388 Election Recognizances, &c.-Historical Sketches of the Profession. The practice and proceedings of the select committee, and the power with which this body is intrusted, are of sufficient interest and importance to entitle them to be considered in a separate paper. HISTORICAL SKETCHES OF THE PROFESSION. or of electors admitted to defend the return. If the objection is allowed by four members, at least, of the general committee, the parties withdraw, and another committee is selected from the same panel, which may include any member not before objected to. If the chairman is objected to and the objection allowed, his name is sent back to the chairman's panel, who substitute another name from amongst No. 1. ATTORNEYS AND SOLICitors. their own body. If the members chosen to serve on the select committee are not It is manifest that coeval almost with objected to, or the objections taken to them the earliest establishment of courts of are disallowed, they constitute the select justice, there necessarily existed a body committee, and receive notice from the of officers engaged in the practical manageclerk of the general committee that they ment of the business of the court, preparhave been so chosen. But any member ing cases for its adjudication, stating them receiving such notice may attend the before the court, and assisting the parties general committee on the following day, in the discussion of the matters in issue. and satisfy them that there are circum- In the first instance, when the subjects of stances in his case affecting the impartial litigation were few and simple, the judge character of the committee which would heard the parties personally, and investirender him ineligible to serve. If the ob- gated the matters in question without jection thus suggested by a member as to much regard either to forms or modes of himself is considered valid, the general proceeding. There were no written pleadcommittee proceed to appoint another ings. The complainant stated his grievcommittee, precisely in the same manner ance, and the defendant was summoned to as if the objection had been taken by one attend; witnesses were heard, and the case of the parties to the petition. If the was summarily decided; restitution, paymember's objection is not considered by ment, or satisfaction was ordered; im"the general committee" of sufficient prisonment followed disobedience, and thus weight to render him ineligible to serve, the the controversy ended. previous appointment stands. This primitive mode of hearing and deAt the meeting of the House next after termining the claims of suitors was natuthe appointment of the select committee, rally succeeded by more formal proceedthe names of the members so appointed ings;-still, however, conducted orally. It are reported to the house, and the petitions may be inferred that even at this early and lists of voters objected to are annexed stage of litigation the parties, though reto such report. The members so reported quired to appear in person, were not withare then sworn by the clerk at the table, out some professional advice. The most "well and truly to try the matter of the ancient officers, of whom we have any petitions referred to them, and a true judg- authentic account, appear to be those who ment to give according to the evidence." assisted the judge in the capacity of clerks. If any member who has notice that he They were acquainted with whatever has been appointed to serve on a select might be dignified with the title of "the committee does not attend in his place to practice of the court," and the suitors, be sworn, he is ordered to be taken into doubtless, resorted to them for information the custody of the Serjeant-at-Arms, and and assistance in bringing their grievances the swearing of the committee is adjourned in a proper shape before the judge. to the next meeting of the house; and if When written proceedings were introon the day of adjournment all the members duced, these officers prepared the process do not attend at the table to be sworn, or if of the court and entered the proceedings sufficient cause be shown for the absence of on record. There can be little question any member, the committee is discharged that they not only performed certain funcand a new committee appointed by "the tions as officers of court, but also acted in general committee," in the manner already the capacity known till recently in all our courts as "side clerks." Skilled in the proper mode of conducting the proceed described. 67 & 8 Vict. c. 103, s. 66, and Wordsworth's ings, these officers were employed by the suitors to prepare their writs and pleadings, Election Law. Historical Sketches of the Profession. 389 and the other forms by which it became date of this book is uncertain. Chapter 2, necessary to approach the court. section 5, treats of countors or pleaders. It seems evident that as these clerks of That word "countors" is defined in the the court were stationed in their several 10th book as being derived from the mode offices, and transacted the technical busi- in which serjeants practised, because the ness from term to term, preparatory to the count or declaration comprehended the hearing or trial of a suit or action, the time substance of the original writ and the very arrived when the suitors required profes- foundation of the suit." "There are sional aid "out of court." Evidence was many," (says the Mirror of Justices,) to be collected from a distance, which it "who know not how to defend their causes was not within the province of the clerk in in judgment, and there are many who do; court to procure. Hence it may be pre- and therefore pleaders are necessary, so sumed arose an order of practitioners de- that that which the plaintiffs or actors cannominated in the old books of practice and not, or know not how to do by themselves, procedure "attorneys at large." For a they may do by their serjeants, attorneys, long time, although the suitors might thus or friends. Countors are serjeants skilful be professionally aided in civil, as they in the laws of the realm, who serve the were in criminal, proceedings, they were common people to declare and defend obliged to appear in person before the actions in judgment for those who have court. At length, however, the legislature need of them for their fees." authorised the suitors to appear by their It is worthy of remark, also, that the attorneys. This was obviously essential early enactments and decisions against to the attainment of justice, for it rarely malpractice relate as well to serjeants as happened that the litigant parties were attorneys. Thus the 3 Edw. 1, stat 1, equally competent to conduct their respective cases, either in preparing for the day of trial, or for the difficulties which accompanied the discussion before the court. Westm. c. 29, provides, "that if any serjeant countor, or any other, [which has been held to include attorneys and clerks in court,d] do any manner of deceit in the In the usual progress of society the King's court, or consent unto it in deceit general practitioner makes his appearance of the court, or beguile the court or the before the professed advocate; or rather, party, and thereof be attainted, he shall by whatever name he is distinguished, the be imprisoned for a year and a day, and same person performs the duties both of thenceforth shall not be heard to plead." attorney and pleader. As in the early In whatever order of precedence, as to establishment of our colonies, so probably time, we arrange the respective branches in the parent country, the limited extent of of the profession, there is no doubt that forensic business did not demand, and was not supplied with, two distinct classes of lawyers. It is not till subjects of controversy increase, till rights are defined, till trade and commerce is enlarged, till many contracts are made and broken, and property passes frequently from hand to hand, that the division of professional labour takes place. It is well ascertained that Queen's Counsel are comparatively of modern origin, Lord Bacon having been the first of that rank. At what precise time the Serjeants-at-Law were constituted, and when they first regularly attended the courts, seems to be very doubtful. The degree of the Coif, no doubt, existed whilst the pleadings were ore tenus, and prior to any records of the court or any "reports of cases adjudged." In the arguments on the late celebrated Serjeants' Case, Sir William Follett says, that the oldest book, in which reference is made to the serjeants, appears to be the Mirror of Justices. The the due administration of justice has ever been deemed of primary importance by the people of this country, who are remarkable for their warm attachment to the trial by jury, and their other early institutions, whereby the just decision of legal questions is promoted and secured. We need not, therefore, be surprised to find that the regulation of the officers and practitioners of our courts of justice should, from very early times, have been an important object in the contemplation of the legislature. We shall devote the remainder of the present paper to the statement and consideration of the various statutes and rules of court relating to the profession, in which it may be observed that the end to be attained was evidently the public good, by securing the due qualification and competency of attorneys appointed by the suitors and authorised to practice in the superior courts. 390 Historical Sketches of the Profession. THE STATUTES. not learned in the law, as they were wont to be before that time, it was ordered and 1235. Appointment of attorneys.-The established that all the attorneys should statute in which attorneys are first men- be examined by the justices, and by their tioned, was passed in the year 1235, namely, discretions, their name put on the roll; and the statute of Merton, 20 Hen. 3, c. 10. It they that were good and virtuous and of seems that prior to this time, suitors in civil good fame should be received and sworn suits, like those in criminal, were obliged well and truly to serve in their offices, and to attend in person. By that act it was especially that they made no suit in a provided, "that every freeman which foreign county; and the other attorneys oweth suit to the county, tithing, hundred should be put out by the discretion of the and wapentake, or to the court of his lord, justices; and that their masters for whom might freely make his attorney to do those they were attorneys be warned to take suits for him there." It may be reason- others in their places, so that in the meanably inferred, that there must have been a time no damage nor prejudice should come class of persons at this time in attendance to their masters. And if any of the at upon the courts in the character of attor-torneys died or ceased, the justices for the neys, ready to assist the suitors in the pro- time being by their discretion should make ceedings before the court, but unable to act another in his place, which was a virtuous without the presence of their clients. It man, and learned, and sworn in the same was evidently therefore a great boon to the manner as aforesaid; and if any such atsuitors, to relieve them from personal at- torney should be thereafter notoriously tendance, and to authorize them to appoint found in any default of record or otherwise, a fit and proper person to appear for them. he should forswear the court and never There were several other statutes passed, after be received to make any suit in any authorizing suitors to appoint attorneys, court of the King." viz., the statute of Westminster in 1275, 3 Edw. 1, c. 42; the statute of Gloucester in 1278, 6 Edw. 1, c. 8; the 2nd stat. of Westminster in 1285, 13 Edw. 1, c. 10; the stat. of York in 1318, 12 Edw. 2, c. 1; the stat. of Westminster in 1383, 7 Rich. 2, c. 14, and in 1405, that of 7 Hen. 4, c. 13. So far as to the power of appointing attorneys. Next came the enactments relating to their admission. 