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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. (I3 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. 19, authorizing plaintiffs to sue in formri 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 & IO Viet., 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 ]ustice, Mr. ]ustice Patteson, Mr. justice \Vightman, and Mr. _]ustice 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 ofjustice that this understanding should be generally acted upon ; but we are of opinion that there is no rule oflaw by which it can be enforced. The only statutable provision upon the subject is by the late County Courts Act (9 & IO 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 ]udges, 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
have defended prisoners without the intervention of an attorney.
“ There would be a great difficultyin drawing a strict distinction for this purpose between Civil and Criminal proceedings, and between Civil and Criminal Courts. The obligation upon the owner of land to repair a highway may be tried upon an indictment ; and a man may be charged with an offence in the shape of an action to recover a penalty. On the Circuit, we familiarly talk of the Crown side and of the Civil side; but questions respecting insolvent debtors used to be discussed and determined in the Crown Court, and at Nisi Prius there are tried not only cases of mandamus and quo warranto, but criminal informations and indictments for misdemeanours. Even an indictment for the crime of murder may be removed into this Court by certiorari, and tried at Nisi Prius.
“In strictly Civil suits the usage has not been invariably uniform, as we must presume it would have been had it been regulated by a law which as propounded admits of no exceptions. Instances have been mentioned to us in which counsel of great eminence and high honour have thought that from peculiar circumstances they were justified, with or without a fee, in holding a brief delivered to them by the party without any attorney being employed. There is no decided case which can assist us, for in The King v. Sir Francis Burdett, and Moscati v. Lawson (7 Car. & P. 32), the question was not respecting the intervention of an attorney, but whether if a party conducts the trial himself as his own counsel, he may likewise have the assistance of counsel to argue questions of law, and to examine witnesses. If immemorial usage be relied upon, we must remember that sergeants-countors and other counsel existed in England long before the time of Edward I., and there seems every reason to believe that they communicated directly with the parties. Chaucer speaks of
“ ‘A serjeant-at-law wary and wise
“ The Parvise is well known to have been a sort of exchange at St. Paul's, where all ranks met to do business, and the serjeantsat-law, like Roman patrons, gave advice to all that came to consult them. Afterwards, each serjeant-at-law had a pillar in the Cathedral assigned to him, where he stood and communicated with his clients. The advantage to be derived from sub-dividing the business of conducting a suit, and having two orders in the profession of the law between whom it should be distributed, became more and more felt; but for a long time the attorney only sued out process, and did what was necessary in the ofiices of the Court for bringing the cause to trial and for having execution on thejudgment. I highly approve of the demarcation finally drawn between the ‘functions of the attorney and those of the counsel, and I believe that the intervention of the attorney between the counsel and the party has greatly contributed not only to the dignity of the Bar, but to the improvement of English jurisprudence. I revert to the practice of former ages only for the purpose of shewing that the onus here does not lie upon the defendant to vouch an Act of Parliament, or rule of Court, or decision to support the privilege which he claims.
“ I am by no means insensible of the inconvenience which may arise from this privilege being judicially recognized. But I do earnestly trust that it will not alter the almost uniform usage which has prevailed upon the subject for more than a century, and that the interference of the Judges to rectify any abuse of it will not be necessary. Exceptional cases may again occur, though very rarely, when it may be fit for barristers to plead in Civil suits instructed only by the parties, but they may continue generally to adhere to what has been considered the etiquette of the Bar, for although ever ready to render their best assistance for the discovery of truth and the vindication of right, they are at liberty, under the control of the Courts, to lay down conditions upon which, for the public good, their services are to be obtained.
“ Nor can that highly honourable and useful branch of the profession, the attorneys, be prejudiced by this decision, for it would be penal for any class of men to perform any of the functions which properly belong to an attorney; and their intermediary agency between the parties and the counsel, so conducive to the due administration of justice, will, I hope, remain unimpaired. At any rate, we can at present only look to see how the law is, leaving any inconvenience which may be produced by it to be remedied by the authority of the Judges or of the legislature.
“ Upon the whole, we are of opinion that the Rule for a new trial ought to be made absolute.”