Lawyers in Early Modern Europe and America 0709900600, 9780709900603

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Lawyers in Early Modern Europe and America EDITED BY WILFRIDJ’REST

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©1981 Wilfrid Prest Croom Helm Ltd, 2-10 St John’s Road, London SW11

British Library Cataloguing in Publication Data Prest, Wilfrid Robertson Lawyers in early modern Europe and America 1. Lawyers - Europe - History [Law] I. Title 340’.023 ISBN 0-7099-0060

Printed and bound in Great Britain by Biddles Ltd, Guildford and King’s Lynn

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CONTENTS

List of Abbreviations Introduction Wilfrid Prest

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1. The English Legal Profession, 1450-1550 J.H. Baker

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2. The Common Lawyers in England, c. 1558-1642 C. W. Brooks

42

3. The English Bar, 1550-1700 WilfridPrest

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4. The English Bar in the Georgian Era Daniel Duman

86

5. Hie English Civilians, 1500-1750 Brian P. Levack

108

6. The Legal Profession in Colonial North America Stephen Botein

129

7. The Advocates, the Law and the Nation in Early Modern Scotland Alexander Murdoch

147

8. Lawyers in Pre-revolutionary France Lenard R. Berlanstein

164

9. Lawyers and Litigation in Castile, 1500-1750 Richard L. Kagan

181

Notes on Contributors

205

Index

207

ABBREVIATIONS

AHR: American Historical Review AJLH: American Journal of Legal History Baker, Spelman’s Reports: J.H. Baker (ed.), The Reports of Sir John Spelman (2 vols., Selden Society, 1977-8), vol. 2 BIHR: Bulletin of the Institute of Historical Research B. L.: British Library Bodl.: Bodleian Library CLJ: Cambridge Law Journal CP: Public Record Office, Common Pleas series C. U.L.: Cambridge University Library De Laudibus Legum Angliae: Sir John Fortescue, De Laudibus Legum Angliae, ed. S.B. Chrimes (Cambridge, 1942) EHR: English Historical Review GIPB: R.J. Fletcher (ed.), The Pension Book of Gray’s Inn (2 vols., 1901-10) H.M.C.: Historical Manuscripts Commission (individual reports cited by short title) Holdsworth, History of English Law: Sir William Holdsworth, A His­ tory of English Law, 7th edn (13 vols., 1922-52) IND: Public Record Office, Index series ITR: F.A. Inderwick (ed.), A Calendar of the Inner Temple Records (5 vols., 1896-1901) Ives, ‘Reputation’: E.W. Ives, ‘The Reputation of the Common Lawyer in English Society, 1450-1550’, University ofBirmingham Historical Journal, vol. 7 (1959-60), pp. 130-61 KB: Public Record Office, King’s Bench series LIAdmR: W.P. Baildon (ed.), The Records of the Honourable Society of Lincoln’s Inn. Admissions from A.D. 1420 to A.D. 1893 (2 vols., 1896), vol. 1 LIBB: W.P. Baildon and R.F. Roxburgh (eds.), The Records of the Honourable Society of Lincoln’s Inn. The Black Books (5 vols., 1897-1968) Lie.: licenciado L.P.L.: Lambeth Palace Library LRH: J.H. Baker (ed.), Legal Records and the Historian (1978) MTAdmR: H.A.C.Sturgess (edf), Register of Admissions to the Honour-

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able Society of the Middle Temple, from the Fifteenth Century to the Year 1944 (3 vols., 1949) MTR: C.T. Martin (ed.), Minutes of Parliament of the Middle Temple (4 vols., 1904-5) P & P: Past and Present PROB: Public Record Office, Probate series P.C.C.: Prerogative Court of Canterbury (testamentary records now reclassified in Probate series above) P.R.O.: Public Record Office Prest, Inns of Court: Wilfrid R. Prest, The Inns of Court under Elizabeth I and the Early Stuarts, 1590-1640 (London and Totowa, NJ, 1972) R.O.: Record Office SP: Public Record Office, State Papers series TRHS: Transactions of the Royal Historical Society WMQ: William and Mary Quarterly YB: Year Book Note: all books cited here and below were published in London, unless otherwise indicated. Spelling and punctuation have been modernised, except for the titles of works in English.

LAWYERS IN EARLY MODERN EUROPE AND AMERICA

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INTRODUCTION

Lawyers seem to be a peculiarly Western phenomenon. Outside Western Europe and her colonial offshoots, specialist secular legal advisers and representatives were unknown until very recent times. Indeed Weber held the lawyers decisively responsible for those two institutions — capitalism and the ‘legal-rational’ modern state — which have most strikingly differentiated Western Europe from the rest of the world between the Renaissance and the present day.1 On the whole historians have shown little enthusiasm for exploring these large themes, either within or across national boundaries. Besides innate professional circumspection (or timidity), this failure reflects a more general lack of interest in the history of law and its institutions. For historiographical purposes lawyers have tended to be absorbed into an amorphous middle class, which lacks the exotic appeal or ideological significance often attached to the study of aristocrats and plebeians. If in class terms historians may have found lawyers too familiar to be interesting, their vocational concerns are apt to seem more arcane, forbiddingly technical or plain boring than those of clergymen, doctors, entrepreneurs and soldiers. Thus academic historians, with a few not­ able exceptions,2 have until recently left the law and its practitioners to lawyers and legal historians located in schools of law. (Just so, Pro­ fessor Kuhn reminds us, does the history of most arts and sciences tend to be relegated to their practitioners and teachers, while general historians confine their attention to aspects clearly impinging upon fire broader historical mainstream.)3 Legal historians, concerned primarily with tracing the evolution of the law as a body of substantive doctrines and rules, have hitherto paid little more than passing attention to its practitioners, except in bio­ graphies of eminent jurists and Whiggish accounts of professional insti­ tutions. Within the last decade, however, a number of younger scholars have taken up the systematic study of lawyers and legal professions in various parts of early modern Europe and America. This volume aims to present an overview of their recent work. While in most cases bearing the characteristic stamp of the social historian, it is also recognisably part of that wave of interest in the history of law which has gathered increasing momentum, both in history departments and law schools, since the mid-1970s. 11

12

Introduction

Seven of the nine chapters below were written specially for this book, while the other two have been adapted from unpublished papers. Readers should know that the slight numerical bias in favour of Eng­ land was not planned, but results from failure to locate contributors for projected chapters on Italy, the Netherlands and (more conjecturally) Russia.4 As it is, the degree of concentration on England is probably not an entirely misleading representation of the current state of schol­ arship, while the remaining chapters provide, if not a totally compre­ hensive basis for comparisons, at very least a series of compelling con­ trasts and parallels. The strongest initial impression is of wide diversity; in each society covered the lawyers were a large, heterogeneous group, ranging from a small elite of advocates to a fringe of obscure part-time practitioners of equally dubious qualifications and reputation. The detailed activities and organisation of the various grades of practitioners, their relation­ ship with each other, the rest of society and the state, varied widely over time and space. But some common features and tendencies do emerge, including a clear correlation between social exclusiveness and academic requirements for entry to legal practice, the broad appeal of the Roman lawyer model as a source of professional identity and status in both common and civil law jurisdictions, and a characteristic political caution or moderation, perhaps reflecting the lawyer’s somewhat am­ bivalent moral and social position. It may indeed be this last quality, in conjunction with their pervasive presence, argumentative skills and broad range of human contacts and experience, which particularly fitted lawyers for the role of agents of change in early modem societies. If the possibility of comparative insights is perhaps the ultimate justification for bringing together the work presented below, each chapter nevertheless focuses upon certain groups of legal practitioners in a specific time and place. Within the confines of a fairly tight word limit, contributors were free to develop their topics as they saw fit, while being encouraged in the interests of overall coherence to include a minimum core of basic information and common themes. The main differences in approach which have resulted are between the treat­ ment of lawyers as significant figures on a larger historical canvas, as against a concentration on their historical conditions and experience per se. While these are differences in emphasis rather than mutually exclusive alternatives in the present instance, each has its peculiar strengths and dangers. If historians of the legal profession, or indeed any human group, concentrate exclusively on its internal history, writing as it were from

