Early History of Lawyers 1300-1700

Before the middle of the twelfth century, England was a country without lawyers. God was believed to be the judge of guilt or innocence and clergy were involved in proof, for example, the performance of oaths.²⁰ The church courts developed a division between advocates, who were trained at university, and proctors, who prepared cases and were not allowed to take on business without the assistance of advocates.

In the middle of the twelfth century civil courts developed. Their level of proce­dural sophistication generally lagged behind that of the church courts. Civil litigants were accompanied to court by relatives, friends or employees, who were allowed to speak on behalf of the parties.²¹ The hire of full-time advocates began in the reign Henry II (1154-1189).

Henry divided the country into circuits visited by travelling justices. He estab­lished the Court of Common Pleas, or Common Bench, which heard cases between subjects not involving the monarch. The establishment of national courts laid the foundations for the common law. Full-time judges, a system of national law and growing technicality in procedure created the conditions for legal representation in the courts.

¹⁸ AD MacIntyre, After Virtue: A Study in Moral Theory (London, Duckworth, 1985) at 112.

¹⁹ Cotterrell, ‘Law in Culture’ (n 15).

²⁰ EE Sward, ‘Values, Ideology, and the Evolution of the Adversary System’ (1989) 4(2) Indiana Law Journal 301.

²¹ ibid, at 10.

A. Work

i. Occupations

a. Serjeants at Law

The earliest full-time lawyers identifiable from records were called serjeants. In the thirteenth century they were termed narrators^[192] (‘one who tells a story’) and they may have been no more than translators or helpers rather than the oral presenter of cases to judges.

In the first part of Henry III’s reign the serjeants were a small group. Indeed, in 1239, a nobleman had to rely on an employee to speak for him because the king had instructed all the serjeants of the Common Bench.^[193] The numbers of serjeants expanded rapidly during the second part of Henry’s reign. Brand estimates that there were 12 serjeants in the Common Bench around 1278 and between 19 and 23 by 128 9.^[194] By the later Middle Ages, serjeants were equal in rank to knights. As the dominant lawyers in the early period, serjeants were the group from which judges were chosen.

b. Attorneys

Apart from the serjeants, the most significant group of civil lawyers in the Middle Ages were the attorneys. In the 1160s an attorney, perhaps an employee or family member, might speak on behalf of litigants in court with little formality. This was a great benefit to landowners and heads of ecclesiastical bodies which did not then have to appear personally. From 1182, a record was made on the court roll when an attorney appeared instead of a litigant.^[195] This suggests an attempt to regulate the use of attorneys.

Court records show that some attorneys appeared so frequently and for such diverse parties, that they must have been operating full-time. By 1260 at least eight such attorneys worked in the Common Bench.^[196] This number had grown to 102 by 1280 and to 200 by 1300. By the reign of Edward I (1272-1307) the appearance of attorneys was so frequent they had become an occupation.

By around 1300, attorneys were treated by the courts as the channel of communi­cation with litigants.

c. Barristers

By the early-1300s apprentices were recruited to train as serjeants. By the fourteenth century senior apprentices were allowed to practise as advocates in their own right outside the Common Bench. It is from these senior apprentices, rather than the ser­jeants, that barristers evolved.^[198] In 1596 Francis Bacon, then a barrister of Gray’s Inn, persuaded Elizabeth I to appoint him Queen’s Counsel Extraordinary, a rank superior to serjeant. Subsequent monarchs also appointed small numbers of Queen’s Counsel, all of whom enjoyed this seniority over serjeants.

d. Others

By the sixteenth century a range of occupations, including doctors, proctors, plead­ers, conveyancers and solicitors, fulfilled different legal jobs. Pleaders and conveyanc­ers approximated to barristers.^[199] Solicitors may have originally been servants of the litigants or of the attorneys conducting the litigation. They may later have carried out litigation tasks that an attorney could not carry out. They were recognised as a category of legal personnel by the end of the seventeenth century and were treated similarly to attorneys.^[200]

ii. Roles

Serjeants had higher status than attorneys, but many serjeants spent varying amounts of time as attorneys before elevation to the Common Bench.^[201] By 1300 there were about 30 serjeants in the Common Bench. These also appeared in other courts which might have their own complement of locally based serjeants. Records from provincial courts in the 1300s suggest that professional serjeants and attorneys operated at fair courts, seigniorial courts and hundred courts.^[202]

In the sixteenth and seventeenth centuries, lawyers were men of business not restricted to legal tasks.

