a proper substitute: and upon his being brought before the court in fo defenceless a condition, the judges are bound to [26] take care of his interefts, and they fhall admit the best plea in his behalf that any one prefent can fuggeft". But, as in the Roman law "cum olim in ufu fuiffet, alterius nomine agi

66

non poffe, fed, quia hoc non minimam incommoditatem habebat, "coeperunt homines per procuratores litigare," fo with us, upon the fame principle of convenience, it is now permitted in general, by divers antient ftatutes, whereof the first is statute Westm. 2. c. 1o. that attorneys may be made to profecute or defend any action in the abfence of the parties to the fuit. These attorneys are now formed into a regular corps; they are admitted to the execution of their office by the fuperior courts of Westminster-hall; and are in all points officers of the refpective courts in which they are admitted: and, as they have many privileges on account of their attendance there, fo they are peculiarly fubject to the cenfure and animadverfion of the judges. No man can practife as an attorney in any of thofe courts, but fuch as is admitted and fworn an attorney of that particular court: an attorney of the court of king's bench cannot practice in the court of common pleas; nor vice verfa. To practice in the court of chancery it is also neceffary to be admitted a folicitor therein : and by the ftatute 22 Geo. II. c. 46. no perfon shall act as an attorney at the court of quarter feffions, but fuch as has been regularly admitted in fome fuperior court of record. So early as the statute 4 Hen. IV. c. 18. it was enacted, that attorneys should be examined by the judges, and none admitted but fuch as were virtuous, learned, and sworn to do their duty. And many fubfequent ftatutes have laid them under farther regulations (1).

Bro. br, t. ideot. I.

• Inft. 4. tit. 10.

P 3 Jac. I. c. 7. 12 Geo. I. c. 29.

2 Geo. II. c. 23. 22 Geo. II. c. 46,
23 Geo. II. c. 26.

(1) The number of attorneys has much increafed within the last three centuries; for an act of parliament paffed in the 33 Hen. VI. c. 7. ftates, that not long before that time there had not been

OF advocates, or (as we generally call them) counfel, there are two fpecies or degrees; barrifters, and ferjeants. The former are admitted after a confiderable period of study, or at least standing, in the inns of court; and are in our old [27] books ftiled apprentices, apprenticii ad legem, being looked upon as merely learners, and not qualified to execute the full office of an advocate till they were fixteen years standing; at which time, according to Fortefcue', they might be called to the state and degree of ferjeants, or fervientes ad legem. How antient and honourable this state and degree is, with the form, fplendor, and profits attending it, hath been fo fully displayed by many learned writers', that it need not be here enlarged on. I shall only observe, that ferjeants at law are bound by a folemn oath to do their duty to their clients : and that by custom" the judges of the courts of Westminster are always admitted into this venerable order, before they are advanced to the bench; the original of which was probably to qualify the puisnè barons of the exchequer to become juftices of affife according to the exigence of the statute of 14 Edw. III. c. 16. From both thefe degrees fome are ufually felected to be his majefty's counfel learned in the law; the two principal of whom are called his attorney, and folicitor, general. The first king's counfel, under the degree of ferjeant, was fir Francis Bacon, who was made fo honoris See Vol. I. introd. § 1.

· de LL. c. 50.

t

Fortefc. ibid. 10 Rep. pref. Dugdal. Orig. Jurid. To which may be added a tract by the late ferjeant Wynne,

printed in 1765, entitled, "obfervations
"touching the antiquity and dignity of
"the degree of ferjeant at law."
t2 Init. 214.
Fortefc. c. 5o.

more than fix or eight attorneys in Norfolk and Suffolk quo tempore, (it obferves,) magna tranquillitas regnabat, but that the number had increased to twenty-four, to the great vexation and prejudice of these counties; it therefore enacts that for the future there fhall only be fix attorneys in Norfolk, fix in Suffolk, and two in the city of Norwich. As it does not appear that this statute was ever repealed, it might be curious to inquire how it was originally evaded.