Introduction

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the inside, they will very likely be confined to a limited range of ques­ tions and an equally restricted audience.5 On the other hand, historians who rush in to liberate the history of law from the constricting grasp of the lawyers, as religious history has been rescued from the theologians, run the opposite risk, of superficiality and error in the treatment of major questions, arising from ignorance of those very features which give the law and lawyers a claim to their own history.6 It is for the reader to judge how effectively contributors have managed to navigate between this historiographical Scylla and Charybdis. Besides providing a conspectus of current knowledge and research, this volume may also help to stimulate further work and new lines of investigation. The biographical studies of Baker, Brooks and Levack show how hitherto obscure legal personnel can be illuminated by information drawn from a wide range of archival sources; there is little doubt that similar strategies applied to other periods and places would yield equally rich results. As they also demonstrate, however, when part-time occupations were commonplace and vocational special­ isation not highly developed, there is often room for doubt about where precisely the line between lawyer and layman was (or should now be) drawn. Membership of professional organisations would today supply a straightforward criterion, but it is not at all clear how far those which existed during the period covered by this volume, with the possible ex­ ception of the London-based Society of Gentlemen Practisers, were in fact functional equivalents of their modern successors. Nevertheless, as the work of Berlanstein, Botein, Duman and Murdoch on the collective autonomy, cohesion and public image of eighteenth-century American, English, French and Scottish lawyers amply demonstrates, the history of the professions need not be tiqd exclusively to organisational or institutional preoccupations, and may well provide the most effective conceptual framework for the historical study of men of the law. There is certainly no lack of material to be worked over or of ques­ tions to be posed. The most serious current deficiency is our general ignorance about the interaction between lawyers and their clients. There is an urgent need for more work, along the lines of Kagan’s study, to discover exactly who used lawyers’ services in early modern times and for what sorts of purposes: were lawyers in fact retained largely by an elite clientele, or did they also serve peasants and urban artisans to any significant extent? Were they mere instruments of class rule, or also in some sense mediators between disparate social ranks and worlds? How well did they serve their clients? How and how much were

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14

Introduction

they paid in return? In following up such questions we may well need to call upon an­ thropologists as well as sociologists for assistance, paying no less atten­ tion to attitudes and perceptions than to more objective data, observing our subjects’ private and domestic lives as well as analysing their public transactions. The historical study of lawyers and the legal profession may thus turn out to have even broader bounds and larger possibilities than its cunent explorers are yet fully aware. For assisting the idea of this book to emerge from protracted incuba­ tion, I am most grateful to my friend and former pupil Christopher Brooks, as also to my friend and former examiner Eric Ives. The enthus­ iastic support of Christopher Helm and the expert counsel of Stanley Katz materially reduced the difficulties inherent in bringing together the work of nine scholars scattered over three continents. The final stages of that task were transferred from Adelaide to Princeton early in 1980; I gratefully acknowledge support, both intellectual and material, from the Shelby Cullom Davis Center for Historical Studies, Princeton University, towards finishing the job. Finally, besides my fellow contributors, I should like especially to thank Cedar, Richard and James for their patient forbearance and positive assistance.

W.R.P.

Notes 1. H.H. Gerth and C.W. Mills (eds.), From Max Weber: Essays in Sociology (New York, 1958), pp. 93-4, 216-18. Cf. Perry Anderson, Lineages of the Abso­ lute State (1974), pp. 420 et seq.; V.G. Kiernan, ‘Private Property in History’ in J. Goody, J. Thirsk and E.P. Thompson (eds.), Family and Inheritance (Cam­ bridge, 1976), p. 376. 2. Significant exceptions include, in chronological order, E.W. Ives, ‘Some Aspects of the Legal Profession in the Late Fifteenth and Early Sixteenth Cen­ turies’, unpublished PhD thesis, University of London, 1955; Robert Robson, The Attorney in Eighteenth Century England (Cambridge, 1959); Paul Lucas, ‘Black­ stone and the Reform of the Legal Profession’, EHR, vol. 77 (1962), pp. 456-96; Lauro Martines, Lawyers and Statecraft in Renaissance Florence (Princeton, 1968). 3. T.S. Kuhn, The Relations between History and History of Science’ in F. Gilbert and S.R. Graubard (eds.), Historical Studies Today (New York, 1972), pp. 179-80. 4. For which now see discussion in R.S. Wortman, The Development of A Russian Legal Consciousness (Chicago, 1976), Ch. 1, and W.E. Butler, ‘Foreign Impressions of Russian Law to 1800: Some Reflections’ in idem (ed.), Russian Law: History and Political Perspectives (Leyden, 1977), pp. 64-92.

Introduction 5. Cf. the comments of J.S. Auerbach, Unequal Justice: Lawyers and Social Change in Modem America (New York, 1976), pp. 11-12. 6. Cf. the comments of J.H. Langbein, in AJLH, vol. 18 (1974), pp. 90-4.

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1

THE ENGLISH LEGAL PROFESSION, 1450-1550 J.H. Baker

The legal profession was a significant element in late-medieval English society, both by reason of its intellectual contribution to the develop­ ment of England’s characteristic institutions and traditions and by reason of the opportunities which it provided for the gifted individual to rise and prosper. Given its importance, it has not yet received any­ thing like its fair share of attention from historians. Among the reasons for this neglect the most obvious are the dearth of internal profes­ sional records and the forbidding vastness of the public and private archives from which less accessible information may be pieced to­ gether. Work on the latter is beginning to show that lawyers at all levels left more traces in the records than has been supposed. With a combination of local and central records, such as wills and subsidy rolls, the accounts of civic, noble and ecclesiastical clients, and above all the records of courts, it would be possible to produce thumbnail sketches of thousands of lawyers in the late-medieval period and to place each man in a social category. The labour would be immense, but not technically difficult, given a list of names to work with and perhaps a computer to help with the sorting and indexing. Since that has not yet been done, it is possible here to attempt no more than a preliminary sketch of the profession, with a view to solving some of the initial difficulties inherent in producing the working list of names. The first difficulty for the historian lies in his understanding of the concept of a legal profession. That there were, by the fifteenth cen­ tury, a considerable number of men who earned their living from the law in one way or another is beyond contradiction. Contemporaries, indeed, were wont to think the supply excessive: I suppose that in all Christendom are not so many pleaders, attor­ neys and men of the law as be in England only, for if they were numbered all that belong to the courts of the Chancery, King’s Bench, Common Pleas, Exchequer, Receipt and Hell, and the bag­ bearers of the same, it should amount to a great multitude. And how all these live, and of whom, if it should be uttered and told it should not be believed.1 16

