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The “Lower Branches” of the Legal Profession: A London Society of Attorneys and Solicitors of the 1730s and its “Moots”1

Published online by Cambridge University Press:  16 January 2009

Henry Horwitz  and
Lloyd Bonfield
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Extract

The history in the eighteenth century of attorneys and solicitors—those who “practiced the forms or ‘mechanics’ of the law”—was first investigated in depth in Robert Robson's monograph of 1959. More recently, and following upon Geoffrey Holmes's suggestive survey of the lawyers in Augustan England, articles by M. Miles and A. Aylett have enlarged our knowledge of the social origins and geographical distribution of attorneys over the century as a whole and offered detailed analyses of attorneys' business in the West Riding and Cheshire during the latter half of the century.

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Articles
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The Cambridge Law Journal , Volume 49 , Issue 3 , November 1990 , pp. 461 - 490
Copyright
Copyright © Cambridge Law Journal and Contributors 1990

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References

2 The Attorney in Eighteenth-Century England (Cambridge Studies in English Legal History, Cambridge 1959).

3 Holmes, Geoffrey, Augustan England (London, 1982)Google Scholar; Miles, Michael, “The Money Market in the Early Industrial Revolution: the Evidence from West Riding Attorneys c.1750–1800” (1981) 23 Business History, 127–146CrossRefGoogle Scholar; idem, “Eminent Practitioners: The New Visage of Country Attorneys c. 1750–1800” in G. R. Rubin and David Sugarman (eds.), Law, Economy and Society, 1750–1914: Essays in the History of the English Law (Abingdon, 1984), pp. 470–503; idem, “‘A haven for the privileged’: recruitment into the profession of attorney in England 1709–1792” (1986) 11 Social History, 197–210; Aylett, P., “Attorneys and their clients in eighteenth-century Cheshire: 1740–1785” (1986–1987) 69 Bulletin of the John Rylands Library, 326–58CrossRefGoogle Scholar; idem, “A Profession in the Marketplace: The Distribution of Attorneys in England and Wales 1730–1800” (1987) 5 Law and History Review, 1–30.

4 Belcher, V., “A London Attorney of the Eighteenth Century: Robert Andrews” (1986) 12 London Journal 40–50CrossRefGoogle Scholar.

5 The usual dating of the first known meeting of the Society is 1739. But the secretary was still using, as the editor (Edwin Freshfield) of the printed minutes indicates, old style (Julian) dating—i.e., the first recorded minute of “13 Feb. 1739” should be read as 13 Feb. 1740). See The Records of the Society of Gentlemen Practisers in the Courts of Law and Equity (1897), p. 1Google Scholar (compare date format at pp. 2 (and the editor's note) and ff.). Freshfield's edition has been checked against the original (preserved in the Law Society's Library). Apart from some minor errors in transcription, it should be noted that in its early years “the Society” simply styled itself as “the several practisers in the Courts of Law and Equity”.

6 Holmes, Augustan England, pp. 153–155.

7 Brooks, C. W., “Interpersonal conflict and social tension: civil litigation in England 1640–1830” in Beier, A. L. et al. (eds.), The First Modern Society (Cambridge, 1989), pp. 377–379Google Scholar. Our thanks to the author tor making available this important study in draft.

8 Records of the Society, pp. 1, 9, 11, 13–14, 16.

9 Holmes, Augustan England, p. 120.

10 Robson, op.cit. supra note 2, p. 59 and passim. See also Miles, “Eminent Practitioners”, esp. pp. 473–474.

11 Belcher, “A London Attorney”, p. 41.

12 Brooks, “Interpersonal Conflict”, pp. 357–399, gives a thorough account of trends in litigation and their causes in the period. For the petition of 1707, see Holmes, Augustan England, p. 155.

13 We gratefully acknowledge the Beinecke Library's permission to cite the manuscript and to reprint portions of it in Appendix II. Its existence is noted in Readings and Moots in the Inns of Court in the Fifteenth Century (supra, note 1) at p. lxxvi, note 409. The manuscript was acquired for the Osborn collection from Sotheby's in 1972, but efforts to establish the provenance of the document beyond the dealer from whom Sotheby's purchased it have not yielded any results.