For regulations refpecting attorneys, fee Burn, tit. Attorney.

caufa,

caufa, without either patent or fee ; fo that the first of the modern order (who are now the fworn fervants of the crown, with a standing falary) feems to have been fir Francis North, afterwards lord keeper of the great feal to king Charles II*. These king's counsel answer in some measure to the advocates of the revenue, advocati fifci, among the Romans. For they must not be employed in any cause against the crown without fpecial licence (2); in which restriction they agree with the advocates of the fifc': but in the imperial law the prohibition was carried ftill farther, and perhaps was more for the dignity of the fovereign; for, excepting fome peculiar causes, the fiscal advocates were not permitted to be at all concerned in private fuits between subject and subject. A custom has [ 28 ] of late years prevailed of granting letters patent of precedence to fuch barristers, as the crown thinks proper to honour with that mark of distinction: whereby they are entitled to such rank and pre-audience as are affigned in their respective patents: fometimes next after the king's attorney general, but usually next after his majesty's counsel then being. Thefe (as well as the queen's attorney and folicitor general")

(2) Hence none of the king's counfel can publicly plead in court for a prifoner, or a defendant in a criminal prosecution, without a licence, which is never refused; but an expence of about 91. must be incurred in obtaining it.

rank promifcuously with the king's counsel, and together with them fit within the bar of the refpective courts: but receive no falaries, and are not fworn; and therefore are at liberty to be retained in caufes against the crown. And all other ferjeants and barristers indifcriminately (except in the court of common pleas, where only ferjeants are admitted) may take upon them the protection and defence of any fuitors, whether plaintiff or defendant: who are therefore called their clients, like the dependants upon the antient Roman orators. Those indeed practised gratis, for honour merely, or at most for the fake of gaining influence; and fo likewife it is eftablished with us, that a counsel can maintain no action for his fees (3); which are given, not as locatio vel conduclio, but as quiddam honorarium; not as a falary or hire, but as a mere gratuity, which a counsellor cannot demand without doing wrong to his reputation: as is also laid down with regard to advocates in the civil law, whofe honorarium was directed by a decree of the fenate not to exceed in any case ten thousand [29] fefterces, or about 80%. of English money (4). And, in order

(3) Upon the fame principle a phyfician cannot maintain an action for his fees. 4 T. R. 317.

(4) The circumstances which led to this decree, as recorded by Tacitus, deferve to be mentioned. Samius, a Roman knight of diftinction, having given Suilius a fee of three thoufand guineas to undertake his defence, and finding that he was betrayed by his ad. vocate, ferro in domo ejus incubuit. In confequence of this the fenate infifted upon enforcing the Cincian law, qua cavetur antiquitus, nequis ob caufam orandam pecuniam donum-ve accipiat.

Tacitus then recites the arguments of those who spoke against the payment of fees, and of those who fupported the practice, and concludes with telling us, that Claudius Cæfar thinking that there was more reafon, though lefs liberality, in the arguments of the latter, capiendis pecuniis pofuit modum, ufque ad dena fefertia, quem egre repetundarum tencrentur. 1 Ann. lib. 11. c. 5.

But befides the acceptance of fuch immenfe fees, the perfidy of advocates had become a common tragic; for Tacitus introduces

the

to encourage due freedom of fpeech in the lawful defence of their clients, and at the fame time to give a check to the unfeemly licentiousness of prostitute and illiberal men (a few of whom may fometimes infinuate themselves even into the most honorable profeffions) it hath been holden that a counsel is not answerable for any matter by him spoken, relative to the cause in hand, and fuggefted in his clients inftructions; although it should reflect upon the reputation of another, and even prove abfolutely groundless: but if he mentions an untruth of his own invention, or even upon inftructions if it be impertinent to the cause in hand, he is then liable to an action from the party injured. And counsel guilty of deceit or collufion are punishable by the ftatute Weftm. 1. 3 Edw. I. c. 28. with imprisonment for a year and a day, and perpetual filence in the courts; a punishment ftill fometimes inflicted for gross misdemefnors in practice h.

the subject by obferving, nec quidquam publicæ mercis tam venale fuit quam advocatorum perfidia. To the honour of our courts the corruption of judges and the treachery of counsel are crimes unheard of in this country.