The English Legal Profession, 1450-1550

17

The problem is to reconstruct a complete picture of this multitude. Most pieces of research are limited by the classes of evidence upon which they rest, and concentrate on particular courts or particular kinds of lawyer. When we contemplate lawyers as a whole, we are bound to wonder whether these diverse men of law can properly be regarded as constituting a single profession. Some lived from the profits of public office, others from private practice; many combined both. Some were in the permanent employ of great magnates or religious houses, others grubbed for work of a more ad hoc character among lesser folk; many had mixed practices, serving high and low as occasion offered. Some specialised in advocacy and the intellectual functions associated with the advocate or ‘counsellor’, including skilled drafts­ manship, advice, and acting in arbitrations.2 Others kept to the more menial tasks associated with attorneyship, clerkship and auditorship. Some followed both callings at once, and may even have combined them with other occupations. This was no straightforward social or economic hierarchy. Some clerks amassed small fortunes, while mediocre counsellors might end their days in poverty and obscurity or quit the law for other pursuits. It is difficult even to define the classes in professional terms. The expressions ‘barrister’ and ‘solicitor’ made their appearance in our period, 3 but had still not by the end of it come to denote two separate branches as we know them; they were not titles which in themselves indicated a qualification for practice.4 Yet, if the whole number of lawyers and legal clerks lacked a comprehensive professional structure, there was one common factor which linked them together in their several stations. The unifying element was the great legal university situated in the western suburbs of London. From learned counsel to pettifogging clerks, most were associated in some way with the inns of court and chancery.5 Membership of an inn was probably conceived, by 1450, as being the clearest indicator of professional status and as a warrant for claiming the vague qualification ‘learned in the law’ which afforded protection against the stringent laws of maintenance.6 In 1450 this was still not an exclusive prerogative of the four inns of court,7 because a member of an inn of chancery could assert the same status as homo in lege terrae eruditus (a man learned in the law of the land), even when acting as an attorney.8 Although pleas justifying maintenance did not always expressly allege membership of an inn, it is inconceivable that anyone would lay claim to be learned in the laws of the land if he had not spent some time performing the exercises of learning in such a society. Our study of the legal profession as a whole must therefore, to

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The English Legal Profession, 1450-1550

a large extent, be part of the history of the inns of court and chancery. Nevertheless the subjects do not coincide, because membership of an inn would not in itself provide a sufficient definition of a professional lawyer. The reason is that the majority of members were not in any acceptable sense lawyers. The sons of gentlemen and even noblemen attended the inns for social purposes and in order to acquire a general education, without any intention of practising law.9 How, then, are we to distinguish the professional members of the inns from the rest? The best answer at present is that there was no precise distinction, but a scale of professional commitment related to the length of residence and the extent to which a member became involved in the academic dis­ cipline of his society. These factors were measured at two stages of membership by the degrees of barrister and reader. But here the records fail us, since records of these degrees are gravely defective in our period. For the inns of court there are no records of calls to the bar in this period, except for Lincoln’s Inn after 1518; while for the inns of chancery there are no records of barristers,10 and very little evidence relating to senior membership, throughout the period. It follows that, although the profession can only be understood in the context of the inns and the facilities they provided, any attempt to distinguish the professional members of the inns before their records near complete­ ness must be based on a study of what individuals were doing outside these societies. For this purpose we have divided the profession into six fairly distinct classes. The Six Classes of Common Lawyer Serjeants and Judges The most clearly identifiable and best documented branch of the English legal profession was the order or fraternity of seijeants-at-law. The serjeants formed the bar of the the Court of Common Pleas (or Common Bench), the principal common-law court in Westminster Hall, and had become an exclusive guild or brotherhood around the time of Edward II. There were usually fewer than ten in practice, excluding those who had been raised to the bench; and every ten years or so, when numbers had fallen through death and promotion, there would be a group call of six to eight new serjeants, chosen from the double readers in the inns of court. They were ‘created’ — a word reserved for degrees of dignity11 — with much ancient ceremony, the focal point of which was the new serjeant’s first ‘count’12 at the bar of the Common Pleas. These were the men whose arguments were re-

The English Legal Profession, 1450-1550

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ported in the year books, and who in that way were responsible for fashioning the common law. Their exclusive right of audience in their own court made them, according to Chief Justice Fortescue in the fifteenth century, the wealthiest advocates in the world.13 In the whole of our period only one hundred were created. They were the cream of the profession. They stood apart from their lesser colleagues not only by their social prestige and exclusiveness, which was represented out­ wardly by their colourful monkish habit and white linen coifs, but also by the custom which required them to leave their inns of court upon graduation. The reason for this rule was doubtless the same as that which forbade Chancery clerks to live with the other apprentices; Ser­ jeants, like the clerical masters in Chancery, were deemed to have passed beyond the communal life of students and teachers. By 1550 all or most of the seijeants belonged to one of the two seijeants’ inns (in Chancery Lane and Fleet Street respectively), both of which were in existence on a smaller scale in 1450; but in 1450 most seijeants and judges probably kept their own households in London or its suburbs. The serjeants’ inns differed from the others in that they had no edu­ cational functions and conferred Ao status on their members; they existed purely for social convenience^ though in course of time they became a venue for public transactions such as judicial conferences and chambers business.14 The seijeants maintained links with their old inns of court, to which they were expected to return for the readings in order to join in the discussions. The old seijeants of Lincoln’s Inn some­ times acted as governors. Only seijeants could be appointed judges of the Common Pleas and King’s Bench. This was another privilege they had enjoyed since the fourteenth century. Sixty of the hundred seijeants called between 1450 and 1550 became judges of the superior courts, one of them (Audley) being Lord Chancellor. The judicial element in the order of the coif was numerically stronger than the practising element, and the brotherhood between judges and seijeants enhanced the prestige of the order still further. Some of the seijeants who did not receive full-time appoint­ ments served as commissioners of assize, an office which could only be held by a member of the order. Just under half the seijeants created in the period also served the crown as king’s seijeants, an office to which they were appointed by patent at a small salary and which amounted to a general retainer on behalf of the crown without other­ wise restricting private practice. There were three or four king’s ser­ jeants at any one time, and they were the leaders of the English bar; most of them became judges in due course.