B. Regulation

i. Canon Lawyers

Between 1274 and 1307 canon lawyers were subject to ethical requirements and could be suspended from practice.^[205] From at least 1237, canon law advocates took an admis­sion oath, swearing that they would serve clients faithfully and not unjustly delay opponents with ‘right on their side’.^[206] This does not seem to have been universal and some local bishops imposed additional responsibilities, like not knowingly acting in unjust causes. The second Council of Lyon (1274) imposed a general requirement of an annual oath on all lawyers in church courts in Western Europe.

A particular concern in the late-thirteenth century was litigation concerning mar­riage, where pursuit of an unjust cause could result in excommunication. Advocates appearing in matrimonial cases where judgment was given for the other side could be suspended. The leading ecclesiastical courts in London had a detailed code of con­duct for lawyers from 1295 covering, for example, presentation of false evidence, and containing a list of punishments.^[207]

ii. Civil Lawyers

The reign of Edward I witnessed the first treatment of lawyers as a group expected to observe high standards and exhibit ethical behaviour. The consistent numbers of ser­jeants at the Common Bench recorded towards the end of Edward I’s reign suggests that control of admission was exercised.

The first legislation concerned with the behaviour of lawyers was the Statute of Westminster (1275). Chapter 29 of the Act governed the penalty of a serjeant or pleader committing deceit, providing for the imprisonment for a term of one year and a day and disbarment.^[209] The Act refers to ‘deceit or collusion’, terminology sug­gesting concern about lawyers being guilty of champerty, but also of ‘ambidexterity’; receiving money from the other side.^[210] More detailed norms were actually developed by the courts.

From 1280 London courts had a code of conduct applying to all lawyers practising in city courts. Serjeants practising in the courts swore an oath to uphold the dignity of the city courts by, for example, not impugning decisions.^[211] The evidence is that, outside London, courts often did not recognise distinctive lawyer norms. There are, for example, many examples of jurors in local courts, who made accusations of mis­conduct against lawyers, alleging that lawyers spoke ‘as willingly for the true party as the false’.^[212] This shows that there was no recognition, at least in parts of the country, that lawyers were morally neutral.

Historical records contain many more examples of disciplinary action against attorneys than serjeants around the end of the thirteenth century.^[213] This is probably because attorneys were more numerous. The cases against them cover a wide range of behaviour. The main duty of the attorney for a plaintiff was to limit delay and to seize on any procedural default by the defendant. They were punished for fail­ing to perform diligently but also for misleading the court and tricking opponents or wasting the court and jurors’ time. The standard punishment was that provided for by the Statute of Westminster; imprisonment for a year and a day.

From these instances it can be seen that standards of behaviour were largely imposed by the courts on early lawyers. The disciplinary sanctions, such as suspension and disbarment were, however, of the kind that are nowadays associated with profes­sional disciplinary processes. Also, when attorneys were brought before the court for breaches of discipline the jury was often composed of other attorneys. Distinctive ‘professional’ norms were evolving in the City of London and the king’s court, the Common Bench at Westminster.

C. Community

i. Institutions

The regulation of early lawyers was largely by the monarch and through the courts. Legislation controlled the practice of both serjeants and attorneys. The possibility of regulation by the community of peers began to be realised with concentrations of lawyers at the Inns of Court. Lawyers probably worked in and around the Temple as advisers to the order of the Knights Templar.

The Crown obtained the land of the Temple on the dissolution of the Order of the Templars in 1312.^[214] The Inns probably evolved from the accommodation provided for lawyers and law students from about 1340. The Inn of Inner Temple was established by 1388, probably expanded in around 1609, when the Crown granted the former Templar land to the lawyers.^[215] The Inner Temple was the largest Inn, with Gray’s Inn, in Elizabethan times.

