¹ Full length works include Cohen, H., History of the English Bar and Attornatus to 1450 (1929)Google Scholar; Ives, E. W., Some Aspects of the Legal Profession in the late fifteenth and early sixteenth Centuries (1955) Univ. London Ph.D. ThesisGoogle Scholar; Baker, J. H., History of the Order of Serjeants at Law (1968) Univ. London Ph.D. Thesis.Google Scholar Important recent articles are Ives, E. W., “The Reputation of the Common Lawyers in English Society 1450–1550” (1960) 7 University of Birmingham Historical Journal 130Google Scholar; Lucas, P., “Blackstone and the Reform of the Legal Profession” (1962) 77 English Historical Review 456CrossRefGoogle Scholar; Prest, W. R., “Learning Exercises at the Inns of Court 1590–1640” (1967) 9 Journal of the Society of Public Teachers of Law (New Series) 301Google Scholar; Ives, E. W., “The Common Lawyers in pre-Reformation England” (1968) 18 Transactions of the Royal Historical Society (5th Series) 145.CrossRefGoogle Scholar

² E. B. V. Christian, Short History of Solicitors (1896); Robson, R., The Attorney in Eighteenth Century England (1959)Google Scholar; Birks, M., Gentlemen of the Law (1960).Google Scholar

³ In 1280 the City of London made regulations for keeping separate the countors, attorneys and essoiners in the Mayor's Court: Liber Custumarum (Rolls Series), f. 205.

⁴ Maitland presumed that some ordinance similar to that in the City must have been made in the Common Bench in the 13th century: F. Pollock and F. W. Maitland, History of English Law (1898), i. 194. This is a reasonable inference from later history. As to the 1292 ordinance concerning attorneys (Rot.Parl. i. 84) see 85 L.Q.R. at p. 336.

⁵ G. Chaucer, Canterbury Tales (written c. 1390), prologue. The attorney, though a minister of the law, was not regarded as a “lawyer” even in the 17th century: see R. North, Autobiography (1882) ed.), p. 141.

⁶ J. Fortescue, De Laudibus Legum Angliae (written c. 1470), ed. by Chrimes (1949), Chaps. 49–51. Fortescue nowhere uses the words, but they were current by his time.

⁷ See Ives, op. cit., 7 Univ.Birm.Hist.Jo. at pp. 159–160.

⁸ e.g., 2 Inst. 564; R. v. Mayor of Bath (1671) Tremaine P.C. 542: “conciliarius in lege anglice ‘an utter barrester at law’”; T. Wood, An Institute of the Laws of England (1722 ed.), p. 448. On monumental brasses the commonest description of barristers before 1660 is “counsellor at law”: Stephenson, Mill, List of Monumental Brasses (1926), pp. 76, 120, 180, 222, 523, 535, 550, 565.Google Scholar

⁹ Articuli super Cartas 1300, 28 Edw. 1, c. 11, exempted countors and learned men who gave counsel “pur du son donant.” This exemption was omitted from the later statutes, but remained valid.

¹⁰ See Ives, op. cit., 7 Univ.Birm.Hist.Jo. at pp. 158–159. The giving of liveries to men of law was permitted by the 7 Hen. 4, c. 14, 8 Hen 6, c. 4 and 8 Edw. 4, c. 2.

¹¹ The word “fee” (feodum) is suggestive of a grant, and so “reward” seems the better term for a single payment although the two became synonymous. From the 15th century the King's serjeants were granted by patent their customary “vadia feoda vesturam et regarda,” and in slander actions a counsellor averred the receipt of annuities, fees and rewards (Co.Entr. 22) or something similar.

¹² For the introduction of briefs drawn by solicitors, vide infra, p. 222.

¹³ W. Harrison, A Description of England (1587), ii. Chap. 9; ed. by Furnivall (1877), i. 204: “Our lawiers did sit in Powles upon stooles against the pillers and walles to get clients.” In 1603 the Masters in Chancery argued their superiority to the serjeants because the latter “aunciently stood by certaine pillars in St. Paules church, to bee caried by anie client for a slender fee, whether soever the occasion should lead” (Brit.Mus.MS. Sloane 1710, f. 133). And see W. Dugdale, Origines Juridiciales (1666), p. 142a. New serjeants were each assigned a pillar here at their creation (Bodl.Lib.MS.Ashm. 1147, f. 26 (1521); Dugdale, op. cit., p. 124b), but Sir Roger Owen suggested this was a devotional observance later mistaken for a survival of the old tradition (Of the Common Law, Brit.Mus.MS.Harl. 1572, f. 493).

¹⁴ Dugdale, op. cit., p. 142a: “St. Paul's Church, where each lawyer and serjeant at his pillar heard his client's cause, and took notes thereof upon his knee; as they do in Guild Hall at this day” (1666). Cf. Harrison, loc. cit. (1587): “now some of them will not come from their chambers to the Guildhall in London under ten pounds.”

¹⁵ G. Chaucer, Canterbury Tales, prol.; Fortescue, op. cit., Chap. 51 (the litigants in the afternoon “se devertunt ad pervisam et alibi consulentes cum servientibus ad legem et aliis consiliariis suis”).

¹⁶ See J. Selden's edition of Fortescue, op. cit. (1672 ed.), p. 50; Manly, J., Canterbury Tales (1928), p. 518Google Scholar; Cohen, H., op. cit., p. 489Google Scholar; Frost, G. L., “Chaucer's Man of Law at the Parvis” (1929) 44 Modern Language Notes 496–501CrossRefGoogle Scholar; Chrimes, S. B., Sir John Fortescue (1949), pp. 129, 205.Google Scholar

¹⁷ Harrison, loc. cit. in note 13, supra. Thereafter clients began to go in the first place to solicitors, who would instruct counsel for them: infra.