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The English Legal Profession, 1450-1550

In Tudor times the crown appointments of attorney-general and solicitor-general, already by the end of the fifteenth century appro­ priated to readers in court, began to be regarded as more important in practice than that of king’s serjeant, though they were not given tech­ nical precedence until well after our period.15 No one could have fore­ seen in 1550, when the rank of king’s counsel extraordinary had not been invented, that the rise of the crown law officers would be one of the main factors in the decline and eventual extinction of the seijeants. But already the law officers effectively shared with serjeants the claim to judicial appointments, because the expedient was adopted of making them serjeants immediately prior to appointment. This happened twice before 1550. In 1519 John Erneley of Gray’s Inn, the Attorney-General, was chosen in preference to all the seijeants to be Chief Justice of the Common Pleas; he was created serjeant a few days before his judicial patent was sealed, and was probably the first serjeant since the time of Edward II to have been created singly. The precedent was followed in 1546, when Richard Lyster, a former Solicitor-General who had re­ mained a bencher of the Middle Temple whilst serving as Chief Baron of the Exchequer, was translated to the King’s Bench.16 The bench of the Court of Exchequer had been dominated by clergy until Henry Vi’s reign, and therefore never became the exclusive prop­ erty of the seijeants. By 1450 the barons of the Exchequer were lay­ men, most of whom seem to have been trained up on the clerical side of the Exchequer. Some are known to have been members of inns of court, but it is hard to say whether they were all readers in the ordinary course before appointment. The chief barons, however, were either seijeants-at-law or full readers in court throughout the period. It was not until 1579 that a seijeant was appointed to the office of junior baron. The Court of Chancery remained a clerical preserve much longer than the Exchequer. Until the appointment of Wolsey in 1515, the chancellors were all clerks in orders having degrees in Civil or Canon law. The masters of the court were also clerical, until a few lay doctors were appointed after the Reformation. The inns of court did not begin to infiltrate the Chancery bench until the middle of Henry VIII’s reign. From 1529 to 1544 two common lawyers (More and Audley) held the great seal, and from 1534 until after 1550 laymen filled the office of master of the rolls. Judicial appointments outside Westminster Hall, such as the chan­ cellorship of the Duchy of Lancaster, recorderships of boroughs, stewardships of manors and leets, and membership of commissions of

The English Legal Profession, 1450-1550

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the peace and of gaol delivery, cannot be considered to represent separate branches of the profession. The acquisition of such appoint­ ments was of much significance to a rising advocate, and they might be heavy burdens; but they were of a part-time nature and did not pre­ clude private practice. They could, moreover, be held in plurality. In assessing the size of the several classes of lawyer, we should therefore reckon only the twelve or so judges of the three common-law courts and the twelve or so masters in Chancery as having permanent judicial appointments. There were no appellate judges above them, nor any­ thing akin to the full-time circuit judgeships of the present day.

Clerks and Officers of the Central Courts Next to the judges among the permanent legal officials were the prin­ cipal administrative officers who controlled the proceedings in the courts at Westminster. Tables of office-holders can be reconstructed with reasonable precision at the upper levels, but the secondaries and under-clerks in the various offices leave little trace in the records and are such shadowy figures that it is difficult even to estimate the size of the clerical staff belonging to particular judicial departments.17 In the King’s Bench the senior officers were the King’s Coroner and Attorney (or Clerk of the Crown), the Chief Clerk (or Prothonotary), the Clerk of the Papers, the Custos Brevium (who was also Clerk of the Warrants), and the thirteen filazers.18 In the Common Pleas the Custos Brevium claimed to be Chief Clerk, but there were in addition three prothonotaries; and the other principal officers were the four exigenters, the Chirographer, the Clerk of the Outlawries, the Clerk of the Juries, the Clerk of the Warrants, the Clerk of the Essoins, the Clerk of the Treasury (or of ‘Hell’), and the thirteen filazers. The Exchequer had more officers even than the Common Pleas, though most belonged to the revenue side and were not directly concerned with litigation. There was only one chief clerk on the plea side, the Clerk of the Pleas. But many of the revenue officials, from the Lord Treasurer of England down to the tellers and auditors, were men of the inns of court and chancery. The King’s Remembrancer and Lord Treasurer’s Remem­ brancer were invariably lawyers bred in the course of the Exchequer and frequently rose to be barons of the Exchequer. All the officials mentioned in this paragraph probably had under-clerks. The Chancery had a large complement of clerks beneath the masters, but they were members of the chancellor’s household and unlike the clerks of the other central courts were in 1450 invariably ordained clergy. Only the Clerk of the Crown seems throughout our period to

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have been a layman. Laymen infiltrated the Chancery offices before they reached the Chancery bench. In 1468 Piers Pekham, gentleman, is described in a pardon roll as one of the clerks of the Chancery and also a mercer of London; and another gentleman clerk of the Chancery was pardoned in 1484.19 Several Chancery clerks from this period were admitted to Lincoln’s Inn, which suggests (but by no means proves) that they were laymen.20 The plea rolls contain numerous claims by laymen to privilege on the grounds that they were servants of Chancery clerks, but the claims were usually disputed and often seemingly tenuous. These were the major courts. Other central and local courts had their own officers; usually one clerk sufficed. Each county had a clerk of the peace, and each assize circuit had a clerk of assize; both offices were vital to the administration of criminal justice. Clerks of the peace were often clerks of the central courts, and much of the clerical work of the circuits seems to have been done by the prothonotaries. Since the courts at Westminster sat only about one hundred days in the year, these vacation employments did not interfere with the greater offices. One cannot confidently assume that any of these local offices were full-time, and therefore they ought not to be counted when estimating the size of this class of the profession. Very few officials received a salary, and their income was derived from fees they were entitled to charge for each item of business trans­ acted. Approved scales of fees show that even in the two Benches most fees amounted only to a few pence or shillings,21 but it is obvious that for some officers the total amounted to a respectable or even large income. Many officers augmented their income by practising as attorneys in the central courts, and when they did so they were usually among the busiest attorneys. Some acquired outside offices: thus Edward Cheseman (d. 1510), a filazer of the King’s Bench, was also Cofferer of the Household to Henry VII.22 Several filazers acted as clerks of the peace. Some were even members of guilds,23 but this may mean no more than that they acted as clerks or legal advisers to the companies. Robert Maycote (d. 1533) of Lincoln’s Inn, the first known Clerk of the Papers in the King’s Bench, left a collection of books on surgery to his son Richard, an attorney, which may be evi­ dence that his Kent practice took in surgical patients as well.24 The senior clerks were usually members of the inns of court, but more often than not gained admission by virtue of their office, having spent their previous career in an inn of chancery. Such a career might well begin in the office before admission to an inn at all. John Lucas

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(d. 1525), who rose to be Secondary of the King’s Bench, noted in an autobiographical memorandum that he went to his ‘master’ in the King’s Bench on 6 November 1492 but was not admitted to New Inn until 1 August 1501; he was specially admitted to Lincoln’s Inn in 1508, after serving five years as a filazer, at the behest of John Roper, then reader of the Inn and Chief Clerk of the court.25 The majority of clerks belonged to the lower economic level of the legal profession, but promotion within a department was the usual way of filling vacancies and therefore men of ability (like Lucas) could hope for advancement. The judges felt so strongly about the need for training that in 1465 they rejected the king’s nominee for the office of Clerk of the Crown on the ground that he had not been brought up in the Crown Office; after full debate, the king approved the appointment of the Under­ Clerk of the Crown instead.26 Those fortunate enough to ascend to the higher clerkships prospered noticeably. The way in which the Roper family fortunes were founded on the chief clerkship of the King’s Bench is well known. The first founder of those fortunes, John Roper (d. 1525), possessed more movable wealth than any other lawyer in the land, and his son married the Lord Chancellor’s daughter.27 Both he and his predecessor, Reynold Sonde (d. 1491), were armigerous.28 His colleagues on the crown side, Henry Harman (d. 1502) and William Fennour (d. 1552), also bore arms.29 The like status was attained by the chief officers in the other courts. William Porter (d. 1521), Clerk of the Crown in Chancery, was armigerous.30 Robert Blagge of the Inner Temple was probably granted arms while he was still King’s Remem­ brancer; and his Secondary, John Copwode (owner of Staple Inn), also received a grant of arms in Henry VUI’s reign.31 Even some of the filazers and lesser clerks achieved armigerous status.32 The senior clerks were men of moment within the profession as well as outside it. Judges consulted them on points of practice and pleading, and future leaders of the bar and judges studied under them; for example, Mr Prothonotary Jenour (d. 1542) was pupil-master to four chief justices in the time of Henry VIII.33 It will have been noted from this brief survey that the superior common-law courts at Westminster alone had over fifty senior legal officials, and if each of them had on average one or two under-clerks there must have been well over one hundred men earning a living from the clerical side of those courts. There must have been at least that num­ ber in secretarial and administrative posts in the central bureaucracy, and possibly as many again, though not necessarily full-time, in the pro­ vinces. One estimate has put the size of this officialdom, in the century

