public service, and immunity from suit, except in their own court, as the other officials of the various courts enjoyed.1

Their business, too, connected them closely with these officials. We shall see that their close connection with procedure and practice brought them into daily conduct with the prothonotaries, the cursitors, and the other clerks of the court.2 Indeed, it would seem that the connection was so close that it sometimes resulted in a combination to enrich the attorney at the expense of the client. The orders of the judges, which required that a candidate for admission as attorney should have served five years as a common solicitor, or as clerk to a judge, serjeant, barrister, attorney, or to a clerk of one of the courts of common law, show us that the attorney belonged essentially to the clerical side of the law. On the other hand, the barrister had no permanent connection with clerkship, or the clerical staff of the courts. He must know the forms of the court; but he was interested, not in the mechanical copying or working of these forms, but in the legal principles applied through them; and he was drawn from a social stratum different from that from which the attorney was drawn. No doubt in this period men who had begun as clerks made their way to the bar, and even to the bench. But generally in this period, as in the period of Fortescue, the expense of a career at the Inns of Court caused the barristers to be drawn from the sons of men of independent means, or of the more prosperous and successful men in various walks of life.

The education of the attorney and the barrister was necessarily different, and tended to become more different. Both branches of the profession needed and got an education in the theory and the practice of the law. But the main part of the education of the attorney consisted in his apprenticeship to a practitioner, during which he learned the construction and the use of the common forms and processes of the legal machine. On the

1 Christian, op. cit. 58, 59.

2 Vol. iii 645-646, 650-653; and see Lives of the Norths i 132-"the attorneys are always favourites of the officers, because they bring grist "-this is explained by the fact that each attorney, on his admission, was obliged to settle himself and his business with some one prothonotary, and not change without reason, Praxis Utriusque Banci 19.

3 Lives of the Norths i 131-132-apparently by connivance the attorneys were allowed to charge in their bills the fees payable to the offices which in fact they had never paid.

4The Practick Part of the Law 247, 302-303.

One famous instance is Saunders, C.J., below 564; but generally a prosperous career as an attorney led to posts like the clerk of the peace or clerk of assize; Reresby, Memoirs 90-91, tells of one Benson, "The most notable and formidable man of business of his time, and that had raised himself from being clerk to a country attorney to be clerk of the peace at the Old Bailey, to clerk of assize of the northern circuit, and to an estate of £2500 per annum, but not without suspicion of great frauds and oppressions."

6 Vol. ii 494.

3

other hand, the main part of the education of the barrister consisted in mooting and discussion, in reading and reporting, from which he learned the principles of the law both substantive and adjective.1 The attorneys read books; and, as members of the Inns of Court and Chancery, took the benefit of the legal education there given: similarly, the barristers sometimes learned draftsmanship by acting as clerks in the offices of the courts, and the rules of practice and the forensic art by conversing with, and the assistance of older practitioners. But in the legal education of these two branches of the legal profession the stress laid upon the practical and the theoretical side was quite different. "Although," says Roger North, "I was not a regular student to proceed in order and take in all the Year Books, but read the more modern reports, I digested them well by commonplace, which was a good foundation and preparative for me to build upon, which I afterwards learnt in practice. And I must own to that, more of my skill in the law than from hard reading; but without a competency of the latter, the others would not have done, no more than bare reading without practice which pedantiseth a student, but never makes him a clever lawyer." +

6

8

The reason for these differences in their mode of education we must seek in the difference of the work which fell to their lot. This difference of work is brought out clearly in the literature which some of the attorneys composed for their fellow practitioners. If we look at books like the Attorney's Academy," the Compleat Solicitor, the Practick Part of the Law, or the Practising Attorney, we are at once struck by their intensely practical character. They are concerned with the process of the different courts, with instructions as to the manner and time of taking the various steps in an action, with the forms of pleading, with the modes of executing judgment, with the fees payable at the different offices of the courts, with the forms of conveyances and other documents which clients would be likely to need. A good deal of law is sometimes interspersed; but it is treated and regarded wholly

1 Vol. ii 506-508; below 481 seqq.

2 Dyer, C.J., in 1567 told a jury of attorneys and clerks of the Common Pleas that he himself had acted as a clerk, Praxis Utriusque Banci 46; as Roger North says, Lives of the Norths i 28, "Forms are better understood and learned by writing than by reading; for that exercise allows time; which consideration hath made clerkship so recommendable to beginners that most enter the profession of the law that way."