¹⁸ R. Hutton, Diary, Univ.Lib.Camb.MS.Add. 6863, f. 60v (speech to Sir Robert Heath on being made a serjeant in 1631).

¹⁹ Of the Common Law, Brit.Mus.MS.Harl. 1572, f. 492.

²⁰ Cf. H.21 E.3, 7, pl. 20.

²¹ e.g., Serjeant Yaxley's retainer (1501): Plumpton Correspondence, Camden Society 1839, p. 152.

²² M.39 H.6, 21, 22, per Prisot C.J.; 1 Plowd. 32, per Hinde J.; Poutrel's Case, Cro.Eliz. 547. But where an abbot was sued on a retainer by his predecessor, the plaintiff had to aver that counsel was given to the use of the house: Bruin v. Abbot of Chester (1460) M.39 H.6, 21, pl. 31. Cf. H.9 E.4, 48, pl. 3, and f. 53, pl. 17.

²³ H.21 E.3, 7, pl. 20; M.41 E.3, 19, pl. 3; H.8 H.6, 23, pl. 9. Cf. T.10 E.3, 24, pl. 23. In Cantok v. De Wyche (1294) 42 Seld.Soc. 199, the grantee sought to justify his refusal to act though he was present in Westminster Hall at the time of the request. A physician, however, might be obliged to give personal attendance by virtue of a retainer “pro consilio”: M.41 E.3, 19, pl. 3.

²⁴ Oliver v. Emsonne (1514) Dyer 1, Plowd. 382. Cf. F. Bacon, Maximes of the Common Lawes (1630 ed.), reg. 1.

²⁵ Mingay v. Hammond (1618) Cro.Jac. 482, Popham 135. Lilly seemed to think something turned on the fact that it was “but a small annuity of 40s. per annum”: Practical Register (1719), pp. 76, 356.

²⁶ Mounson v. Dawson (1630) Brit.Mus.MS.Harg. 25, f. 31 at f. 33. Counsel relied on Mingay's Case as showing that “n'est I'office d'un counsellor… de transcribe ascun bill ou declaration, mes solement adviser…”

²⁷ Stile v. Prior of Hailes (1430) H.8 H.6, 23, pl. 9. Accord. T.32 E.3, Fitzh.Abr. Annuitie pl. 30.

²⁸ Bro.Abr. Annuitie pl. 18.

²⁹ Anon., Rolle Abr. i. 435, Condition (B.10).

³⁰ H.21 E.3, 7, pl. 20, per Sharshulle J.; T.32 E.3, Fitz.Abr. Annuitie pl. 30; H.8 H.6, 23, pl. 9.

³¹ He was a royal clerk and sometime keeper of the writs and rolls of the justices in eyre in Surrey: Cal.Patent Rolls 1272–1281, p. 329. A Roger of Leicester was a justice of the Bench at this period.

³² Suffolk Records Society Publications v. 86, no. 166 (1280–1294). The original is in Brit.Mus.MS.Harl. 230, f. 37.

³³ H.21 E.3, 7, pl. 20, semble; H.11 H.6, 18, pl. 10, per Babington C.J.

³⁴ 14 H.6, 18, pl. 58. Cf. Doige's Case (1442) T. 20 H.6, 34, pl. 4; 51 Seld.Soc. p. 97, per Stokes (probably John Stokes, King's Notary of the Chancery).

³⁵ The earliest precedent of the oath yet found is of late 15th century date: Brit.Mus.MS.Harl. 1859, f. 1.

³⁶ M.21 H.6, 4, pl. 6, note of Pole's Case (1425), infra note 52: “Un serjeant del ley est compelable per ley estre de counsel de ascun person.” Accord. Bro.Abr. Ley gager pl. 45.

³⁷ Brooke York Herald v. Mountague (1605) Brit.Mus.MS.Harl. 1679, f. 134: “Si sergeant al ley refuse d'estre de counsel que est demand, accion sur le case gist come si hostler refuse al harbage traveller, etc.” This passage is not reported by Croke.

³⁸ The angel was 6s. 8d. (the older demi-mark or noble) from the time of Edward IV to 1526. The sum of 3s. 4d. and its multiples are found as the fee of serjeants and counsel in medieval bills of costs: see Ives, op. cit., 7 Univ.Birm.Hist.Jo. at pp. 152–153. In 1603 it was said to be the “ancient fee” of a serjeant: Brit.Mus.MS.Add. 12497, f. 114v. It was also the usual fee for counting at the bar in fines and recoveries: Lincoln's Inn, MS. of Prothonotary Moyle, f. 40; Inner Temple, Petyt MS. 511/13, f. 102.

³⁹ Paston v. Genny (1471) 64 Seld.Soc. 190, per Catesby sjt.: “I'abit n'est forsque un puplishment et notice a le peple issint qu'ilz poient conustre queux sont ables de pleder.” The serjeants had worn a distinctive dress since at least the time of Richard II.

⁴⁰ W. Langland, The Vision of Piers the Plowman, ed. Kane (1960), p. 183.

⁴¹ See Numbers, xxii. 27–30. Puns of this nature abounded, e.g., S. Brant, Ship of Fools (1509), xvi: “Aungels worke wonders in Westmaster hall”; J. Willock, Legal Facetiae, p. 354: “My lawyer said the case was plaine for mee, The angell told him so hee tooke for fee”; R. Tisdale, The Lawyer's Philosophy (1622), sig. A7: “Nor that, whose golden fees makes the tongue flow with arguments of wit, and troll apace in Angell-rethorick,” and so on.

⁴² W. Harrison, Description of England (1587), ed. Furnivall (1877), i. 204. An Elizabethan serjeant might earn £400 in one term: ibidem.

⁴³ This may have been justified by the revaluation of the angel. Ives, op. cit., 7 Univ.Birm.Hist.Jo. at p. 153, gives examples of 7s. 6d. fees (the new angel) in 1540.