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The English Legal Profession, 1450-1550

or so before the Civil War, at over a thousand persons.34 This larger group cannot strictly be reckoned part of the legal profession, but it is emerging that many of them were members of the inns.

Attorneys The largest single group of lawyers were the attorneys. Every formal step in litigation, unless the litigant was personally present in court, had to be authorised by a duly appointed attorney; and long before 1450 the exercise of this function had given rise to the professional attorney. Attorneys also acted as general practitioners, retaining counsel and giving it. Since the thirteenth century their appointment had been supervised by the judges, and in 1292 the judges had been directed to limit the number to 140.3s The judges were supposed to examine candi­ dates for admission, who were then sworn in and their names were added to the ‘roll’. This process could be reversed, so that an attorney guilty of gross misconduct could be put from the roll and physically ‘cast over the bar’.36 No rolls of admission have survived for our period; but the names of the active attorneys can be ascertained from the mem­ oranda of warrants of attorney enrolled by the Clerks of the Warrants at the end of the plea rolls for each term (KB 27 and CP 40), and, where they are available, from the files of warrants.37 For the purposes of this chapter, the writer sampled the rolls of the three common-law courts for the four terms of 1480. The warrants of attorney showed that about 130 attorneys were active in the Common Pleas, 100 in the King’s Bench, and 30 in the Exchequer. The Ex­ chequer attorneys, with very few exceptions, kept themselves ex­ clusively to that court. About half the King’s Bench attorneys also practised in the Common Pleas, and about thirty of the attorneys in those courts also occupied major clerical offices in one of them. The total number of attorneys active in 1480, besides officers of the courts, is therefore around 180. It is clear, however, that the number of attor­ neys alive in 1480 exceeded that figure. Sampling a few rolls before and after 1480 suggests that there may have been at least 30 attorneys still in practice but by chance not appearing in the warrants for that year. Others may have been following a purely country practice, employ­ ing London agents as in later times, or they may have retired from active practice as attorneys either on grounds of age or by reason of other employment. These latter categories escape notice in the records and are therefore virtually beyond investigation. There is reason to think that the number of attorneys in 1550 was still much the same as in 1480, although a massive increase was to begin soon afterwards.38

The English Legal Profession, 1450-1550

25

The number of attorneys active in the central courts in 1480 does not greatly exceed the ideal maximum fixed in 1292, and yet laymen frequently complained of the number of attorneys in some parts of the country. Norfolk and Suffolk were particularly well provided for, as were the south-western counties, but the higher proportion of attor­ neys in those parts probably reflects the greater litigiousness of the in­ habitants.39 Contemporaries were more inclined to attribute the volume of litigation in these regions to the excess of attorneys. A bill presented through the Commons in 1455 complained that the number of attorneys in Norfolk and Suffolk had risen from six or eight to 24 and more, the most part of them not having any other living but only their winning by their said attorneyship, and the most part also of them not being of sufficient cunning [i.e. learning] to be any attorney; which go to every fair, market and other places where congregation of people is, and stir, procure, move and excite the people to take untrue suits, foreign suits, and suits for light trespasses, light of­ fences and small sums of debt, the actions of whom be triable and determinable in court baron and also vexed their clients with actions for fees before such suits were concluded. The Commons prayed that the number of attorneys in those counties should be fixed at six for Norfolk, six for Suffolk, and two for the city of Norwich, and that appointments beyond that number should be void. The king assented, ‘if it be thought to the judges reason­ able’, but the judges probably did not approve and the bill did not be­ come law.40 The 1480 sample included at least nineteen Norfolk attor­ neys and twelve Suffolk attorneys, which suggests that even the two dozen complained of in 1455 had been surpassed. And many of them were indeed men of small account, though we can no longer assess their ethical standards. As members of inns they would have claimed the title ‘gentleman’, but we may wonder how many of them could have main­ tained the claim on grounds of birth or substance or would have had any living apart from their attorneyship. One we find described in a bill of privilege the year before as “William Crowche of Wetherden, Efp Suffolk, husbandman, attorney of tire Common Bench’.41 At the other end of the scale, however, we must also notice among the attorneys te--'3William Eyre (d. 1509), a country gentleman and Treasurer of the A^Inner Temple, depicted on his brass at Great Cressingham, Norfolk, in ’j long gown and described on the inscription as legis peritus.

ft

148335

26

The English Legal Profession, 1450-1550

Eyre’s example reminds us that no rigid separation existed be­ tween the classes of practitioner. Another attorney who became treas­ urer of an inn was Walter Roudon of Lincoln’s Inn. Two Inner Temple benchers who began as attorneys rose to become judges: John Salter (d. 1513), a Welsh judge, and Humfrey Coningsby (d. 1535), a King’s Bench judge. Some of these may have gained entry to their inns of court by virtue of their clerical appointments — Roudon was a clerk of the parcels in the Exchequer, Salter a clerk of the peace, and Coningsby a prothonotary of the Common Pleas — but Salter delivered a reading, Coningsby (if he did not read) certainly participated in learning exer­ cises as a bencher, and Roudon is known to have been called to the bar, so they may all be said to have qualified themselves in the customary manner for the upper reaches of the profession. The majority of attor­ neys, however, held no clerical offices and remained in the inns of chancery. About a third of the attorneys in the 1480 sample can be assigned to particular inns of court and chancery; and, given the poor survival-rate of membership records, this is quite consistent with their having all been members. Perhaps the usual condition for an attorney in this period, as in later times, was that of ‘ancient’ in one of the inns of chancery. There are few lists of ancients in this period, and so this hypothesis cannot be proved; but we know that several attorneys served as principals of their inns in the second half of the fifteenth cen­ tury, and the rest, by remaining in residence, must presumably have become governing members by reason of seniority. Although the inns of chancery were regarded as inferior to the inns of court, both in size and in terms of the quality of the members and the learning exercises, members were almost invariably described in records as gentlemen; and, as we have suggested, membership was held (at least by some) to con­ fer that professional status as ‘learned in the law’ which was later appropriated solely to inns of court men. Pleas in bar of maintenance sometimes refer to the retainer of a named person, known to have been an attorney, as a person in lege terrae eruditusf2 and we have seen a record of 1522 in which an attorney described himself as eruditus in lege domini Regis communif3 Some of these men, however, were members of inns of court; the attorneys were not yet excluded from the greater inns. Besides the two hundred or so Westminster attorneys, whose iden­ tities may be ascertained with reasonable precision, were an indeter­ minate number of lesser ‘practitioners’ whom we prefer to exclude from the class of professional attorneys until more is known about them. Attorneys in local courts were usually not Westminster attorneys,