3 Below 498; cp. vol. ii 508 and n. 1.

4 Lives of the Norths iii 89.

5 Vol. v 381-382.

The Compleat Solicitor, Entering Clerk, and Attorney, first published 1668, 2nd ed. 1683.

7 The Practick Part of the Law, Shewing the office of an Attorney, and a guide for Solicitors in all the courts of Westminster, first published 1678, 3rd ed. 1702.

8 The Practising Attorney; or Lawyer's Office: containing the business of an Attorney in all its branches, by William Bohun, 2nd ed. 1726.

from a severely practical standpoint. It is set out in bare rules, with no attempt to state the underlying principles, because it was knowledge in this form that the attorneys required.1 On the other hand, the successful barrister must know something of legal principles underlying the rules of the common law. He must know something of the Year Books and the older cases if he was to argue points of law successfully, or give advice on cases stated to him. The art of examining witnesses, and of presenting the facts in a manner favourable to his client, was more important than a minute knowledge of how to put and keep in motion the formal machinery of process.

2

3

This division of work did not come all at once. In the Middle Ages the management of process was a very much more complicated and serious matter than it was at the end of the seventeenth century. It was often pre-eminently a question for counsel, as the whole case might depend upon a single skilful move. And in this period, as at the present day, the younger members of the bar were brought more closely into touch with this part of the attorney's work than the leaders. The future judge, Sir James Whitelocke, the future lord keeper Guildford, and his biographer and brother Roger North, all occupied themselves with court keeping while they were waiting for a practice. As Roger North explained," they found that it taught them much both of the theory and the practice of the law; and, as he said, "the knowledge how to conduct such a court fits a man to be a practiser even at the Common Pleas Bar."

4

But, towards the end of this period, the division of work between the two branches of the profession was becoming more clearly defined. For instance, in the business of court keeping, the ordinary business, of the manorial courts was falling to the attorneys, while the barristers continued to be judges of the

1 Thus C. G. Cock, English Law (1651) 43, says, "I know the labours and pains of a faithful and honest attorney is great and very painful and laborious, in running from office to office, from clerk to clerk, counsel to counsel, judge to judge, court to

2" It was not moroseness, but reason, that inclined his lordship to deal as much as he did with the Year Books; and however at present that sort of reading is obsolete and despised, I guess there will not be found a truly learned judicious common lawyer without it," Lives of the Norths i 28.

3 Vol. ii 520-521; vol. iii 597-607, 623-627.

4 Whitelocke was called in 1600; at Michaelmas, 1601, he tells us, "The colledge of St. John in Oxon [of which he had been a fellow], bestowed on me the stewardship of thear lands," Liber. Fam. (C.S.) 15.

5 Lives of the Norths iii 107-108; see the passage cited vol. i 186-187. Lives of the Norths iii 139; the fourth Part of the Practising Lawyer, the second edition of which was published in 1726, deals with the rules as to the keeping of manorial courts. The stewardship of St. John's College, Oxford, which Sir James Whitelocke held, above n. 4, is now held by the college solicitor.

larger franchise courts.1 Roger North laments that the attorneys had encroached upon the practice of the younger members of the bar, because the latter "have left the mechanic part of their practice, that is to speak with the client at the first instance, to state his business, and to advise the action." He pointed out that it would not do for the younger barrister to ignore entirely such learning. "If young gentlemen will ever think to secure a practice to themselves, they must set pen to paper, and be mechanics and operators in the law as well as students and pleaders. Mere speculative law will help very few into the world . . . the other can scarcely fail." But, obviously, it was becoming evident that the barrister must give more attention and time to the speculative part of the law; that they must therefore curtail somewhat their training in the work of the attorney's branch of the profession; and acquire it, as lord keeper Guildford acquired it, and as students now acquire it, in their student days. The "mechanic side" of their own profession could be learnt in the chambers of their seniors.4

Two consequences followed from this division of work.