⁴⁴ A full study has not been undertaken here. Nisi prius costs in 1623 included “for your counsailes fee—at least 10s.”: T. Powell, The Attorney's Academy, p. 141. North said one guinea fees were the “gage of my practice”: Autobiography (1887 ed.), p. 168. A pamphleteer of 1707 complained of “golden counsellors that hardly in a year have a fee in anything but gold, that would throw a 10s fee at a man's head, should be offer it 'em”: Proposals for remedying the great Charge and Delay of Suits at Law and in Equity, pp. 17–18. Later it was thought unprofessional to take a fee in silver: story of Serjeant Davy (d. 1780) in Polson, Law and Lawyers, i. 124.

⁴⁵ Manwood v. Worland (Trin. 3 & 4 Phil. & Mar.) K.B. 27/1183, m. 190. Cf. Vavasour v. Puttenham, infra, note 59: loan for seven years.

⁴⁶ The words of 28 Edw. 1, c. 11.

⁴⁷ e.g., speeches to new serjeants: “Be as glad to tel the poure man the truth of the law for God's sake as the riche man for his monye” (16th century) Brit.Mus. MS.Harl. 160, f. 192v; “As you should have one tongue for the rich for your fee, as a reward for your long studies and labours, so should you also have another tongue as ready without reward to defend the poor and oppressed” (1594) Popham 45. It was not maintenance to give financial aid to paupers. There were also special statutes and rules of court governing proceedings in forma pauperis.

⁴⁸ Winfield, P., Chief Sources of English Legal History (1925), p. 158.Google Scholar The year books sometimes give the opinion of all the serjeants (e.g., P. 15 E.2, 464: “tout la serjaunte d'engleterre”). In one case a judge asks the serjeants for their opinion (M.2 H.6, 5, pl. 3).

⁴⁹ The Cardinal's Case (1523) Spelmat's Reports, Brit.Mus.MS.Harg. 388, f. 52.

⁵⁰ Life of the Author, prefaced to W. Noy, Compleat Lawyer (1665 ed.).

⁵¹ Cf. Hutton, op. cit., Univ.Lib.Camb.MS.Add. 6863, f.85 (1636): “Men must not thrust themselves into cases wherin they are not reteyned,” per Bramston C.J. Even in the 18th century this was considered a matter of pride rather than ethics, and it is said that Wedderburn solicited City causes when making his way: Powell, L. F., Boswells's Life of Johnson (1934) ed.), ii. 430.Google Scholar

⁵² Serjeant Pole's Case (1425) H.3 H.6, 33, pl. 26; 50 Seld.Soc., pref. p. xviii. See also P.3 H.6, 42, pl. 14, per Martin J.; M.21 H.6, 4, pl. 6, note.

⁵³ P.37 H.6, 8, pl. 18, per Prisot C.J.

⁵⁴ Tailour v. Jeretrude (1452) M.31 H.6, 9, pl. 1, per Moyle sjt.

⁵⁵ Intrationum Liber (1546), p. xxiii (b); R. Brownlow, Declarations and Pleadings in English (1652), p. 80; Latine Redivivus (1693), p. 172.

⁵⁶ Middle Temple Records (1904), i. 79, 136, 140Google Scholar (reader elect in 1563).

⁵⁷ A century later contingent fees were held illegal: infra, n. 39.

⁵⁸ M. T. Rec., i. 106; Banks' Dormant and Extinct Baronage (1808), ii. 614; The Complete Peerage (1959), xii. 795–797Google Scholar; Victoria Country History of Hampshire, iii. 367; Cal. State Papers Dom. (1547–1550), pp. 363, 364, 602. More of the Puttenham saga may be learned from another Chancery suit in which he and his solicitor accused each other of lewdness and misconduct: Hartilpoole v. Puttenham (c. 1567), petition to Sir Nicholas Bacon L.K., C.3/90/84.

⁵⁹ Vavasour v. Puttenham (c. 1558–1574), petition to Sir Nicholas Bacon L.K., C.3/185/74. The object was probably to avoid wager of law.

⁶⁰ See, for instance, Babham v. Hampden (c. 1545), petition to Sir Thomas Wriothesley L.C., C.1/1106/1. This was a suit to recover arrears of and to enforce an annuity pro consilio impenso et impendendo, which was originally granted to one John Cheyne for life. In 1531 the annuity had been assigned by parol to John Babham in consideration of marriage and “in the name of one yerely fee for the counsell aswell of the said John Cheyn as of your said supplyaunt.”

⁶¹ Fortescue, op. cit., Chap. 8: “aliis iuris peritis quos apprenticios vulgus denominat.”

⁶² 10 Rep., pref. p. xxxvii; E. Waterhouse, Fortescutus Illustratus (1663), p. 138; Dugdale. op. cit., p. 143. Noy in 1632 compared the Inns to the Universities and suggested that the humble title “apprentice to the law” was superior to the “specious and swelling titles” of masters and doctors, being given to readers after about 27 years' study: T. Gibbon, Commonplace Book, Brit.Mus.MS.Harl. 980, f. 153.

⁶³ Hence “inner” and “utter” barristers. See Report to King Henry VIII, printed in E. Waterhouse, Fortescutus Illustratus (1663), p. 544; J. D. Walker, Black Books of Lincoln's Inn, I, pref. p. x; Prest, W. R., “Learning Exercises in the Inns of Court 1590–1640” (1967) 9 J.S.P.T.L. (New Series) 301, 311.Google Scholar

⁶⁴ Bellot, H. H. L., “Some early Law Courts and the English Bar” (1922) 38 L.Q.R. 168Google Scholaret seq.

