475 XXIV.-ON PROMOTION AT THE ENGLISH BAR:ITS EFFECT ON THE BARRISTER, THE CROWN, AND THE SUITOR. BY EDWARD WEBSTER, Esq., BARRISTER-AT-LAW. (Read on the 27th May, 1861.) SOME persons may suppose a member of the Bar to be, from personal interest, incapable of giving the subject of the present lecture a calm and unbiassed consideration; and, as he has freely adopted his profession, that he cannot honourably object to any of the customs affecting it. Hence it may be alleged, that the Bar should leave their fellow-citizens not of the legal profession to question, if there be any cause for questioning, the expediency of certain selected members of the Bar having conferred upon them at the will of the Crown, and without any public services, a grade of honour and exclusive forensic privileges. So far from being incapable, a barrister is of all persons the best qualified to arrive at a sound and impartial judgment, upon the expediency of abandoning, retaining, or amending, any of the customs affecting his profession; and if there be reasonable grounds for apprehending, either that they are not the best that can be devised, or that they are in their operation injurious, he has a right to canvass them, and to have them fully and publicly considered, especially by a society professing to be juridical. It may however be, and is readily admitted, that the interests of the Bar are inseparable from those of the State; and therefore, however open to objection the principle may be, if there be any principle at all, on which promotion at the Bar is made, yet, if it be that best adapted for the Crown and the Suitor, the Bar should be silent. It is, then, on public grounds that I venture to bring the present subject to the notice of this Society. In the reign of Henry VIII., those four associations, called the Inns of Court, appear to have been formed by persons voluntarily united for the common purpose of becoming proficient in the highest branches of the law. They appear to have consisted of members divided into four grades, of which the apprentices or Inner "Baristers," or Barristers (a), now called the Students, were the lowest. The next in rank were the "Utter Baristers" or Barristers, which expression denoted a degree for legal learning given by the Inn of Court to which the apprentice belonged, but which degree conferred no right to undertake the duties of a Barrister at Law (b). The next in rank were Jurisconsults, called Counsel or Counsellors, or Barristers at Law, and the remaining members were the Benchers; who were the governing body of the Inn, and who were from time to time selected from amongst those Counsel of the Inn who were of not less than twelve years' standing, men of learning, practice, and good and honest conversation (c), or at the Inner Temple from Utter Barristers (d). The probationary course of study required from a member of the Inn, before he became entitled to undertake the duties of a counsel, were, in the reign of Henry the VIII., as follows, viz.; After he had obtained the degree of Utter Barrister, a further period of legal study for ten years was required from him, which period was in the reign of Elizabeth reduced to five (e), at the end of which time he was entitled to plead in any Court at Westminster, and to subscribe any action, bill, or plea (ƒ). Possibly the term "Barrister at Law" was used to denote the advance from the degree of Utter Barrister to that of Counsel. The Benchers from amongst themselves also chose Readers of two kinds, one called a single, the other a double reader; a reader becoming a double reader by officiating as reader a second time, after an interval of nine or ten years. The office of Reader comprised the duties of Tutor, Judge of the mootings (which were contentious arguments on some legal question by members of the Inn below the rank of counsel)and Lecturer, and the educational department of the Inn was (a) Waterhouse Comm., 544; Dugdale's Or. Jur., 158. (b) Or. Jur., 311; 5 Foss., 109; Manning's Sergeant, 180; 5 Reeve's Hist., 247. (0) Dugdale's Or. Jur., 144, 316. (e) 5 Foss., 424. (d) Id., 162. chiefly under his supervision and guidance. The office of Reader was therefore one of much importance, and from the double readers the Crown selected its law-officers, including the Royal or Crown sergeants (a). Sergeants' Inn had always stood alone in its customs. It was, as regards the Bar, the stronghold of the Crown, being composed of Barristers selected and compellable (b) by the Crown to take upon themselves the state or degree of Sergeant at Law; without which state or degree no barrister could become a judge of any of the three Common Law Courts at Westminster. The Sergeant at Law bound himself to serve the King and his people, and also undertook not to take any fees for any matters where the Crown was a party, against the Crown; and, if called upon, he was bound to counsel the Crown (c). His liberty of appearing as counsel for one of the people against the Crown was therefore so much restricted that the Sergeant at Law was virtually retained by the Crown; and doubtless, in consideration of this, and for the purpose of keeping up the influence of the Crown in the Inns of Court, the Sergeants in the (d) Court of Common Pleas, when at Westminster, had a monopoly as against the whole of the other members of the Bar except the law-officers of the Crown, who when engaged for the Crown, and not otherwise, had a right of pre-audience over the Sergeants.-(Brownlow v. Cox, 3 Bulstrode, 32) (e). In all the other Courts, for any thing appearing to the contrary, the Bar of England was, up to the year 1668, one body; each member having a right of pre-audience, and a seat in Court according to his rank or seniority. So jealous were the Inns of Court of any interference in their affairs by those nominees of the Crown, the sergeants-at-law, that upon a barrister becoming a sergeant-at-law he was obliged formally, and with much ceremony, to take leave of his Inn. The lawofficers of the Crown consisted of the Attorney-General, the (a) Or. Jur., 144. (c) Manning's Serg., 191. (b) Wynne's Tracts, 356. (e) It must, however, be borne in mind, that Bulstrode was not a Common Pleas Reporter.-E. W. Solicitor-General, the Royal Sergeants, the Attorney of the Court of Wards and Liveries, the Attorney-General of the County Palatine, and the Attorney-General of the then Court of Augmentations (a). Francis Bacon, afterwards Baron Verulam, Viscount St. Albans, in the year 1580 became a member of Gray's Inn, and in the year 1583 he appeared in the dress of an Utter Barrister (b). It is reasonable, therefore, to presume that he had then obtained that degree, although Lord Campbell states that he was not called to the Bar until 1586 (c), which, considering the then existing rules of the Inns of Court, may be true. Having become the Reader, and having been invited to the Bench of his Inn, he in 1586 applied to his uncle, the Lord Treasurer, to be called "within the bars" (d); an expression somewhat singular, and of doubtful meaning. It probably meant that he might be permitted to practise at the Bar before his time came, according to the rules of Gray's Inn. Be that as it may, he in 1586 took his seat within or at the Bar as an ordinary counsel; in whose favour, owing to his marvellous learning and ability, and his extraordinary interest with those in power, the rules of his Inn were departed from, In the year 1590 he was sworn "Counsel Extraordinary" to the Queen, without fee or reward; and, soon after the accession of James I., he was constituted, by letters-patent, the King's counsel learned in the law, with a salary of £40 a-year, having been previously knighted. Sir Francis Bacon was therefore the first Barrister specially appointed by patent to act as counsel to the Crown. According to a very learned Sergeant (e), who is contradicted by the late Sir William Follett (f), between the appointment of Sir Francis Bacon in 1590, and that of Mr. North in 1668, presently mentioned, other King's counsel were appointed, but it does not appear that their appointment or that of Bacon interfered in any way with the government of the Inns of Court. (a) Dugdale's Or. Jur., 144. (6) 1 Birch's Memoirs, page 33. (d) 16 Mont. Bacon, p. 23. (e) Woolrych, Jour. L.A.S. 1857-8, p. 106. (f) Manning's Sergeant, 25. |