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The Rule therefore was made absolute?“ It should also be mentioned that, in the course of the arguments, Mr. Justice Erle explained that “counsel” formerly meant a friend retained to conduct the suit, adding that “ perhaps
he only escaped the penalties of maintenance by being paid for his services.”
It is interesting to notice that sect. 91 of the County Courts Act, mentioned in the above judgment, which prohibited a barrister from appearing in a County Court unless instructed by an attorney, was repealed by sect. IO of 15 & 16 Vict. at the instance of the late Lord Brougham, and it is thereby enacted that “a barrister retained by or on behalf of the party on either side” may address the Court, subject to such regulations as the Judge may from time to time prescribe for the orderly transaction of the business of the Court. And this Rule has been continued in County Court Acts to the present day.
Mr. Serjeant Manning has written the following note on the above case of Doe d. Bennett v. Hale :——
“Before the statute of Westminster II. (1 stat. 13 E. I), c. 10, plaintiffs and defendants were bound to appear in person unless authorized, by the King’s writ of dedimus potestalem de attornato faciendo, to substitute an attorney. Once before the Court they were at liberty to avail themselves of the assistance of a countor (pleader) who might stand by them, advise with them, and speak for them. In the King’s Court of Common Law, though it was otherwise in the Ecclesiastical Courts, the countor could only be a person of a particular class, selected by the Crown ad seroiendum ad legem, in administering justice as judges of the Courts of King's Bench and Common Pleas, and as justices of assize: or, when not so employed by the Crown, in assisting those suitors who were too ignorant of the law or too little acquainted with the (French) language in which the proceedings were carried on, to conduct their own cases.
“ But, when a general power to appear by attorney, had in 1285, been given by stat. Westminster II. (1 stat. 13 E. 1), c. I0,
and all persons were at liberty to appoint either general attorneys or attorneys ad lucrandum vet perdendum in a particular cause, it was thought expedient to restrict the appointment to persons presumed to be acquainted with the common law. The course of preparation for the degree of the coif was:—first, to pass some time in an inn of chancery, then to enter at an inn of court, and then to proceed through the degrees of inner barrister and outer barrister to that of apprentice at law, from which latter class the serjeants were chosen. “The serjeants were bound to attend the sittings of the Magnus Bancus (the Court of Common Pleas); and, as that Court had become stationary, whilst the Chancery, the King's Bench and the Exchequer still followed the person of the King, it was considered desirable that these Courts should have the assistance of advocates who had not yet been called upon to take the degree of the coif. A measure was resorted to for providing for both these wants. An order was made in Parliament in 1292 (1 Rot. Parl. 84 b.), entituled ‘de attornatis et apprenticiis, by which the justices of the Common Pleas were required to appoint a certain number de quolibet comitatu, de melioribus et legalioribus et libentiis addiscentibus, to attend the Courts, great complaints having been made in Parliament of causes being lost for want of serjeants (par defaute de Serjeantie); 1 Rot. Parl. 4 a ; 2 Rot. Parl. 14o a, b,; Mann. Serviens ad Legen, 268. From this period, apprentices at law enjoyed the double privilege of appearing as attorneys for suitors in all the common law Courts, and of acting as advocates in those Courts in which serjeants did not regularly attend. Thus, in the 11 Ed. III. (2 Rot. Parl. 96 b : Mann. Serv. ad Legem, 188), 70hn de Codyngton, an apprentice and attorney, was discharged by the council from a command of the Lord Admiral to appear at Orewell armed and apparelled as a man at arms. Afterwards persons were admitted to practice as attorneys who had not taken the degree of apprentice at law; and utter barristers were allowed to appear as advocates in the itinerant Courts without qualifying themselves to act as attorneys, within the Order of 1292, by taking the degree of apprentice. Of late years students (inner barristers), being certified special pleaders, have been allowed to act as advocates at the Judge's chambers. “At common law, the serjeant could seldom receive his instructions through an attorney; and, after the making of the
Order of 1292, although in the Common Pleas a serjeant might be instructed by an attorney, yet in other Courts the apprentice attorney would have no one to instruct but himself, until the separation of the two functions, which now generally prevails, had taken place ; a separation which does, however, exist in the proceedings of many Inferior Courts, and which has been discontinued in the case of the Crown, the King’s Attorney-General no longer instructing and assisting the King's serjeants, but conducting the King’s business himself."