⁶⁵ The first known use is in 1466: Black Books, I, 41. Cf. ibid., p. 26 (1455): “duo de optimis barrer.” Benchers are mentioned in 1442: ibid., p. 11. The expression “Bench and Bar” is used in older year books, and the reference to barristers in the printed year book of 1489 (P.4 H.7, 7, pl. 4: “fuit argue per les barresters”) may originally have been to the “Bar” (same case, Brit.Mus. MS.Harg. 105, f. 129v: “fuit argue per le barr' …”). The full title “barrister at law” dates from at least the 16th century: e.g., “practiser and utter barryster at lawe” (Chabnor v. Dyke (1589) Req.Proc. 2/186/23), and see note 86, infra.

⁶⁶ T. Gibbon, Commonplace Book, Brit.Mus.MS.Harl. 980, f. 153, per Noy Att.-Gen. at Atkyns' reading in Lincoln's Inn.

⁶⁷ Rudston's Case (1549) Dalison's Reports, Brit.Mus.MS.Harg. 4, f. 102; Moore K.B. 6, pl. 20 (different report). A century later a petition by two soldiers to plead at the bar in the Upper Bench was rejected “as against law being maintenance for such to plead”: J. Clayton, Reports at Yorke (1651), ep.ded. Maintenance was abolished by the Criminal Law Act 1967, s. 13, Sched. IV.

⁶⁸ e.g., G. and A. v. T. (1520) Brit.Mus.MS.Harl. 1715. f. 144v.

⁶⁹ W. H. v. W. C. (1457) W. Rastell, A Collection of Entrees (1596 ed.), p. 431v, Maintenance pl. 17. It was not essential for a general attorney to justify as one learned in the law: H.34 H.6, 26, pl. 3, per Moile J., semble.

⁷⁰ Rastell, op. cit., p. 432, Maintenance pl. 18. The date is not given, though it is probably later than c. 1500. Cf. ibid., p. 357, Forger de fails pl. 6: averment of retainer as “unus sociorum de Greis Inne.”

⁷¹ e.g., five inscriptions to socii de Grays Inn (Greyfriars, 1469–1516): J. Stow, Notebook, Brit.Mus.Ms.Harl. 544, ff. 48v. 54, 58, 60v, 63v. “Jacobus Bayle medio templo sociatus” (Temple Church, 1470): J. Weever, Funerall Monuments (1767 ed.), p. 225. “Ricardus Wye socius commitivi Interioris Templi” (Temple Church, 1519): Dugdale, op. cit., p. 173. All these are now destroyed. Extant inscriptions on brasses rarely mention Inns before the 17th century. Unique in the 15th century is William Crofton “legis peritus ac collega de Greysyn” (Trottecliffe, Kent, 1483). The first to mention a degree seems to be the brass of Heigham C.B., reader of Lincoln's Inn (Barrow, Suffolk, 1570).

⁷² See Baker, J. H., “The Status of Barristers” (1969) 85 L.Q.R. 334 at pp. 336–3371.Google Scholar (A documented modern parallel is the establishment of the Inn of Court of Northern Ireland in 1921 by the common act and assent of the Bench and Bar there.) It is evident that the Inns “of Court” were so named after the “men of court” and not vice versa; for this expression see Cal. Patent Rolls 1436–1441, p. 195, and 46 L.Q.R. 150n.

⁷³ J. v. W. P. (1479) Rastell, op. cit., p. 108, Plee al Briefe per Misnomer pl. 7: “et dicit quod ipse tempore impetracionis brevis fuit de hospitio de Clements Inne … quod quidem hospitium est … quoddam hospitium hominum curie legis temporalis necnon hominum consiliariorum eiusdem legis.” Cf. note 70, supra: Lincoln's Inn.

⁷⁴ Prince's Case, cited in W. Hudson, Treatise of the Star Chamber (c. 1635) Collectanea Juridica ii. 93. Cf. Boughton's Case, cit. Popham 207, discussed more fully in Bodl.Lib.Ms. Rawl. c. 720, f. 28v.

⁷⁵ Cary's Case (1627) Popham 207; Gibs v. Price (1650) Style 231. The action lay for an attorney, but the form of pleading was different.

⁷⁶ Elyot v. Tofte (Hil. 4 Hen. VIII) K.B. 27/1006, m. 62. See Milsom, S. F. C., Historical Foundations of the Common Law (1969), pp. 339, 424.Google Scholar

⁷⁷ Manwood v. Worland (1557) K.B. 27/1183, m. 190 (Manwood was described as “unus scociorum interioris Templi,” but only by way of addition); Snagg v. Gray (1571) K.B. 27/1238, m. 114 (Co.Entr. 22, pl. 19; cf. Dalis. 97, Rolle Abr. i. 55); Stanhope v. Blythe (1586) Co.Entr. 21, pl. 8. In Broughlon's Case, supra, this form was held bad because the jurors could not determine a man's learning.

⁷⁸ “Ut socius venerabilis consorcii generosorum hospicii interioris Templi.”

⁷⁹ “Ad locum et gradum fore de exteriore barra vocatus ‘an utter barrester’ in hospicio predicto … evocatus electus et assignatus fuit.”

⁸⁰ “Evocatus et electus fuit ad dignitatem locum et preheminens fore unum de banco hospicii predicti vocatus ‘a bencher in court.’”

⁸¹ “Evocatus electus et assignatus fuit fore lector legis et statutibus regni Anglie anglice ‘a reader in courte’ in hospicio predicto.”

⁸² Hele v. Gyddy (Trin. 33 Eliz. I) K.B. 27/1318, m. 682 (reported Moore K.B. 695, 2 Anders. 40, 269). The record was not printed, but a similar declaration by an utter barrister of Gray's Inn in Clifford v. Astrye (1642) was printed in J. Hansard, Book of Entries (1685), p. 61.

