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have defended prisoners without the intervention of an attorney.
“There would be a great difficulty in 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. Siv 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
That oft had been at the Parvise.'
« 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 offices of the Court for bringing the cause to trial and for having execution on the judgment. 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, re ain 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."
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. gi 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. 10 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
person unless authorized, by the King's writ of dedimus potestatem 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 serviendum 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 co luct 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. 10,
15 Q.B. (Adolp. & Ell., New Series) 171; s.c. 19 L.J. (Q.B.) 353.
and all persons were at liberty to appoint either general attorneys or attorneys ad lucrandum vel 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 libentiùs addiscentibus, to attend the Courts, great complaints having been made in Parliament of causes being lost for want of serjeants (par defaute de serjeantie); i Rot. Parl. 4 a; 2 Rot. Parl. 140 a, b; Mann. Serviens ad Legem, 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), John de Codyngton, an apprentice and attorney,
, was discharged by the council from command of the Lord Admiral to appear at Orewell armed and apparelled as a
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 Vestæ quarta jam parte diei,
Præterita ; 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
* Hor. Sat. I., 9, Verse 35.