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caution to be observed in its use is not by any means too strongly expressed in the judgment of the Court; and if observed, the new jurisdiction will probably, sooner or later, become a dead letter, if it has not virtually become so already, on account of the obvious difficulties attending any attempt to enforce obedience to the writ: as may be gathered from the report of a recent case; where the Defendant, after verdict and judgment against him for libel, with heavy damages, continued, persistently, to publish repetitions of the libel, containing charges of fraud, perjury and conspiracy against the Plaintiff; yet the Court, in a subsequent action, refused to grant an injunction, and left the Plaintiff to his more appropriate remedy by indictment.* Now, if ever there was a case for the exercise of the new jurisdiction it was that one; an injunction was, however, very properly refused, and the Plaintiff left to his legal and constitutional remedy in a Criminal Court.
It was not until after the Judicature Act and the dictum of Sir George Jessel, M.R., in Beddow v. Beddow, that libel actions were brought into the Chancery Division. The bringing of such an action in that Division is an erroneous mode of procedure. Actions of libel belong to the Queen's Bench Division; and accordingly, where, in a recent case, the Plaintiff sued, in the Chancery Division, the Editor, Proprietor and Publisher of a Newspaper, in an action of libel, and claimed an interlocutory injunction, the Court refused to entertain the application, and said the action ought, forthwith, to be transferred to the Queen's Bench Division.t
A Defendant, against whom an action of libel is brought, has a right, whatever his defence, to a trial by a jury; and, until the case of the Quartz Hill Mining Company and that
* Salomons v. Knight (1891), 2 Ch. 294.
THE RIGHT OF COUNSEL, ETC.
of Bonnard v. Perryman, no Court, either of law or equity, had any authority, by statute or otherwise, to prejudge the case and issue an injunction to restrain the publication. The issuing of such a writ or order would have been a usurpation of the functions of a jury, an interference with the liberty of the Press, and a disregard of the Libel Act, 32 Geo. III., cap. 60. So long, however, as those decisions of the Court of Appeal remain unreversed, it will always be in the power of any Judge of the High Court to issue an injunction, in any libel action, to restrain the publication ; and, on appeal to the Court of Appeal, the Defendant will be met upon the very threshold of that Court with the decision in the case Bonnard v. Perryman! There will then remain for him, as his only solace, an appeal to that tribunal of last resort for disappointed suitors—the House of Lords.
H. C. FOLKARD.
II.-THE RIGHT OF COUNSEL TO BE
INSTRUCTED BY LAY CLIENTS.
T this epoch of history, the close of the Nineteenth
Century, by means of a very determined influence exercised by the seniors of the Bar, the average junior barrister has been taught to believe and now as a rule holds it as part of his creed, that he may not be instructed as counsel for a lay client without the intervention of an intermediary—solicitor or attorney. It is obvious that to a senior barrister doing a large practice, it is most beneficent to observe in all its fulness the so-called obligation of having another man-call him attorney, solicitor, procurator, agent, scrivener or whatever else you like—who will do the inferior work, that is to say, the work of taking the
instructions of the lay client for him, separating the wheat from the chaff, and finally bringing the case, bereft of all unnecessary appendages, to him, the barrister, for the benefit of his learned opinion, or for fight in the Forum. All this, be it remembered, being to the disadvantage of the junior barrister, who might obtain several of the lesser cases, now brought to his more fortunate brother, were that brother more hampered by doing all the inferior work of cases himself, instead of having another man—the intermediary—to do that work for him.
In the middle part of this century, however, the abovementioned superstition, of the necessity of the employment of an intermediary, met with a well deserved check at the hands of the Court of Queen's Bench, presided over by Lord Campbell, the Chief Justice.