⁸³ In the Liber Placitandi (1674), p. 53, pl. 76, is a late example of the “homo eruditus in legibus huius regni.” The even more anachronistic “legis apprenticius” is found in an indictment for ambidextry printed by J. Tremaine, Placita Coronae (1723), p. 261.

⁸⁴ See the following cases subsequent to Hele's Case, the records of which have not been examined: Palmer v. Boyer (1594) Cro.Eliz. 342, Golds. 126, Owen 17; Rich v. Holt (1609) Cro.Jac. 267; Bestley v. Dixon (1610) 13 Rep. 71, Noy 98, Rolle Abr. i. 55, pl. 22; Bankes v. Allen (1615) Rolle Abr. i. 54, pl. 14; Powell's Case (1618) Popham 139; Cary's Case (1626) Popham 207; Peare v. Jones (1634) Cro.Car. 382, Rolle Abr. i. 55, pl. 16; Francis Cory's Case (n.d.) cited in Cory's Reports, Brit.Mus.Ms.Harg. 23, f. 117; Gibs v. Price (1650) Style 231.

⁸⁵ Franklyn v. Boteler (Mich. 10 Car. I) K.B. 27/1611, m. 463 (reported in Brit.Mus.MS.Add. 35968, f. 502, but not in print): “Ad gradum et officium causidici anglice ‘an utterbarrister’ in eadem societate debito tnodo electus et vocatus fuit et licentiatus iuris in eadem hospicio … factus et allocatus fuit.” He was later made “unus gubernatorum anglice ‘ bencher’ et lector legum anglice ‘a reader’ hospicii predicti per consensum omnium aliorum gubernatorum anglice ‘benchers’ eiusdem hospicii.”

⁸⁶ e.g., The Clerk's Manual (1678), p. 166: “in legibus communibus Angliae existens inde graduatus videlicet ‘a barrester at law’.”

⁸⁷ 21 Jac. 1, c. 23, s. 6; Clapham's Case (1627) Cro.Car. 97. In mandamus proceedings to restore to the recordership of Bath in 1671, it was returned that the Borough were by charter to have “unum probum hominum discretum in legibus Anglie eruditum” as recorder, and that the applicant “non fuit neque adhuc est conciliarius in lege anglice ‘an utter barrester at law’ neque aliquo modo eruditus in legibus terre huius Regni Anglie”: Ex parte Hawley, J. Tremaine, Placita Coronae (1723), pp. 541–543.

⁸⁸ e.g., Anon. (1515) Spelman's Reports, Brit.Mus.MS.Harg. 388, f. 25: held maintenance where defendant went t o Serjeant Broke at request of a stranger and asked him to be of counsel for the stranger. Cited and approved by Coke Att.-Gen. in Worthy v. Savill, Brit.Mus.MS.Add. 25212, f. 15. Cf. M.21 H.6, 15, pl. 30, per Markham J.; H.34 H.6, 26, pl. 3, per Prisot C.J.

⁸⁹ See Hull v. Daucomb (1425) T.3 H.6, 53, pl. 24; M.ll H.6, 10, pl. 24; M.19 H.6, 30, pl. 56; M.39 H.6, 5, pl. 8; J. H. v. T. W. (1500) Rastell, op. cit., p. 428v, Maintenance pl. 8. Conversely, a master might maintain his servant: Pomeroy v. Abbot of Buckfast (1442) M.21 H.6, 15, pl. 30; Clement Tailour's Case (1450) T.28 H.6, 12, pl. 28; Robert Horn's Case (1456) H.34 H.6, 25, pl. 3; M.19 E.4, 3, pl. 9; M.21 H.7, 40, pl. 62; Rastell, loc. cit., pl. 9.

⁹⁰ C.3/185/74, ut supra, note 59. In the time of Henry VIII a Gray's Inn man might act as “a generall attorney or solissitour to the commone law”: Ives, op. cit. (1968) T.R.H.S. at p. 152. An attorney could act as a solicitor, and might recover his fees on a retainer “ad negotia solicitandum”: Rastell, op. cit., p. 202v, Dette sur reteiner pl. 9.

⁹¹ George Puttenham's solicitor had the ” charge of all his doinges aswell of receiptes and paymentes in London as all his causes in the lawe and other secrete and weightie affaires”: note 58, supra. And see M. Birks, Gentlemen of the Law (1960), Chap. 5.

⁹² Onely v. Earl of Kent (1577) Dyer 355. Cf. P.5 H.7, 20, pl. 1, per Keble sjt. And see Worthington v. Garstone (1580) Hob. 67.

⁹³ Heydon v. Good (1600) Brit.Mus.MS.Add. 25212, f. 7v. See also Jones, W. J., The Elizabethan Court of Chancery (1967), pp. 317–320.Google Scholar In 1601 Anderson C.J. said solicitors were illegal by statute: Anon., Bodl.Lib.MS. Rawl. c. 720, f. 65v.

⁹⁴ Note (1614) 2 Bulst. 230 (no italics in original). The office of King's Solicitor-General was instituted in 1461.

⁹⁵ Treatise of the Star Chamber (c. 1635) Collectanea Juridica ii. 94.

⁹⁶ Rolls v. Germine (1596) Cro.Eliz. 459, Moore K.B. 366; Osbourn v. Eden (1600) Cro.Eliz. 760; Leach v. Penton (1614) Viner Abr. Maintenance (E.6); Bradford v. Woodhouse (1619) Cro.Jac. 520; Gage v. Johnson (1622) Winch 53; Thursby v. Warren (1629) Cro.Car. 159, W. Jones 208; Kelloway v. Mere (1629) Brit.Mus.MS.Harg. 25, f. 54v, MS.Add. 25222, f. 188; Sands v. Trevilian (1630) Cro.Car. 107, 193; Herne v. Roth (1634) Brit.Mus.MS.Add. 35967, f. 22v.