The English Legal Profession, 1450-1550

27

but it is possible that they were not lawyers at all — that is, not mem­ bers of the inns of court or chancery. For a similar reason, we should exclude courtholders, scriveners and notaries. The addition ‘court­ holder’ is sometimes found in records, but seems not to have been applied to men recognisable as lawyers; a lawyer might indeed hold many courts as steward, but would prefer the title ‘gentleman’.44 Notaries had no place in the English legal system, though they had employment in ecclesiastical and mercantile affairs and some may even have belonged to inns.45 Scriveners, or professional writers, drew contracts and conveyances and therefore must not be overlooked in a study of the history of solicitors; but drawing documents was not a peculiarly legal role and so even the most ambitious scrivener ought not to be classed as a lawyer.44 Little or no work has been done on these lowly men of affairs; until it is, we can do no more than guess at their social and intellectual characteristics.

Apprentices The most difficult class to define is that of the apprentices-at-law. The word ‘apprentice’ is usually in other contexts suggestive of student status, but in the legal profession it was used for members of the upper branch who were already thoroughly learned: that is, for fullyfledged advocates below the degree of serjeant. Fortescue, for in­ stance, writing around 1470, divided English advocates into only two classes, seijeants and apprentices.47 The year books sometimes report the arguments of such counsel in the Exchequer Chamber, King’s Bench and Chancery, and upon adjourned assizes, and if they add any description to the surname it is invariably that of ‘apprentice’.44 Apprentice was not, however, a degree to which graduands were ex­ pressly called by the king or by the inns of court. It is therefore not immediately apparent whether contemporaries used the term to define a qualification for practice at the bar or merely to describe those who so practised. Some seventeenth-century writers anachronistically equated apprentices with barristers. Coke, more vaguely but also more historically, observed that apprentices-at-law were described in pleading as ‘homines consiliarii et in lege periti’ (counsellors and men learned in the law),49 but we have seen that the like description was used even for attorney members of the inns of chancery: ‘learned in the law’ was the genus comprising apprentices as one of its species. Sir Henry Spelman compared the degree of barrister with the university degree of bachelor, apprentice with that of master, and seijeant with that of doctor;50 and, although the equivalence might have been disputable,51

28

The English Legal Profession, 1450-1550

the hierarchy seems correct. Most seventeenth-century writers treated the title ‘apprentice’ as denoting a readership in the inns of court. The office of reader was only of internal significance in the inns, but it carried with it a public status for which the other title was more appro­ priate.52 Many of the apprentices so named in the year books are known to have been readers, and the rest were of such standing that they were probably readers in the inns for which no records survive. During the sixteenth century, rights of audience seem to have been extended by reference to the lesser degree of utter-barrister, and in a proclamation of 1547 it was asserted to have been always the practice to admit utter-barristers ‘and other students of the four houses of court’ as advocates in the royal courts. It is possible, therefore, that even before the end of our period the vagueness of the term ‘apprentice’ had given the judges a wide discretion in deciding whom to receive as ad­ vocates. Yet in practice audience in the superior courts, save perhaps for routine practice motions, appears from the evidence to have been con­ fined to the more senior practitioners. An earlier proclamation, of 1546, gave only readers the right of audience, with power for a com­ mittee to select others.53 The earliest piece of evidence so far dis­ covered is a list of ‘the pleaders or apprentices of the king’s courts’ drawn up in 1518 for Cardinal Wolsey.54 There were 37 apprentices ‘supposed now to be present at this term’ and 12 ‘supposed now to be absent from this term’, thus giving a total bar of about fifty. All but five of the men listed as apprentices were readers in court. Three of the five (John Baker, John Pakyngton and Richard Wye) had recently been elected benchers of the Inner Temple before reading; another (Francis Mountford) read in 1519 and his name appears to have been added to the original list. Only one name, that of Edmund Knightley (who did not read until 1523), is difficult to account for; but he may have been another bencher elected prior to reading. The list shows very clearly that in 1518 the practising bar, the apprentices of the king’s courts, were simply the benchers of the inns of court. Barristers and others were not included. This conclusion provides a convenient basis for definition and analysis, but it so happens that almost half the elections of readers in the period 1450 to 1550 are not recorded.55 The records of elec­ tions begin as follows: Lincoln’s Inn in 1465, Middle Temple in 1502, Inner Temple in 1506, Gray’s Inn in 1514. The identities of most Gray’s Inn readers since 1435 have been discovered from other sources, and the same may be done for the Inner Temple from the 1480s and for the Middle Temple from the 1490s. If the missing names from

The English Legal Profession, 1450-1550

29

the fifteenth century could be found, they would almost certainly be names already well known from other evidence but which cannot at present be linked with particular inns. All those we know of were established practitioners, great officers of state, or major office-holders at Westminster. Of 188 readers in the four inns of court between 1500 and 1540, one-quarter became seijeants-at-law, and about the same proportion became judges (including barons of the Exchequer), while at least another quarter held major offices in law or government. Most served as justices of the peace in their home counties..Sixteen per cent of the group became knights, more than half by virtue of judicial ap­ pointments. The group includes statesmen such as Dudley, More, Audley and Rich; writers such as Fitzherbert, More and the chronicler Hall; and law reporters such as Spelman, Yorke and Pollard.

Utter-barristers*6 For several centuries now barristers-at-law57 have formed a distinct branch of the English legal profession, but there are two reasons why they cannot be so regarded in the period 1450 to 1550. There are no recorded calls to the bar in this period except for Lincoln’s Inn, and then only from 1518. Call to the bar occurred during a moot and in­ volved no more than calling upon a student who had served his time as a mootman or inner-barrister to perform the part of an utter-barrister at the moot. It was a commencement, in the academic sense. But com­ mencement in the common law was only slowly becoming a gradua­ tion, because the position of barrister in an inn was not at first a public degree.58 Barristers were certainly professed lawyers, in the sense that they had taken part in the requisite learning exercises for the pre­ scribed length of time, which in Lincoln’s Inn was evidently not less than five years and on average about six.59 Moreover, call to the bar was an essential prerequisite of call to the bench, for which further learning exercises were required, including (usually) a readership at one of the inns of chancery.60 The average standing of readers on election was 17.6 years from admission in Lincoln’s Inn and 16.5 years in the Middle Temple,61 whence it seems that election to read came after about ten years as an utter-barrister. It cannot be assumed, how­ ever, that all barristers stayed on the ladder of promotion by remaining in residence for this period. We have noted that they were not re­ garded as full advocates, or apprentices, until they became benchers. For about ten years, therefore, they had to support themselves by soliciting causes, or undertaking non-contentious work, or by acquiring an office. Some who settled for careers other than advocacy obtained