The facts were these. Mr. Justice Patteson, at the Spring Assizes, 1846, for the County of Gloucester, tried a cause of ejectment in which the defendant appeared and pleaded in person; the case being Doe d. Bennett v. Hale. Mr. A. Newton, a barrister, appeared as counsel for the defendant, cross-examined the witnesses, and was about to address the jury on behalf of the defendant when the learned Judge inquired of him whether he was instructed by any attorney. Mr. Newton answered in the negative. The Judge thereupon refused to permit him to address the jury, stating that he should confine him to arguing any point of law which might arise. Fortunately for the history of the Bar, although unfortunately for the then defendant, the jury found a verdict for the plaintiff. In Easter Term, 1850, a Rule Nisi had been obtained for a new trial of this cause on the ground that the defendant ought to have been allowed to address the jury by his counsel. Mr. Keating shewed cause against the Rule, arguing that the Rule of Common Law was the same in Civil as in Criminal proceedings, i.e., that a party could only appear in person, that this Rule was first altered by the statute of Westminster II. (13 Edw. I., c. 10) which allowed parties to make general attorneys; but after that time the analogy between Civil and Criminal proceedings ceased, for a prisoner could not be defended by counsel. The party must have advocated his own cause to the jury, the counsel only assisted in arguing points of law. He also referred to II Hen. VII., c.
Hen. VII., c. 19, authorizing plaintiffs to sue in formâ pauperis, which does not allow of a party calling upon a counsel to act except through the intervention of an attorney, for it expressly gives the pauper the services of an attorney as well as of counsel gratuitously. He also referred to the then County Courts Act (9 & 10 Vict., c. 95), by sect. 91 of which it was provided that a barrister in a County Court must be instructed by an attorney. He admitted, however, that in criminal trials a prisoner had always been allowed to have himself defended by counsel, without the intervention of an attorney.
Mr. A. Newton, in support of the Rule, argued that the practice in criminal matters was conclusive, for the only question was whether there be any rule of law prohibiting a counsel from appearing without an attorney. A counsel might appear without a fee, for that was a matter entirely for his own consideration. It is not optional with a counsel to receive a brief, or not, if offered. The etiquette of the Bar alone could be relied on to prevent fees, less than those sanctioned by usage, being taken. In Equity Courts it is understood that the practice exists of taking briefs without the intervention of a solicitor, why then should not the same liberty prevail at Law? In the House of Lords it is the practice to allow persons who are not attorneys to conduct the business, there being an express Order that the parties be heard by themselves, their counsel, attorneys, or agents. In the Privy Council the practice is to allow others to conduct appeals besides the party or his proctor.
Judgment was delivered by Lord Campbell, Chief Justice, on behalf of the Court. The names of the Judges who sat during the Easter Term were, besides the Chief Justice, Mr. Justice Patteson, Mr. Justice Wightman, and Mr. Justice Erle. They were probably all present. The judgment was as follows:
“In this case we are called upon to consider whether in the Superior Courts there be a rule of law which prevents a defendant in a Civil suit, who has appeared to the process in person, from having in the stages of the suit in which counsel, if regularly instructed by an attorney, might assist him, the assistance of counsel instructed by himself without an attorney. There certainly has been an understanding in the profession that a barrister ought not to accept a brief in a Civil suit except from an attorney; and I believe that it is for the benefit of the suitors and for the satisfactory administration of justice that this understanding should be generally acted upon; but we are of opinion that there is no rule of law by which it can be enforced. The only statutable provision upon the subject is by the late County Courts Act (9 & 10 Vict., C. 95, s. 91), which enacts that a barrister shall not be entitled to appear in any of the said Courts unless he be instructed by an attorney. The statute of Westminster I., allowing an appearance by attorney, the statute 7 Will. III., C. 3, allowing in cases of treason a full defence by two counsels, and the statute 6 & 7 Will. IV., C. 114, allowing a full defence by counsel in all cases of felony, are silent as to the manner in which counsel are to be instructed. This being a matter of procedure, the Judges, of their own authority, might, according to their view of what was fit, have laid down a general rule determining under what conditions and restrictions barristers should be permitted to plead and have pre-audience before them, but no such Rule is to be found. The alleged restriction, therefore, must depend upon usage, from which it might be inferred that such a rule had been promulgated, although not now extant in writing. In Criminal Courts, it is conceded that the practice for a barrister not to plead unless instructed by an attorney, does not prevail, and we all know instances in which, with the sanction and at the suggestion of Judges, barristers