⁹⁷ Addendum (c. 1574–1582) to Smith, T., Be Republica Anglorum (1906 ed.), P. 153.Google Scholar Solicitors were not usually described as “learned in the law.”

⁹⁸ T. M., The Sollicilor (1662 ed.), pp. 23, 102. See also Holdsworth, W. S., History of English Law (1924), vi. 449Google Scholaret seq.

⁹⁹ e.g., speech to new Serjeants (1577): “The first [part of your service is] to councell in matters of assurance” (Chancery Decrees and Orders 1577 “A,” C. 33/55, f. 4). Other speeches similiter. As to conveyancing, see Holdsworth, op. cit., pp. 447–448; Birks, M., Gentlemen of the Law (1960)Google Scholar, Chap. 4.

¹ See Ives, op. cit., 7 Univ.Birm.Hist.Jo. at pp. 146–147; (1968) T.R.H.S. at pp. 146–147.

² G. W. Sanders, Orders of the High Court of Chancery (1845), i. 1036. W. R. Prest has considered these changes in relation to the supposed decline of the learning exercises in the Inns: 9 J.S.P.T.L. 301.

³ Chancery Decrees and Orders 1577 “A,” C 33/55, f. 4. Cf. Sanders, op. cit., p. 1034: “it is all one not to come as either to come unprepared or depart before it be ended” (speech of 1580).

⁴ Hutton, op. cit., Univ.Lib.Camb.MS.Add. 6863, f. 8v (speech of 1623).

⁵ A proposal was made, though nothing came of it, to “sort” the bars of each court and restrict them to named barristers (Brit.Mus.MS.Lansd. 106, f. 103v). In theory the serjeants were expected to put their Common Pleas business first, but they practised in the other courts as well.

⁶ T. Powell, The Attorney's Academy (1623), pp. 114–116. See also Barret's Case (1619) Hobart 249.

⁷ E. Leach, Down-fall of the Unjust Lawyers (1652), p. (5).

⁸ R. North, Autobiography (1882 ed.), p. 126. Cf. Discourse on the Study of Laws (1824 ed.), p. 39: “the gown has derelicted the practice of forms, so that all is now left to [the attornies].” The gown, of course, derived some material advantage from the greater number of jeofails to be exploited.

⁹ e.g., Sanders, op. cit., i. 1033–1036; Chancery Decrees and Orders, C. 33/55, ff. 4, 86. A barrister may even today give direct advice sometimes, as to friends or paupers, but not as a rule to “clients.”

¹⁰ Hutton, op. cit., Univ.Lib.Camb.MS.Add. 6863, f. 8v.

¹¹ Brit.Mus.MS.Lansd. 211, f. 118 (no italics in original).

¹² There are instances at a later date (e.g., Bawdes v. Amhurst (1715) Prec.Cha. 402), but the passage cited in note 98, supra, shows that it was usual for solicitors to “breviate causes” by 1662.

¹³ R. North, Discourse on the Study of Laws (1824 ed.), p. 39. Cf. Autobiography (1887) ed.), p. 141: “even the making of breviats at the assizes was done by the lawyers.”

¹⁴ Discourse, p. 39.

¹⁵ Op. cit., p. 141. It is strange that he later refers to this sort of practice as “smut” and says he always rejected requests to undertake a whole cause: ibid., pp. 168–169. For later instances, see Doe d. Bennett v. Hales (1850) 15 Q.B.D. 171.

¹⁶ This is Coke's distinction: 2 Inst. 514.

¹⁷ College of Physicians v. Rose (1703) 1 Bro.P.C. 78. See also Hamilton, B., “The Medical Profession in the Eighteenth Century” (1951) 4 Economic History Review (2nd Series) 141CrossRefGoogle Scholaret seq.; Wall, C., History of the Worshipful Company of Apothecaries of London (1963)Google Scholar, Chaps. 4, 6. The surgeons were concerned only with outward cures, but the apothecaries (originally druggists) acquired the right to prescribe medicine by usage. The physicians argued that this encroachment would deprive the gentry of “one of the professions by which their younger sons might honourably subsist”: Wall, op. cit., p. 399.

¹⁸ Infra, note 21.

¹⁹ In this year six serjeants were called to that degree (see Cal. Patent Rolls 1396–1399, p. 28), one of whom had been been a member of Clifford's Inn. In the window of the old Hall was the inscription: “Will. Screen electus et vocatus ad statum et gradum servientis ad legem extra hospitium istud et non aliunde …” (T. Gibbon, Commonplace Book (c. 1635) Brit.Mus.MS.Harl. 980, f. 300). The inscription was destroyed before 1851: E. Foss, The Judges of England (1851), v. 141. Skrene is the latest known example of such a call.

²⁰ See Bellot, H. H. L., “The Exclusion of Attorneys from the Inns of Court” (1910) 26 L.Q.R. 137Google Scholaret seq.

²¹ Judge's Orders 1614: Dugdale, op. cit., p. 317. Cf. ibid., p. 320 (Orders of 1630), in which “counsellor” becomes “utter-barristers, readers in court and apprentices at law.” Repeated in 1661: ibid., p. 322.

²² See the valuable original studies of Lucas, P., “Blackstone and the Reform of the Legal Profession” (1962) 77 Eng.Hist.Rev. 456, 467Google Scholaret seq.; and Prest, W.R., “Legal Education of the Gentry 1560–1640” (1967) 38 Past and Present 20–39.CrossRefGoogle Scholar

²³ e.g., Anon., The Institution of a Gentleman (1555), sig. D.iiii, which says lawyers of no great fortune “may resonablye take monye for their counsel, travail and paines, having alwais respect to the sayinge of Plato, that is Homines hominis causa esse generatos …” L. Humphrey, The Nobles or Of Nobility (1563), sig. Qvv, looks back to classical times when lawyers were always gentlemen. J. Ferne, Blazon of Gentrie (1586), p. 93: “One lawyer of gentle jineage is more frequented with the client of Forma pauperis, more vigilant to his client's cause, more easie in his fees … than tenne advocates of base and ungentle stocke.” Speech of Hobart C.J. to new serjeants (1623): “Lett not your ends be to inrich yourselves and to wast and consume the clyent, for you make the law to serve you and you doe not serve the law” (Hutton, op. cit., Univ.Lib.Camb.MS.Add. 6863, f. 4v).

