctor.

[1]The portion of Herman Cohen’s History of the English Bar (London, 1929) dealing with the Anglo-Saxon and Norman ages collects every available scrap of evidence.

[1]For the intricate distinction at different dates between responsales and attorneys, see Holdsworth, ii. 316; Herman Cohen, History of the English Bar, 128; Glanvill (ed. Woodbine), 262; Plucknett, The Mediaeval Bailiff, 15.

[1]John de Hotoft in 1307 received pensions and payments as the “attorney and councillor” of many magnates, but denied that he was thereby a conspirator: Sayles, King’s Bench (Selden Society), ii. cxxxv.

[2]For example, the list prefixed to Pulling, Order of the Coif.

[3]The procedure is explained by G. J. Turner in Y.BB. Edward II (Selden Society), iv. xv; compare Pike in Y.BB. 16 Edward III, ii. xi, and 20 Edward III, ii. xii.

[4]Collected by Herman Cohen, History of the Bar, 172 ff.

[1]Rot. Parl., i. 84. Long afterwards, substantially the same provisions were imposed by statute 4 Henry IV, c. 18 (1402), and in 1455 the judges were consulted on a petition to reduce the number of attorneys in Norfolk from 80 to 6 only: Rot. Parl., v. 326 no. 57.

[2]Herman Cohen, History of the Bar, 283.

[3]Cohen, op. cit., 283.

[4]Y.BB. Edward II (Selden Society), ii. xvi, iv. xli.

[5]In so far as it was exercised for reward. Unprofessional attorneys constantly appear, e.g. husband for wife, bailiff for lord. Clerks of the courts often acted as attorneys for members of the public: G. O. Sayles, Select Cases in King’s Bench,i, xcviii, H. G. Richardson in Transactions of the Royal Historical Society (1932), 66-68, T. W. Simons in University of Colorado Studies, xxii. 381-396.

[1]Close Rolls (1234-1237), 26-27. For comments, see H. G. Richardson, Azo, Drogheda and Bracton, English Historical Review, lix. 40.

[2]Liber de Antiquis Legibus, 42-43.

[3]Liber Custumarum, i. 280.

[4]Maitland, Select Pleas in Manorial Courts, 136.

[5]Text in G. O. Sayles, Select Cases in King’s Bench,i, cv. n. 3.

[1]Y.BB. Edward II (Selden Society), i. lxxxi.

[2]See the examples in R. Foreville, L’Église et la royauté (Paris, 1943), 393.

[3]Stubbs, Constitutional History (1875), ii. 189-190.

[1]“Serjeant-counter” is a transitional form; Cohen, Origins of the English Bar, Law Quarterly Review, xxxi. 61-65.

[2]Brevia Placitata (Selden Society), 135, explains that clerks, counters, champions or serjeants may do fealty or homage but are not thereby necessarily bound to do suit of court.

[3]See above, p. 217 n. 1.

[4]The text is known only from 10 Rep. xxxix; see the discussion of the whole matter by Herman Cohen, History of the English Bar, 185 ff.

[5]In 1321 “evil councillors” abetted Edward II in retaining the élite of the serjeants, so that good counsel could not be had against the crown: B. Wilkinson in English Historical Review, lxiii. 20; Chronicles of Edward I and Edward II (ed. Stubbs, Rolls Series), ii. 62-64.

[6]So too under Richard II; Rot. Parl., iii. 58, 101, which are referred to more fully below, p. 224.

[7]Some of the serjeants were specially distinguished above their fellows as “King’s serjeants” (Y.B. 20 & 21 Edward I, 442, and Y.B. 21 & 22 Edward I, 222, are possibly early examples from 1293; Geoffrey Scrope and Herle in 1321 had fees as King’s serjeants: Herman Cohen, History of the English Bar, 287); if all serjeants ever were the King’s, then this would show that the fact had been forgotten.

[1]Y.B. 15 Edward III (Rolls Series), 390.

[2]Y.B. 33-35 Edward I (Rolls Series), 64.

[1]Sed quære: Herman Cohen, History of the Bar, 490 n.

[1]See the admirable article “Robes” in the Encyclopaedia Britannica (11th edition).

[2]Rot. Parl., iii. 58. (This list will repay study; it is a most interesting outline of the structure of English society in the time of Chaucer.)

[3]Rot. Parl., iii. 101.

[1]By way of digression it may be noted that law students abroad were notable for their independence. At Bologna they reversed the usual order of things, and instead of that university being ruled by the masters, it was ruled by the students, who imposed a very strict discipline upon the professors. Our own apprentices required the resignation from the inn of those members who became serjeants.

[2]The word first occurs in 24 Henry VIII, c. 13, s. 3 (1533)—Herman Cohen in Law Quarterly Review, xlvi. 405-406.

[3]The importance of these moot cases may be judged from the fact that they sometimes appear in the old reports: see an example in Pound and Plucknett, Readings, 130.

[4]For these, see Tout, Collected Papers, ii. 143 ff.

[1]H. H. L. Bellot, Exclusion of Attorneys from the Inns of Court, Law Quarterly Review, xxvi. 137.

[1]2 Geo. II, c. 23.

[2]25 Charles II, c. 2.

[3][1926] Journal of the Society of Public Teachers of Law, 38; with which compare Law Quarterly Review, xiv. 219.

[4]Christian, Short History of Solicitors, 226.

[1]H. C. Gutteridge, The Profession of Notaries, in Cambridge Legal Essays (1926). There is much material concerning scriveners and money-lending in R. H. Tawney’s edition of Wilson’s Discourse upon Usury.

[2]However, serjeants did at times appear in other courts than the Common Pleas.

[1]If a serjeant became attorney- or solicitor-general, his appointment as serjeant was revoked (as in the case of Sir John Popham in 1579).

[1]There are still numerous important details which in England differentiate the K.C. from his fellow barristers.

[2]Holdsworth, xii. 11.

[3]By the Prosecution of Offences Act (1884) until the offices were separated by the Prosecution of Offences Act (1908).