30

The English Legal Profession, 1450-1550

exemption from reading. Some who were in a position to do so may have returned to the life of country gentlemen. Of the 89 barristers called by Lincoln’s Inn between 1518 and 1550, only 35 became benchers, of whom one in five became seijeants.62 The majority did not appear again in the records of the Inn and were not practitioners of any note at Westminster. For these, as for the non-practising barrister of today, call to the bar was a mark of intellectual attainment and of gentle (or professional) status, but not an occupational description. Solicitors and Accountants The least established members of the legal profession were those who performed the miscellaneous functions associated with the term ‘sol­ icitor’. In strictness, soliciting applied only to lawsuits, and meant the prosecution of causes in a court where the ‘solicitor’ was not an officer or attorney. But men who ran such errands usually had the other clerical skills needed by a general adviser. A job description compiled by a Gray’s Inn solicitor in the 1520s listed among his capabilities the writing of common-law entries, court-keeping, auditing, and acting as bailiff, receiver, steward of a household, clerk of the kitchen, clerk of works, comptroller and paymaster, all of which he had done under his father as servant to the Duchess of Norfolk.63 Persons possessing such skills were likely, in the words of this solicitor, to have ‘had the speculative’ (learned the theory) in one of the inns of court or chan­ cery. But how far these practitioners should be counted as members of the legal profession must be a rather arbitrary matter. An illustration of the difficulty is provided by the vocation of an ‘auditor’, which corres­ ponds with that of an accountant today. Accountancy may require some legal training, but it is not a legal exercise as such. In our period many auditors were also legal practitioners, and perhaps most were members of inns. Walter Gorphyn of Clifford’s Inn was auditor to the Duke of Buckingham in 1484 and had an appointment in the office of chancellor of the Exchequer.64 John Knyght (d. 1496), of Holborn (doubtless one of the inns), had permanent retainers as an auditor with the Dukes of Norfolk and Buckingham, the Earls of Nottingham and Derby, Lord Dacre, Lord Fitzwaren, Lord Strange and the Prior of Lewes; he bequeathed to his son-in-law John Maxey, of Furnival’s Inn, all his books ‘that belong to an auditor’.65 William Vowell, a bencher of the Middle Temple, was auditor to the Dean and Chapter of Wells and the Prior of Bridgewater.66 Guthlac Overton (d. 1537), of Lincoln’s Inn, was auditor to the Duchy of Cornwall and the Prior of St John’s; in an interesting Chancery suit he claimed solicitor’s fees and

The English Legal Profession, 1450-1550

31

also his expenses in teaching the defendant’s nephew ‘in the faculty of auditorship’.67 Not only were such men members of the inns, some­ times even quite senior members, but their profession was on the fringes of the law and is certainly one of the lineal ancestors of the present solicitors’ profession as well as the present profession of ac­ countancy. It is not at all improbable that there was a greater over­ lap between this class and the utter-barristers than between this class and the attorneys. Even in later times, utter-barristers were expected to fill in the time before election to the bench by practising as solici­ tors.68 The elusiveness, for the historian, of the practitioners in this category is perhaps the greatest obstacle to producing a numerical analysis of the legal profession in the late-medieval and Tudor periods. The Inns of Court and Chancery

From the foregoing it may be calculated that the active practising mem­ bership of the inns at any one time in our period must have numbered at least four hundred: fifty benchers, one hundred or so continuing barristers, fifty senior legal officials, and two hundred attorneys. Most of these would have had servants and clerks, some of whom were at ‘clerks’ commons’ in the inns or even members of higher standing. To this number must be added the inner-barristers and other students, including the many who did not intend to follow legal careers. Ob­ viously the figure of four hundred falls far short of the total mem­ bership, and it is to the missing larger figure that we now turn. Fortescue, at the beginning of our period, reckoned at least two hundred men to each of the four inns of court, and at least one hun­ dred each to the ten or so inns of chancery;69 though he added that they did not always gather in them at the same time.’’0 His figures would give a total membership of 1,800, slightly larger than the resi­ dent membership of either university at that period.71 Fortescue was not, however, speaking of the numbers in residence but of the names on the books. Thus, Lincoln’s Inn had 245 names on the books in 1455, but they cannot all have lived in the inn because even in 1574 there were only 92 sets of chambers for 160 men.72 Furnival’s Inn had 139 names on its pension roll in 1451, but never more than 80 in residence throughout our period.73 Few nominal rolls have survived, but the inns used to possess records extending back many years. In 1607 Gray’s Inn produced an enormous list of over 2,000 members, which must have represented over thirty years’ admissions and greatly

32

The English Legal Profession, 1450-1550

exceeded the number resident in chambers.74 Even in our period we find actions being brought in the Common Pleas to recover dues against lists of members stretching back over two or three decades. In the case of Fumival’s Inn, over 190 names occur in such actions between 1461 and 1500, while in 1523 the Inn sued 101 members in one action. These records constitute the principal source for reconstructing the early membership of the inns, and they are still being studied. They confirm that Fortescue’s figures are distinctly on the low side for total membership. The resident membership, on the other hand, is hardly likely to have exceeded the 1,100 reckoned as possessing places in chambers in 1574.75 The available scraps of evidence suggest that the inns of court and chancery were slightly smaller than the University of Cambridge, with perhaps 120 as the average size of an inn of court, and 60 for an inn of chancery, at any one time. Obviously these figures could be exceeded in particular cases. Fumival’s Inn, we have seen, went up to 80; but it may have been larger than average. The Inner Temple in 1521 is said to have turned out 160 members to accom­ pany the new serjeants to Westminster;76 but that also seems an un­ usually high figure. If these figures were representative of the inns of court and chancery, the total would have been around 1,400; but it seems inconveivable that 300 places in chambers could have been lost before 1574, during a period of expansion and rebuilding. Either there were more people to each set of chambers before Elizabethan times or we must adhere to about two-thirds of Fortescue’s figures as the best estimate for the period 1450 to 1550. It is rather easier to estimate the total admissions than the number of residents at any one time. For Lincoln’s Inn we have a continuous and nearly complete record of admissions throughout our period; and comparison with the other inns in the sixteenth century shows a sim­ ilar pattern. About twelve to fifteen admissions a year was usual in all the inns except Gray’s Inn, which after 1530 was admitting over twenty a year. The total inns of court admissions between 1450 and 1550 probably stood somewhere between 5,000 and 6,000. The total for the inns of chancery may well have been higher, since the length of stay for most students was probably shorter, but we have no definite re­ cords.77 Even if we were to assume a figure of the same order, say 5,000, we have no sure way of guessing what proportion of those 5,000 went on to inns of court. In estimating the total number of persons, the figures may also be inflated by migrations, which the Common Pleas records suggest were not uncommon. Even so, it is clear that between 6,000 and 10,000 men at least went through the inns of court and