There were separate Inns for serjeants, for apprentices and for attorneys. While the Inns of Court provided a common location, a unified bar was not evident. This is because of differences in the practice of different courts, with serjeants having a monopoly in Common Pleas, the apprentices in law a monopoly before the other royal courts and the doctors a monopoly before ecclesiastical and admiralty courts.^[216] This encouraged distinctive group identities. It is known, for example, that serjeants addressed each other as ‘brother’.^[217]

Between the fourteenth and sixteenth centuries, records mention the current four Inns of Court, Inner Temple, Temple, Gray’s and Lincoln’s, situated in the Holborn area on the fringes of the City of London. By Elizabethan times, there were around 3,500 inhabitants of Inner Temple and Gray’s alone. From the 1500s several Inns of Court tried to exclude attorneys or to bar apprentices or students who worked as attorneys in vacations.^[218] From the middle of the sixteenth century they were formally excluded from most of the Inns of Court and confined to the subordinate Chancery Inns, which were eventually dissolved.^[219]

The chambers let to groups of barristers in the Inns created tight-knit communi­ties. The physical identity of the Inn, the requirement of belonging to an Inn before training for the Bar commenced and the tradition of communal dinners reinforced the idea of a group identity. It also provided a framework for effective informal discipline. Although the Inns of Court, and later the Senate of the Inns of Court, and the Bar Mess of the six Circuits had responsibility for discipline, the Bar often relied on more informal mechanisms, such as reporting infractions to the heads of chambers.

Attempts to exclude attorneys from the Inns came to a head in the seventeenth cen- tury.^[220] By that time, attorneys entitled to conduct litigation, who were probably better educated than other attorneys, were entitled to belong to an Inn. In 1614 the benchers of the Inns declared even these attorneys ‘but ministerial persons and of an inferior nature’.^[221] In fact, despite attempted purges, many attorneys did not go, or returned to the Inns. The significant fact is, however, that the Inns took no responsibility for them. The exclusion of the attorneys from membership of an Inn reinforced the superior status of the Bar in a divided legal profession.^[222]

ii. Organisation

a. The Bar

The fact that the Bar ultimately emerged as the strongest group of lawyers and a prototype profession is largely due to the Inns of Court. By the mid-sixteenth century apprentices were required to be called both to the Bar and to the bench of their Inn by giving a reading. This entitled an apprentice to be an utter barrister and, after about ten years performing work similar to that of an attorney, an advocate. The power of admittance distinguished the Inns. Serjeants and the doctors were admitted by the monarch and the Archbishop of Canterbury respectively.

b. Attorneys

Unlike the barristers, attorneys had weak organisation and little standing of their own. This is partly because they were a more diverse group. Like the different types of advocate, they were located in different courts with different practices and rules. They were also divided by the many different non-advocacy roles they performed. Additionally, the Chancery Inns of the attorneys did not develop the powers that the Inns of Court had over admission. Therefore, while the Inns of Court were beginning to control the conduct of barristers, attorneys continued to be subject to the jurisdic­tion of the courts in which they served.

Eventually, attorneys appearing in royal courts were required to obtain a royal grant. It is probably for this reason that attorneys were treated as officers of the court.^[223] Later, they were regulated by the same ordinance as pleaders, though prevented from acting as such.^[224] By 1403 judges had power to admit and remove attorneys. Despite direct control by the courts, there were frequent concerns about the conduct and disci­pline of attorneys. During the seventeenth century judges repeatedly called for them to be admitted to the Inns of Court. Burrage concludes that at one time or another ‘every agency of English government, and every available regulatory device, was deployed against them, but if public dissatisfaction is any guide, enterprising attorneys outwitted and eluded them all’.^[225]

iii. Education and Training

In Edward 1’s reign some Common Bench serjeants knew some canon law, perhaps hav­ing attended university. By 1278 lectures in common law litigation were given, probably at Westminster and aimed at intending attorneys.^[226] In the 1280s the records suggest attendance by apprentices in the court of the Common Bench. It appears that they may have been responsible for notes of cases, possibly made for their own use or for instruction. There also appears to have been regular use of questiones disputate, statements of facts, followed by questions of law and relevant arguments for both sides.

As courts began to refuse attorneys audience in the seventeenth century,^[227] the Inns insisted that practice as an advocate was deferred. By 1640, however, the high demand for lawyers meant that this could not be enforced. Call to the Bar began to operate as an immediate licence to practise. With this relaxation, the hierarchy of the Inns, the masters, benchers and readers, began to impose formal educational requirements on the Utter-Barristers and the inner barristers or students.^[228] By the late-sixteenth century the Inns had a relatively advanced educational role, although it is difficult to know how rigorous this was.^[229] Indeed, at different times in the Bar’s history, the discipline and education of the Inns was lax.