Sir Patrick Colquhoun, writing about the same date (1854) as the above judgment of Lord Campbell, says (“Roman Civil Law,” Vol. iii., p. 317) :—“One of the advocati who were accustomed to frequent the Forum in more recent times, was usually requested to demand the action for the actor; but it is probable that at an earlier period the client first applied to his patron, in order to obtain his opinion on the case, and to secure his services in the suit, which would in England be called ‘retaining counsel.’ It was, however, the custom in Rome, for the patrons to pace up and down the Forum during the period at which the Court sat, which was four o'clock by the Roman, equivalent to about nine o’clock of our computation:—
“ Ventum erat ad Vestae quarta jam jbarte diei,
Praeterita; et casu tunc respondere vadato
in order to be consulted by their clients, and such others as required their aid and advice.
“In like manner, the serjeants used to assemble in St. Paul’s to be consulted by their clients in the City of London; and even at the present time a pillar in the Cathedral is assigned to a serjeant on his creation; for the very convenient practice of retaining counsel through the intervention of attorneys is of a comparatively modern
date—perhaps of not more than one hundred years backsince formerly no one was allowed to employ an attorney or agent who could appear in person, and then only by leave of the Court; a trace of this practice is observable in the ‘ calling the plaintiff,’ in cases of nonsuit.
Althcugh the intervention of an agent is in a great number of cases unnecessary, it is judged inconvenient to depart from the general rule in particular instances; hence the etiquette of the superior branch of the legal profession admits but three exceptions: when the client wishes to consult counsel upon the conduct of his attorney, because it is not judged advisable that another attorney should intervene in so delicate an affair; in the case of the drawing up of wills, because the client may wish to confide his future intentions to as few persons as possible ; and in the case of the defence of persons under indictment for criminal offences because, being for the most part indigent persons, it is not considered just to expose them to the additional expense of employing an attorney. The same reasons are probably applicable to cases in the Inferior Court, but this has as yet hardly become a settled practice.”
The reader will notice that at the time when the abovementioned judgment was delivered, and when Sir Patrick Colquhoun wrote, the intervention of an attorney or agent was by no means fully recognized; the practice of this intervention had been struggling for an existence for about a hundred years before that time, and was looked upon rather as a convenience than as an obligation. Sir Patrick Colquhoun, whilst adopting the extreme view of the desirability of the intervention, is nevertheless forced to admit that there are three important cases in which such intervention cannot be tolerated; and he further admits that the practice of intervention is comparatively speaking new, and unsupported by any legal enactment.
Mr. Serjeant Pulling (“Order of the Coif,” p. 2) says: “The Brothers of the Coif (serjeants) devoted to the profession of the law, bound by a solemn oath to give counsel and legal aid to the king’s people, were for ages to be found at their ancient rendezvous in St. Paul’s Cathedral, the Parvis, or their allotted pillar there, wearing their distinctive costume, the robe and the coif, ever ready to receive those who sought their assistance, to give counsel pur son donant to the rich, and gratis to the poor suitor, and to aid when called on in the judicial business of the king’s courts.” And again (p. I60), “the Round of the Temple Church like the Parvis of St. Paul’s was for ages professionally resorted to and used both by students and practitioners of the law.” These legal meetings are referred to by Ben Jonson in the “Alchemist,” and by Samuel Butler in “ Hudibras,” part 3, c. 3. Other instances could doubtless be found with a little research.
And such is the law at the present day. Barristers, i.e., apprentices of the law, have succeeded to the privileges of the serjeants, but the powers of the Bar have not been restrained by any statute. They are the same now as they ever were. And although it may be -urged that it is convenient for the rich suitor to have the use of the intermediary, to act as his agent, and for counsel in large practice to have the intermediary to perform the less dignified work for them, so as to render their own work shorter with regard to each case, and thereby to enable them to accept a larger number of cases and a proportionately larger number of fees, yet it should not be forgotten that many suitors are very poor, and that it is a matter of no little moment to them to be able to carry on a lawsuit, a prosecution, or a defence, without the expense of an intermediary. This the law allows them to do; this the law permits barristers to undertake. Without disparaging the utility of attorneys, or solicitors, and their bills of costs, it