14 The Spectator no. 372, Wednesday, May 7, 1712, reprinted in The Spectator, ed. Donald F. Bond (Oxford, 1965), III, p. 402. For informal debating and study societies formed by aspirants to the Bar in the early eighteenth century, see Readings and Moots at the Inns of Court in the Fifteenth Century (supra, note 1), p. lxxvi; Lemmings, David, Gentlemen and Barristers The Inns of Court and The English Bar 1680–1730 (Oxford, 1990), pp. 107–108CrossRefGoogle Scholar.

15 ”Items” 20–25 are reproduced in Appendix II, together with a selection of the supplementary orders.

16 See Appendix I: definite, numbers 7, 9, 16, 23; possible, 17, 20, 22.

17 Whether Lucas's registration in King's Bench preceded his registration in Chancery is unclear from the record, though given the terms of the 1729 statute it seems very likely his registration in King's Bench came first. See Appendix I numbers 2 and 6 for the two unidentifiable members and the difficulties in disentangling the five or more John Browns and the two John Bakers.

18 Appendix I: numbers 4, 7, 8, 9, 10, 13, 14, 15, 19, 20, 21, 22, 23. However, none of the 13 took advantage of the Act's provision allowing attorneys to register without payment of stamp tax if they did so in the brief interval between the passage of the Act (14 May) and 1 June 1729.

19 Appendix I: numbers 5, 8, 13, 18, 22.

20 Appendix I: numbers 4, 5, 7, 8, 13, 14, 16, 19, 24.

21 Appendix I: 8, 14, 15, 16, 23. For the north-western gentry clients of the London-based but Cheshire-bora Nicholas Kent (no. 14), see note 82 below.

22 Appendix I: 1, 10, 13, 22. Moreover, two others (numbers 5 and 21) of the 22 had strong Staffordshire links.

23 Appendix I: number 24 (by residence of mother).

24 Both the King's Bench indexes and those of Common Pleas have been searched for the mid-1730s, the mid-1740s, the mid-1750s, the mid-1760s, and the mid-1770s: P[ublic] R[ecord] O[ffice]. Ind. 1/9632 and ff., CP 36/4 and ff.. None of these men figures in the comparable indexes for Chancery litigation: PRO, Ind. 1/7425, 7464, 7515, 20315 and ff. For the ten, see Appendix I: numbers 4, 5, 7, 8, 9, 13, 14, 17, 19, 22.

25 Appendix I: numbers 1, 12, 15, 21.

26 Appendix I: numbers 16, 20, 23, 24.

27 Appendix III: 46 and 51.

28 The largest number of members recorded in attendance at a given meeting was 14; the average was just under nine, with a tendency for attendance to decline in 1735 as compared to 1734.

29 See Appendix III.

30 Appendix III: 4 and 6.

31 Appendix III: 1.

32 Appendix III: 40.

33 Appendix in: 52.

34 Appendix III: 53.

35 For cases containing such citations, see Appendix III.

36 Appendix in: 26, (derived from Booth v. Booth [1704] 1 Salk. 322Google Scholar); 36 (from Acton v. Eels [1697 2 Salk. 662Google Scholar); 42 (from Kenrig v. Eggleston [1648] Aleyn 92Google Scholar; and 49 (from Lord Rockingham et al. v. Oxenden et al. [1711 2 Salk 579Google Scholar).

37 Appendix III: 42.

38 [1648] Aleyn 92.

39 Appendix III, 16, is derived from Robinson v. Bell [1690] 2 Vern. 147 at 148Google Scholar.

40 Appendix III, 17.

41 “Hill. 6th Geo 2d”.

42 Appendix III: 34 from Co. Lin., 207; 50 from Co. Litt., 212.

43 Appendix III: 50.

44 Appendix III: 1.

45 See Appendix III.

46 Contemporary manuals for the “mechanics” of the law abound. See, for example, Jacob, Giles, The Compleat Attorney's Practice in English, in the courts of King's Bench and Common—Pleas (2 vols., 2nd edn. 1740Google Scholar; idem., the Compleat Chancery-Practiser (2 vols., 1730).