1322. Admitting attorneys.-In 1322, the stat. of Carlisle, 13 Edw. 2, c. 1, was passed, directing who should in future admit attorneys. It appears by this act, that the Chancellor of England and Chief Justices had authority, according to their discretion to admit attorneys, and the act provided, that the Barons of the Exchequer or the justices of the other courts should only admit attorneys in pleas where they were assigned, whilst the clerks and servants of the barons and justices were prohibited from admitting attorneys. Restrictions on attorneys.-Next came the enactments restricting particular persons from acting as attorneys, viz., in 1403: the 4 Henry 4, c. 19, ordained that no bailiff, steward, nor minister of lords or franchises which had return of writs, should be attorney in any plea within his bailiwick, and, in 1413, it was directed that undersheriffs and sheriff's officers should not be attorneys. This restriction has been repealed by the 6 & 7 Vict. c. 73. In 1455, 33 Henry 6, c. 7, the number of attorneys in Norfolk was limited to 6, in Suffolk to 6, and Norwich to 2, and they were to be elected and admitted by the two chief justices. From this period an interval of a century and a half elapsed before the attorneys became the subject of further legislative regulation. Many rules and orders of the superior courts were however made which will be hereafter adverted to. 1606. Fees and charges.-The next 1403. Examining attorneys.-Having statute in order of date was that of the thus authorised the appointment and ad- 3rd James 1, c. 7 which was passed in 1606, mission of attorneys, the next important and provided for the delivery of a bill of the act was that of the 4 Henry 4, c. 18, made fees and charges of attorneys, and directed in 1403, whereby it was directed "that at-that none should be admitted except those torneys should be examined as to their brought up in the courts or otherwise well virtue and learning, and if found in default, practised and of skilful and honest dispopunished." Thus, "for sundry damages sition, and they were restrained from allowand mischiefs which had ensued before ing other persons to practise in their that time to divers persons of the realm by names. a great number of attorneys ignorant, and 1729. After the act of James 1st, ano Historical Sketches of the Profession. 391 ther pause of more than a century occurred insure the personal attendance of the in professional legislation, extending to the attorney in his own court. year 1729, when the general act of 2 And by a rule of Michaelmas term, 1573, George 2, c. 23, was passed, com- every attorney was required to give his at prising numerous regulations, and pro tendance at the court on certain days in viding that the judges, before they admitted Term time. The rule for enforcing this persons as attorneys, should examine and personal attendance was repeated in Trinity inquire, by such ways and means as they Term, 1582, and again in Easter Term, thought proper, touching their fitness and 1614. capacity. In 1616, a rule was made to limit the Taxation of bills of costs.-The statute attorneys in each court to a competent of James, and particularly that of George number, and to remove the superfluous, the 2nd, provided means for regulating and wherein respect was to be had that the controlling the fees and disbursements of most unfit and unskilful persons be reattorneys and solicitors, subjecting them moved. to a summary taxation by an officer of the By a rule of Hilary Term, 1632, the court, and restraining the recovery of their following regulation was made regarding charges until so investigated. By these the service of a clerkship to an attorney and subsequent statutes various regula- before admission. "None hereafter shall tions were made to secure the qualifica- be admitted to be an attorney of this court tions of attorneys by service under articles by the space of six years at the least, or of clerkship, and finally by the 6 and 7 such as for their education and study in Vict. c. 73, recognizing expressly the the law shall be approved of by the justices necessity of an examination. Whilst by of this court to be of good sufficiency." this statute some acts of justice were done In 1645, it was ordered by a rule of to the attorneys by increased restrictions court, "That none should be admitted an on the encroachments of unqualified per- attorney unless he had practised five years sons, very extensive powers were willingly as a common solicitor in court, or had conceded by the profession for the taxa- served five years as a clerk to some judge, tion of all costs, whether relating to busi- serjeant-at-law, practising counsel, attor ness in court or not, or whether payable ney, clerk, or officer of one of the courts at by the client himself or a third party, and Westminster, and should on examination whether due to the attorney or his execu- be found of good ability and honesty for tors, and such taxation is allowed notwith standing the payment of the bill, if the special circumstances require it, provided the application be made within 12 months. THE RULES OF COURT. such employments, and that the court should once in every year, in Michaelmas Term, nominate 12 or more able and credible practicers-to continue for the ensuing year to examine such persons as should desire to be admitted attorneys, and ap Such is the general scope of the statutes, point convenient times and places for the so far as they can bear on the interests of examination; and the persons desirous of the public and the status of the practi- being admitted were first to attend with tioners. We now proceed to advert to the their proofs of service, then repair to the rules of the superior courts relating to the persons appointed to examine, and being practice of attorneys, their personal attend- approved, to be presented to the court and ance, in court and the means by which sworn." their due qualifications were sought to be Members of Inns of Court or Chancery.