²⁴ Hutton, op. cit., Univ.Lib.Camb.MS.Add. 6863, f. 83v. Cf. ibid., f. 85, per Bramston C.J.; Brit.Mus.MS.Lansd. 211, f. 118 (1640), per Littleton L.K.: “I hope yow all abhorr in shareing with sollicitors.”

²⁵ D.50, 13, 1, 5: “est quidem res sanctissima civilis sapientia, sed quae pretio nummario non sit aestimanda nec dehonestanda dum in iudicio honor petitur qui ingressu sacramenti offerri debuit, quaedam enim tametsi honeste accipiantur, inhoneste tamen petuntur.” (Quoted in Brit.Mus.MS.Harg. 4, f. 21, infra.) Cf. Davies (next note): “That moral rule Multa honeste accipi possunt quae honeste peti non possunt.” The Lex Cincia (c. 204 b.c.) forbade advocates to accept money for their services, and at no time could advocates or professors of law hire their services by locatio conductio. In later times advocates (but not professors) could recover fees by a cognitio extraordinaria (D.50, 13, 1, 9–10). See also Thomas, J. A. C., “Locatio and Operae” (1961)Google ScholarBulletino dell'Istituto di diritto romano, lxiv. 231 at pp. 245–247.

²⁶ J. Davies, Le Primer Report des Cases en les Courts del Roy en Ireland (Dublin, 1615), preface; A. B. Grosart ed. Works of Sir John Davies (1876), ii. 280–281. See also Roxburgh, R., “Rondel v. Worsley, etc.” (1968) 84 L.Q.R. 178, 513.Google Scholar

²⁷ Lewes v. Lany (1607) Hawarde, Reportes del cases in Camera Stellata (1894 ed.), p. 342.

²⁸ W. Sheppard, Grand Abridgment (1675), i. 536: “It is said also that the counsellor shall have debt for his fees. 3 H.6, 33. But it seems the law is otherwise for a barrester for his counsel. Trin. 8 Jac. B.R.” The second case has not yet been traced.

²⁹ Penros' Case (1412) H.13 H.4, 17, pl. 12, per Hankford C.J. The principle was still acceptable three centuries later (see Viner Abr. Maintenance (M)7), though Coke said “Hanckford imperfectly citeth it” (2 Inst. 564). Penros was a serjeant at law about the time of Richard II.

³⁰ W. Harrison, Description of England (1877 ed.), i. 204–205. A proposal to remedy this in 1653 came to nothing: F. A. Inderwick, The Interregnum (1891), p. 209.

³¹ Cooke, G., Rules and Orders of the Court of Common PleasGoogle Scholar, Hilary Term 14 Jac. 1, No. VI. Rule VII provided for the return of excessive fees.

³² Cf. Turner v. Philipps (1791) Peake 166, accord. Likewise in the civil law: D.19, 2, 38, 1.

³³ Supra, note 52.

³⁴ W. Sheppard, Faithful Councellor or the Marrow of the Law (1651), p. 258: infra, note 37, per Bridgman C. J. Chester. In his Grand Abridgment (1675), i. 536 is the remarkable muddled passage: “It is said, a serjeant at law shall not have debt for his fees. But the law is otherwise for a serjeant at law.”

³⁵ e.g., W. Glisson and A. Gulston, A Survey of the Law (1659), pp. 165, 182. In attempting to clarify the 1659 text, Style made it even more confused: “Serjeant at law shall not have debt for his fees and is not bound to be retained without. Q. for he is [sic] bound to be of counsel till he receive his fee.” (The Common Law Epitomised (1679 ed.), p. 219.) Style also questioned whether a counsellor could recover his fees, “for a counsellor's fee is not certain, and is rather honorarium than mercenarium”: ibid., p. 197.

³⁶ Marsh v. Rainsford (1588) 2 Leon. 111, pl. 146, per Anderson C.J.; Anon. (1629) Brit.Mus.MS.Add. 35329, f. 23, per Jones J.: “Si homme promise a J.S. (esteant home erudite en le ley) 20 li. pur le bone counsell que il avoit a luy done (pro consilio impenso) que l'accion sur ceo promise gist bien.”

³⁷ Marrow, p. 258: “So was the opinion of Mr. Justice Bridgman. Et Curia in le Marches de Wales 7 Car.”

³⁸ Grand Abridgment, i. 536: “By Justice Bridgman. 7 Car. in Curia de Marches of Wales.” Sheppard cited a number of west country cases in the Marrow and the Abridgment, which are quite possibly of his own reporting or recollection. He was called in 1629 and, like Bridgman, came from Gloucestershire.

³⁹ A contract for a contingent fee was held illegal in Penrice v. Parker (1673) Rep.t.Finch 75.

⁴⁰ Hutton, op. cit., Univ.Lib.Camb.MS.Add. 6863, ff. 84v–85 (1637).

⁴¹ W. Style, Regestum Practicale or Practical Register (1657), p. 104: “An action of debt doth lie for a councellor or attorney for their fees against the party that retained them. Mich. 22 Car.B.R. Q. whether it lie for a councellor for his fee is honorarium quiddam and not mercenarium, a gratuity rather than wages or a salary. By Rolle Chief Justice.” Same case, ibid., p. 152; Sheppard, Grand Abridgment, i. 527; J. Lilly, Practical Register (1719), i. 401. The case may well be Evely v. Livermore (Mich.22 Car.B.R.) Aleyn 4.