47 Appendix III: 2, 6, 7, 12, 15, 18, 19, 20, 45 and 46.

48 Appendix III: 11, 16, 17, 40, 41.

49 See Appendix in.

50 Ibid. In the one instance in which a non-judicial authority was cited, the reference was to Co.Litt (Appendix III, 34).

51 Ibid.

52 See Appendix I.

53 Hooker v. Hooker and an unnamed case; Appendix III, 18 and 27. Both are referred to by court and term. The former is reported in [1733] 2 Barn. 379; the latter, despite a search of the plea rolls, has not been found.

54 Hatton v. Hatton. In the manuscript, the reference is simply by term: Hill. 6 Geo. II (1733). It was subsequently noted in 2 Eq. Cas. Abr. 444.

55 Littlebury v. Buckley. No trace of this case has been found.

56 Appendix III: 27.

57 Appendix III: 18.

58 Mich. 6 Geo. 2, [1732] 2 Barn. 201; Hill. 6 Geo. 2, [1732] 2 Barn. 232; Hill. 7 Geo. 2, [1733] 2 Barn. 379.

59 4 December 1734.

60 Appendix III: 1.

61 Appendix III: 49.

62 In the former, William Clun's Case [1613] 10 Co. Rep. 127aGoogle Scholar. In the latter, Lord Rockingham et at. v. Oxenden et al. [1711] 2 Salk 579Google Scholar; Dupa v. Mayo [1645] 1 Wm. Saund. 275Google Scholar.

63 11 Geo. 2 c. 19, sec. 15.

64 See Appendix II.

65 For attendance figures, see note 28 above.

66 See Appendix III.

67 Appendix III: 4 and 6.

68 [1663] 1 Sid. 95Google Scholar.

69 Anonymous, [1690] 1 Salk. 278Google Scholar.

70 21 Jac. I, c. 15.

71 [1705] 2 Vern. 501.

72 See note 79 below.

73 Appendix III: 46 and 51.

74 Appendix III: 30.

75 [1595] 5 Co. Rep. 21b.

76 Appendix III: 30 and 51.

77 Rex v. Gall, [1699] 1 Ld. Raym. 371Google Scholar; Evans v. Thomas, [1608] Cro. Jac. 172Google Scholar.

78 As note 15 above.

79 Two possible exceptions to this generalisation should be noted. These are the references to non-judicial opinions in the text: the first, the reference to Mr. Solicitor's opinion in the protest of 29 May 1734; the second, in a crossed-out section of the text of the majority's resolution of 5 Feb. 1735, the reference to the opinion of Edward Bootle, a barrister. On one or both occasions, a member (or members) of the Club may have solicited the views of these individuals before coming to the meeting. At the same time, it is worth noting that it was the losing side (the protesters) who invoked Mr. Solicitor's opinion.

80 Besides the rather unusual case, discussed above, of William Lucas, other success stories that can be established are those of Boughey, Fothergill, Kent, and Olivant.

81 Brooks, “Interpersonal Conflict”, pp. 363–364.

82 We know that one of the club members, the Cheshire-born but London-based Nicholas Kent (who does not figure as an active practitioner in the central courts after 1740 and who did not join the SGP), did act in the 1740s and 1750s for at least two north-western gentry families, the Egertons of Tatton Park and the Leghs of Lyme. Fragments of Kent's correspondence with these clients from his native region survive in the John Rylands University Library: Egerton Mss. 2/1/95–103 (nine letters dating from the early 1740s to the late 1750s); Legh of Lyme Mss. (five letters from the early 1740s to 1750). Kent handled both litigation-related and other matters for the Egertons and Leghs, and Kent's successful practice seems to have been continued in the later 18th century by the firm of Kent and Darlington, some of whose letters also survive in the Legh of Lyme collection. Our attention to the former group of Kent's letters was drawn by Aylett's use of this correspondence in his “Attorneys and Clients”, pp. 346–349; however, we read them as indicating a closer professional and personal relationship between Kent and Samuel Egerton over the two decades than Aylett's account would suggest. Our thanks to Dr. Peter McNiven of the Rylands Library for informing us of Kent's letters to Peter Legh of Lyme and for making available copies of the two groups of Kent's letters.