→→ enforced. The earliest rule of court re- Anciently all attorneys were required to lating to attorneys is that of the Common be members of one of the Inns of Court or Pleas in Trinity term, 1457, 35 Hen. 6, by Chancery, and to be in commons every which it was ordered, "That none attor- term. This regulation was enforced by ney ne none other make any manner of writ or process in any officer's name of the same place, saving only every officer in his own name," &c. In Michaelmas term, 1564, the attorneys of the Common Pleas were ordered not to practise in any other court except in causes touching themselves. This it is highly probable was deemed requisite to rules of the superior courts in 1632, and again in Michaelmas Term, 1654; Trinity Term 1677, and Michaelmas Term, 1684. The last of these rules was made in Michaelmas Term, 1704, in the reign of Queen Anne, of which the following is the sub. stance : "That all attorneys and clerks of the courts not already admitted into one of the 392 Historical Sketches of the Profession.—Metropolitan Law Society. New Statutes. Inns of Court or Chancery, shall procure to the Inns of Court or the Inns of Chanthemselves to be admitted into one of the cery. They might elect either the one or Inns of Court, (if those honourable solici- the other class; and they were required tors shall please to admit them,) or into to go into commons for the greater ease one of the Inns of Chancery, and take in transacting causes, and for the benefit of chambers there, (if conveniently they may their clients.' be held). METROPOLITAN AND PROVINCIAL THE Second Address of the Committee "That for the future no person whatsoever shall be sworn an attorney, or admitted, or entered a clerk of any of the courts or offices, unless first admitted of one of the Inns aforesaid, and bring and of Management has been sent to every atproduce, at the time of his being sworn an torney and solicitor not already enrolled attorney, or admitted or entered a clerk as amongst the members of the association. aforesaid, a certificate under the hand of It has also been transmitted to the members, the treasurer or principal of the Inn where- in order that they may promote the various of he is admitted, testifying such his ad- objects in view. Not only the committee, mission."" but many of the influential members of the general body, have availed themselves of the present opportunity of calling the attention of Members of Parliament to the grievances is thus prepared for a favourable consideraof which the profession complains. The way tion of many of the important topics comestablishment of the society has been wellprised in the Address of the association. The timed, and we augur favourably of its progress. sorbed in the business of their clients and The attorneys, indeed, are generally ab The same rule then recites, "That by the usage, custom, or orders of the Inns of Chancery, the members thereof were obliged to, and did, come into commons, and continue therein according to the orders of such society, to their great ease in transacting their causes one with an other, and much benefit to their clients, but of late most, or a great number, of the attorneys and clerks had neglected to come into commons, or continue therein, according to the respective orders of the said Inns rarely attend to their own interests. They of Chancery, to the great decay and detri- endure much importunity before they are ment of those societies. It was therefore aroused to action. We have often in these ordered that the attorneys and clerks which pages adverted to the progress of profesthen were and should be admitted into any bered more than two or three hundred sional societies. They have never numof the Inns of Chancery should come into even in London. The Incorporated Society and continue in commons, according to the is the only instance until now of a numerorders of such society. And in case any ous association. attorney or clerk should offend against this rule or any part thereof, such attorney of the metropolitan solicitors have joined It appears, however, that nearly 300 shall be put out of the Roll of Attorneys, the association, and about double that numand such clerk so offending should be dis- ber of the provincial. Considering the charged and displaced from such office." usual supineness of the body, this is a large The rule also directed, "That the re- congregation; doubtless it will be increased spective treasurers and principals of the by next term, and before the meeting of Inns of Chancery, and the antients, rulers, parliament the number will be all that the and governors of the same, should from promoters of the association can reasonably time to time procure a list of the names of expect. the attorneys and clerks who were not admitted of any of the Inns of Court or Chancery, and yearly deliver such list unto The Right Honourable the Lord Chief Justice, to the intent that the offenders might be compelled to give obedience to the same." It will thus be seen that the attorneys were required by a long series of rules of the courts at Westminster, to belong either e For further details, see Maugham's Treatise on the Law of Attorneys, 1825, 1839 and 1843. NEW STATUTES EFFECTING ALTERA- JUVENILE OFFENDERS. 1. Persons not exceeding 14 years of age committing certain offences may be summarily convicted by two justices. Justices may dismiss This act comes into immediate operation. |