⁴² Brit.Mus.MS.Harg. 491, ff. 1 et seq. At f. 23v: “those persons and places that beare a parte in this exercise, the Innes of Chancery where yourselfe and some of these gentlemen have been and other of them in due time may bee worthy readers.”

⁴³ See Evely v. Livermore (1646) Aleyn 4, Twisden's Reports, Brit.Mus.MS.Add. 10619, f. 77v; Brickwood v. Fanshaw (1690) Carth. 147, 1 Salk. 86, 1 Show.K.B. 96.

⁴⁴ At f. 3 the Judges' Orders of 14 & 15 Car. 2 are cited, apparently as an addition to the first draft. The latest textbook cited is Wingate's Maxims (1658).

⁴⁵ Op. cit., f. 21: “Le difference inter le councell et le atturney al comon ley estoit sur mesme terms come inter le advocat et le proctor al Civil Ley … Le office de atturney est meane et mercenaria et certa et ex contractu tiel que le ley don luy action come al servant pur service chescun term. Mes le councell salaria ex nullo contractu sed ex clientulorum liberalitate tanquam honoraria (come nous appellons presents) advocatis dantur. Et per ceo Ulpian …” He then cites D.50, 13, 1, 5, ut supra, note 25.

⁴⁶ Ibid., f. 21: “Et le common disant est frument prender chival vender counsell render deniers in poign.” (Also quoted at f. 11v.)

⁴⁷ Ibid., f. 21: “Et ieo ay oy que councell ayant evidence peruse pur doner councell sur eux poit detein eux tanques le party ad don luy son fee.” Accord. Style's Practical Register (4th ed), p. 24. This is still not established, but it seems on principle that a lien could not be exercised over papers not actually drafted or worked on by the counsel: Steadman v. Hockley (1846) 15 M. & W. 553.

⁴⁸ Op. cit., f. 21. For the later history of the doctrine, see Rondel v. Worsley [1967] 1 Q.B. 443Google Scholar; [1967] 3 All E.R. 993 and Roxburgh, R., “Rondel v. Worsley: The Historical Background” (1968) 84 L.Q.R. 178Google Scholar; “Rondel v. Worsley: Immunity of the Bar,” ibid. p. 513. Sir Ronald Roxburgh is quite correct to say that the rule was not established when Blackstone wrote: ibid. p. 181. The older cases where counsel was liable in an action on the case were cases of ambidextry: see cases collected by Kiralfy, A. K. R., The Action on the Case (1951), p. 219Google Scholar, and Syms v. Newbury (1629) Brit.Mus.MS.Add. 35329, f. 23v; Rastell, op. cit., p. 2, Action sur le case, etc., pl. 2, 3. The dictum of Popham C.J. in Brooke v. Mountague (1605) Cro.Jac. 90 was based on a wide interpretation of Paston J. in 14 H.6, 18, pl. 58 (see the report in Brit.Mus.MS.Harl. 1679, f. 135), and applied only to a refusal to act.

⁴⁹ 1 Cha.Rep. 38.

⁵⁰ See 13 C.B. (n.s.) 706–707. The suit was brought against the solicitor, not the lay client, because it was alleged that the solicitor was to account with the counsel at the end of each term.

⁵¹ Dean's Case (1714) Viner Abr. Counsellor (A) 22.

⁵² Thornhill v. Evans (1742) 2 Atk. 330, 332. Cf. Stupholm v. Hart (1680) Rep.t.Finch 477; 79 Seld.Soc. 618 (reasonable fee allowed to counsellor's executors).

⁵³ W. Blackstone, Commentaries on the Laws of England (1765), iii. 28.

⁵⁴ e.g., J. Hern, The Pleader (1657), p. 19; R. Brownlow, Declarations and Pleadings in English (1652), p. 112; Latine Redivivus (1693), p. 190; J. Mallory, Modern Entries (1735), ii. 404.

⁵⁵ J. Lilly, Practical Register (1719 ed.), i. 401; (1745 ed.), i. 547. He copied Style, ut supra, note 41, and added: “but if it be upon a special retainer, I conceive an action will without all doubt lie for a counsellor.”

⁵⁶ T. Wood, An Institute of the Laws of England (1722 ed.), p. 449: “Certainly, if it is upon a special retainer, the action will lie.” The passage appears to be based on Lilly.

⁵⁷ G. Jacob, A New Law Dictionary (1729), title “Barraster.” This is based on Wood.

⁵⁸ J. Mallory, Modern Entries (1735), ii. 269: “An Attorney shall have an Action of Debt for his Fees … But Quaere of a Counsel. 3 H.6.3. pl. 26. 21 H.6.4. pl. 6. unless the Contract was made certain by a Promise to pay so much pro Consilio Impendendo, 37 Hen. 8.”

⁵⁹ Kennedy v. Broun (1863) 13 C.B.(n.s.) 677. This result was not reached in the case of physicians: Veitch v. Russell (1842) 3 Q.B. 928. Physicians were formerly presumed to attend on an honorary basis, like barristers: Chorley v. Bolcot (1791) 4 T.R. 317. This presumption became obsolete as a result of legislation: Gibbon v. Budd (1863) 2 H. & C. 92. But fellows of the Royal College of Physicians are prevented by a by-law from suing for fees.

⁶⁰ See Annual Statement of the Bar Council (1951), p. 27.Google Scholar

⁶¹ By the 18th century attorneys claimed to be gentlemen by office, but by then barristers claimed to be esquires, armigeri, which was a degree higher: Messor v. Molyneux (1741) cit. 1 Wils. 245.

⁶² S. T. Coleridge, Table Talk (1836 ed.), p. 189 (January 2, 1833).