In the first place, as Roger North pointed out, the class of work which the attorney did tended to bring him much more closely into touch with the lay client than the barrister. 5 The barrister must be consulted when difficulties occurred; but it was the attorney, and not the lay client, who knew when such a difficulty occurred, and how to state it clearly. Therefore he, rather than the lay client, tended to be the client of the barrister. We shall see that this tendency to remove the lay client from direct contact with the barrister was increased by the introduction of written pleadings. The attorney, with the help sometimes of counsel and sometimes of the officials of the court, prepared these pleadings from his client's instructions. The barrister argued the

1 Francis North was judge of the franchise of Ely, Lives of the Norths i 55; Roger North was temporal Steward to the See of Canterbury, ibid iii 109; the judge of the court of Pleas in Durham and Lancaster was in later days always one of the judges of the courts of common law, vol. i 112 n. 3; and the chancellorship of Durham was frequently held by judges or eminent equity practitioners, such as Romilly, Eldon, and Redesdale, Romilly, Memoirs i 429, 431.

Lives of the Norths iii 139-" Anciently, as I have been informed, all conveyancing, court keeping, and even the making of breviats at the assizes was done by the lawyers. Now the attorneys have the greatest share;" and this tendency was evident as early as 1651-C. G. Cock, English Law 44, says that the attorneys often kept "those pestilencies of England, Lords' Courts, they take all the work, which was heretofore the way of educating and bringing into practice the young lawyer."

8 Below 447.

4 Below 498.

5. The first undertaker in business doth all, and he must go through in the cause; he is instructed and can instruct others; he is resorted to on all occasions; he (perhaps) disburseth money, and is easy to let himself into the business," Lives of the Norths iii 139.

case on the basis of the pleadings so settled; and thus he tended to become much further removed from the actual litigant, than was possible in the days when he orally pleaded at the bar the tale which he had himself elicited from the lay client, and for the truth of which he took some responsibility. It is clear from Harrison that the change was beginning in Elizabeth's reign; it is clear from Roger North that, though it had not hardened into a fixed rule of professional etiquette, it was almost complete by the end of this period.

5

In the second place, the difference between the class of work done by the barrister and that done by the attorney, led to the modern difference between the legal relations between them and their clients. We do not find any difference in the Middle Ages. Both alike could sue for their fees. But it was laid down in 1629-1630 that a barrister, unlike an attorney, could not sue for his fees. This rule made its first appearance in the court of Chancery; and it almost certainly originated in reminiscences of the rules of Roman law as to legal position of members of the learned professions in relation to their clients. However that may be, it clearly emphasized the truth that the work of the barrister was more "liberal in character than that of the attorney.

These differences had been becoming apparent all through the sixteenth century; and in the seventeenth century they had become quite obvious. So obvious had they become that, in 1614, it could be stated quite generally by the benchers of the four Inns that "there ought always to be preserved a difference between a counsellor at law, which is the principal person next unto the serjeants and judges in administration of justice, and attorneys and solicitors which are but ministerial persons and of an inferior nature." 7 Therefore, as we might expect, both before and after

1 Below 445-446; cp. vol. iii 638, 646-647.

2" The time hath been that our lawyers did sit in Paul's upon stools against the pillars and walls to get clients, but now some of them will not come from their Chambers to the Guildhall in London under ten pounds, or twenty nobles at the least. And one, being demanded why he made so much of his travel, answered that it was but folly for him to go so far when he was assured to get more money by sitting still at home," cited Christian, op. cit. 45.

4 Vol. ii 491.

3 Below 444. 5 Moor v. Row 1 Ch. Rep. 38; that this decision was in accordance with the current of feeling in the profession appears from the preface to Davis's Reports; Sir J. Davis says, at p. 23, "the fees of professors of the law are not duties certain growing due by contract for labour or service, but gifts; not merces, but honorarium ; see Kennedy v. Broun (1863) 13 C.B. N.S. 677, where all the authorities from the days of the Y.BB. are elaborately discussed.

& Bradford v. Woodhouse (1619) Cro. Jac. 520; Sands v. Trevilian (1628) Cro. Car. 107.

7 Dugdale, Orig. Jurid. 317-orders of the king and the judges § 4; cp. orders of 1631 § 6 ibid 320, "For that there ought alwaies to be observed a difference between utter-barristers, Readers in Court, and Apprentices at law, which are the principal