The Ranks of the Legal Profession in England

Case Western Reserve Law Review Volume 11 | Issue 4 1960 The Ranks of the Legal Profession in England Anton-Hermann Chroust Follow this and additional works at: http://scholarlycommons.law.case.edu/caselrev Part of the Law Commons Recommended Citation Anton-Hermann Chroust, The Ranks of the Legal Profession in England, 11 Cas. W. Res. L. Rev. 561 (1960) Available at: http://scholarlycommons.law.case.edu/caselrev/vol11/iss4/5 This Article is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Law Review by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. 1960] The Ranks of the Legal Profession In England Anton-Hermann Chroust INTRODUCTION The thirteenth and fourteenth centuries were the formative era of the English legal profession, while the fifteenth, sixteenth and seventeenth centuries might be called the period of its consolidation. During this latter period, the barristers became thoroughly organized through the Inns of Court, and, together with the serjeants, they subsequently obtained a monopoly of handling all legal business in the higher (royal) courts. Professional lawyers made their first appearance during the reign of Edward I (1272THm AUTHOR (A3., Wuerzburg, L L.B., 1307) 1 From its inception, LLM, J.U.D., Edangen, M.A., Munich, SJ.D., Harvard, Ph.D., Munich) is Professor of Law, Notre Dame Law School the profession has been di- vided into two major branches, each performing distinct functions: the "pleaders" (narratores, servientes, serjeants and later the barristers) who merely "spoke" for the parties in court, and the attorneys (attornati and later the solicitors) who fully represented the parties. Each of these two branches was subject to different rules and restrictions. Soon also the apprentices (apprenticii) - a sort of advanced "law students" - received official rec- ognition as "lawyers." In keeping with the educational and professional trends of the late Middle Ages, practitioners and apprentices alike resorted to collegiate life by congregating in "Inns."' During the fourteenth century the serjeants came to be recognized as the undisputed leaders of the profession. They were appointed by the Crown from among the Benchers (or Readers) in the Inns of Court, usually upon recommendation of the royal judges. For a long time the royal Bench itself was recruited from among the ranks of the serjeants. But it is impossible to determine the exact time when the serjeants acquired a monopoly of promotion to the Bench,' or when the particular privileges attached to serjeanty became universally recognized. By the end of the fourteenth century 1. Cf.Chroust, The Legal Profession during the Middle Ages: The Emergence of the English Lawyer prior to 1400, Part I, 31 NoTRE DAME LAW. 537-601 (1956); PartII, 32 NoR DAmE LAW.85-140 (1956); Part III, 32 NOTRE DAMM LAW.268-299 (1957). 2. Cf. Chroust, The Beginning, Flourishingand Decline of the Inns of Court, 10 VAND.L. REV. 79-123 (1956). 3. This monopoly, which for allpractical purposes had ceased to exist by the end of the seventeenth century, was formally abolished in1873. WESTERN RESERVE LAW REVIEW [September the serjeants had succeeded in forming a close guild, and until the dissolution of the Order of Serjeants in 1877, they dwelled in the Serjeants' Inns together with the royal judges. Beneath the serjeants (and the judges) were the apprentices whose history is closely connected with the history of the Inns of Court (and Inns of Chancery.) The apprentices were the inmates or members of these Inns. They ranked either as Benchers, Readers, Utter-barristers, Inner-barristers, or "students." Upon his appointment to serjeanty, the former apprentice (or barrister) left his Inn and moved to one of the Serjeants' Inns. Although the Inns of Court were independent societies, the serjeants (and the judges) retained considerable control over matter affecting the qualification, education, and conduct of the inmates of the Inns; they assisted the Benchers in the performance of their many tasks; and they tacitly allowed those who had been called to the Bar by their Inn also to practice in their courts. The Inns of Court were governed by the Benchers. The Readers took charge of the lectures and, occasionally, of the moots.' After having successfully read at his Inn the prescribed number of times, the Reader was usually promoted to the rank of Bencher.' Next in line to the Readers were the Utter-barristers, that is, those members of the Society who "for their learning and continuance are called by the ...Readers to plead and argue ... motes . . and this degree is the chiefest degree for learners in the house next to the Benchers. ' ' 6 The remaining members of the Inn were called Innerbarristers or "students" who lacked experience as well as length of residence in the Inn. Traditionally, the barrister (or the serjeant) addressed, and still addresses, the court or the jury during the actual trial of the case. He takes the part which his client would have to take if he were to conduct his case in person. In the beginning, the barrister (pleader) seems to have been a kind of casual helper who volunteered to speak for a litigant unable to plead for himself. Subsequently, he obtained official recognition by the courts as one suitable "to be of counsel" with the litigant. It is quite likely that initially the barrister owed the privilege of audience in the court to special leave by the courts. But at some unknown date this privilege came to be exercised by the four Inns of Court which with the silent approval of the judges began to claim the sole right of calling a man to 4. It will be noticed that all ranks below that of serjeant originally were referred to as "apprentices" or "barristers." The term "barrister" or "barrister-at-law" did not come into common use until the sixteenth century. At present "barrister-at-law" is the popular term signifying an utter-barrister. The term "inner-barrister" has long been obsolete. 5. During the seventeenth century the King's Counsel acquired a prescriptive right to be made a Bencher without having been a Reader. 6. Waterhouse, FORTESOCUTUS ILLUSTRATUS, OR COMMENTARY ON DE LAUDIBUS LEGUM ANGLIAE 543 (1663). 1960] ENGLISH LEGAL PROFESSION the Bar. The fact, however, that the barrister started out as a casual and detached helper, as a sort of "his master's voice," affected, and still affects, his relationship to the client: he cannot bind his client by anything he says in the court, neither may he be held liable for negligence in the conduct of a client's case. At first, the barrister and the serjeant dealt directly with their clients. They advised them on all legal matters without confining themselves solely to litigation, and, at least until 1629, they could sue for their fees. 7 But after (...truncated)