D. Ethics

Examples of current professional ethics emerge in early records. A case against a serjeant, William of Wells, suggests a duty of client loyalty was well established by 1282.^[230] William acted for the men of West Petherton in an action against the lord of the manor. He was subsequently sued by the men for transferring his services to the lord without their permission. His defence was that they had paid only one instalment of the agreed fee before telling him they did not need him. He also argued that he had not helped their opponent. This shows, first, that a serjeant could not leave a client’s service before the end of a case unless he was not paid or the client discharged him. Even then, he was not entitled to act for the other side unless given permission to do so.

In 1292, another serjeant was acting for a plaintiff against a defendant for whom he had previously acted in related litigation. The court decided that the serjeant must act for the defendant, his first client, because he knew ‘his secrets’.^[231] Another case of the same period suggests that a duty not to mislead the court also existed, although serjeants were not guilty of breach when following the instructions of attorneys. Nor were attorneys guilty of misleading the court when following the instructions of cli- ents.^[232] In the sixteenth century, attorneys were granted immunity from giving evidence about client confidences.

Attorneys were regarded as officers of the court and ostensibly subject to tighter control than barristers.^[233] This was partly because the main courts had their own staffs of attorneys and required that attorneys were separately admitted to each. It was not until the 1730s that lawyers began to be involved in criminal trials, on both sides, and to cross-examine witnesses.^[234] At about the same time, rules of evidence were formu­lated and juries became sole judges of fact.

From the sixteenth century, barristers took retainers from magnates and corpo­rations.^[235] By the 1640s however, the Bar had resolved ‘to act in the public interest, to represent all comers, not to tout or enter into improper contracts with particular solicitors for the supply of business’.^[236] By the second half of the seventeenth century, barristers eradicated direct relationships with lay clients. Receiving instructions only from attorneys, and looking to them for payment of fees, obviated the need to hold clients’ money. Arrangements for briefs, including fees, were negotiated by barristers’ clerks, elevating barristers above ‘trade’.

E. Ethos

i. Independence

The independence of the Inns was repeatedly tested during Tudor times, by the attempts of monarchs and parliament to enforce conformity to either Catholic or Protestant religions. There is evidence of some resistance to these efforts. Government manifested uncertainty as to its right to control the Inns, which ignored direct requests by monarchs. For example, despite a royal grant of the land occupied by Inner and Middle temple in 1608, the benchers refused or ignored subsequent and repeated requests by James I to form a militia.^[237]

Before the English Civil War (1642-51) the Inns of Court had considerable power but ill-defined rights and prerogatives. During the Protectorate (1653-59) which fol­lowed the execution of Charles I, the whole structure of law and the legal profession was subject to intense pressure for radical change. In fact, very little change occurred. A proposed reform of the Inns of Court was avoided by the ending of the Protectorate and the restoration of Charles II to the throne in 1660.^[238] Charles II encouraged the Inns to purge parliamentarians implicated in his father’s execution, but achieved little other direct reform of lawyers.

Charles II was responsible for a campaign which is seen to have considerable sig­nificance for the subsequent power of the Bar and later professions. With the aim of gaining greater control of his kingdom, the king began a campaign of reviewing and revoking the charters of self-governing bodies, ‘little republics’, such as municipal corporations, using a writ of quo warranto.^[239] This writ began a procedure asking by what authority a person or body held an office or privilege or a corporation its char­ter. Although the Inns of Court were not chartered, they were viewed in the same light as other ‘little republics’.

On his death, Charles’ campaign against the little republics was continued by his brother James II. As James’ reign was threatened by internal dissent he began to reverse his policy on charters, but it was too late to gain support and he was deposed. William of Orange acceded to the throne in what became known as the ‘Glorious Revolution’ of 1688. He guaranteed the rule of law and the security of chartered bodies. This promise never became law, leaving many chartered bodies, and the Inns of Court, in an ambiguous constitutional position.⁷⁰

The independence of the Inns was tested almost immediately by the increase in the numbers of King’s Counsel. Charles II made many such appointments to act against the little republics.⁷¹ Appointees were often benchers of the Inns, possibly as a way of gaining influence over the Bar, or were made benchers on appointment. Early in William III’s reign, King’s Counsel who were not benchers demanded, but were refused, this privilege.⁷² The dismissal of their claims by the courts established the right of the Inns to determine their own composition. It also sowed the seeds of a claim for the Bar’s constitutional independence from the state.

IV.