■

The English Legal Profession, 1450-1550

33

chancery in our period, of whom probably less than one-third followed legal careers.78 If we take Lincoln’s Inn from 1450 to 1500, we find that of 576 admissions as many as 53 per cent of the names make no further appearance in the Inn’s records; only 10 per cent became appren­ tices at law (that is, benchers), and about the same proportion were attorneys or court officials, so that only one in five are clearly iden­ tifiable as professional lawyers. Of the scores of young men joining the inns of court and chancery every year, therefore, only a few can ser­ iously have contemplated legal careers. The majority were sons of the gentry, very often eldest sons, who returned to the country after their sojourn in London. The Common Pleas records show this to have been as true of the fifteenth-century inns of chancery as of the inns of court. Some of these nobilium filii, as Fortescue termed them, may have felt a calling towards the law, and some indeed reached superior positions. Most, however, must have gone there to mix with their peers and to acquire a grounding in law, general knowledge and manners to fit them for life. Some bought exemption from the learning exercises; others followed as best they could without intending to proceed further. The less well-born student must have been more likely to take the exer­ cises seriously in the hope of professional success. For all comers, how­ ever, the system helped the young to discover their aptitudes. The exercises were tough and sorted out the able from the average intellects as effectively as any modern examination. The student’s prowess in hall and library doubtless made clear to him and to his contemporaries whether he was suited to the law. A third important factor, besides aptitude and motivation, was financial support. The average age on admission to an inn of court seems to have been 20 or 21 ,19 and so if prior attendance at an inn of chancery was usual80 the student would have gone to the latter at 17 or 18. Without long-term maintenance no progress could be made. Fortescue said that only the sons of gentry could afford the inns of court, because an allowance of at least £13 6s 8d a year would be need­ ed.81 Some had more than that. Serjeant Constable in 1501 provided for his son to attend Cambridge at 15, and at 18 to go to an inn of chancery for three years with £25 a year.82 Serjeant Caryll, however, in 1523 left his son £10 a year to study in the Inner Temple, saying he knew it would suffice ‘if he live and use himself well and honestly and wisely like a learner and student’;83 the son became Attorney of the Duchy, and a bencher of the Inn. Caryll’s estimate seems to have been widely accepted,84 but some had to make do with still less. Anthony

f [

t

i

34

The English Legal Profession, 1450-1550

Fitzherbert’s mother left him only five marks a year to keep him at an inn of court,85 though he may have had other sources of income. Richard Wye, a bencher of the Inner Temple, had been sent to the Inn with only six marks a year under his father’s will of 1504.86 Even small sums such as these would have put the inns beyond the reach of the majority of the population. But the inns were not exclusive to the gentry and nobility. Although the title of gentleman was bestowed on all entrants to the inns, and therefore confuses social origins for the historian, it is known that yeomen could gain admission. Thus Thomas Underhill, yeoman, went from his inn of chancery to Lincoln’s Inn on becoming Clerk of the Juries in 1474; and either he or his son was armigerous.87 Luke Langland, formerly of Clifford’s Inn, yeoman, was admitted to the Inner Temple in 1510 as a servant of the new Earl of Wiltshire.88 Many names in the records suggest an obscure back­ ground. Some found they could not manage to live at all. One Leonard Perpoint was expelled from the Inner Temple in 1547 because ‘he lacketh exhibition and is not able to pay his dues’; but he was a mem­ ber of Furnival’s Inn when he died in 1566.89 Such drastic action was probably unusual. Many were outlawed (or at least put in exigent) for non-payment of dues, but there are reasons for doubting the effec­ tiveness of such action. The inns appear rather to have shown consider­ able forbearance with respect to debts; so that, although no evidence has come to light of endowed exhibitions as in Oxford and Cambridge, it is possible that communal charity enabled talent to prevail over ad­ versity. An express instance occurs in the Black Books in 1482, when William Lancaster, a member of six years’ standing, was pardoned various debts on account of poverty.90 The proportion of poor stu­ dents making careers in the law is difficult to estimate, but Dr Ives has shown that of the 53 serjeants called between 1463 and 1510 only half came from a social background of any consequence, and that all the seijeants called in 1486 were of obscure origin.91

The Place of the Inns of Court and Chancery The inns of court and chancery had a deeper influence on English society and culture than is, even now, generally acknowledged by his­ torians of this period. They were, in Fortescue’s words, a studium pub­ licum having some practical advantages over the universities by virtue of their proximity both to the law courts and to the nation’s capital city. Perhaps as many as one-third of the gentry of England passed through them, something which can by no means be confidently asserted of the universities in this period.

The English Legal Profession, 1450-1550

35

The inns contributed much to the development of the common law, by exploring doctrine ahead of Westminster Hall,92 and by training a small cadre of advocates to a high level of expertise. But they also helped in a broader way to form the character of English society. They were, already by 1450, the third university of England, a university which may have had more influence on the gentry than Oxford or Cam­ bridge. Here the future statesmen, members of parliament, sheriffs, country magistrates, and official classes, joined together in work and play. They learned the names which would matter to them, dined and prayed together, displayed their wealth or their talents (whichever was more conspicuous), talked of law and much else, drank, diced and misbehaved. The experience coloured one’s whole life: well might Justice Shallow’s mind dwell in his closing years on the days he had spent in Clement’s Inn. If English society between 1450 and 1550 pos­ sessed any common characteristics, a community of attitudes and aspir­ ations, it was in no small measure the inns of court and chancery which (almost without design) brought it about. And the chief representatives of the inns were their graduates and governors, the members of the legal profession. Small wonder if this profession embodied the opinions and feelings of the English gentry, who loved to chase in the courts as much as they loved to chase in the field, whose very lives seem to have been mapped out in parchment and wax. Erasmus was a poor judge of the qualities of the common law, but he perceived that those who succeeded in it were highly regarded: ‘there is no better to way to eminence [in England], for the nobility are mostly recruited from the law’.93

Notes 1. W. Caxton, Game and Playe of the Chesse (1474) [ 1883 reprint], p. 95 (modernised). This was an English version of the book by J. de Cessolis. ‘Hell’ was a record repository in Westminster Hall. It was not a large department but is doubtless mentioned for literary effect. 2. For the distinct character of the counselling function, sec J.H. Baker, ■Counsellors and Barristers’ (1969), Cambridge Law Journal, p. 205. 3. J.H. Baker, Manual of Law French (London, 1979), pp. 57, 186, and the texts cited there. 4. The origins of the division between barristers and solicitors are explored in J.H. Baker, ‘Solicitors and the Law of Maintenance 1590-1640’ (1973), Cambridge Law Journal, p. 56. 5. From this statement (and from the present study) must be excepted the lawyers who practised in and presided over the ecclesiastical and admiralty courts, whose focal point was the university. The English civilians and canonists have not received much attention in our period, but the origins of Doctors’ Commons have now been traced to the late fifteenth century: see G.D. Squibb,Doctors'

36

The English Legal Profession, 1450-1550

Commons (Oxford, 1977). 6. For the justification of maintenance (the wrong of maintaining or supporting litigants), by reason of professional status, sec Baker, ‘Counsellors and Barristers’, pp. 215-19; (dem, ‘Solicitors and the Law of Maintenance’, pp. 66 ff. 7. The classic precedent is the undated entry in W. Rastell, A Collection of Entrees (London, 1566), fo. 396, pl. 16, where a defendant justified maintenance as ‘homo consiliarius de et in lege eruditus’ and explained that he was one of the fellows of Lincoln’s Inn: see Baker, ‘Counsellors and Barristers’, p. 216. See also Forster v. Alfray (1454), CP 40/774, m. 313, where the defendant pleaded that he was ‘de hospicio vocato Greys In et homo in lege terre eruditus’. 8. There are no express decisions, any more than for the inns of court, but three precedents have been found from the 1450s. In Mitchell v. Cloutesham (1453), CP 40/771, m. 114, the defendant pleaded that he had been ‘commorans et conversans in quodam hospicio vocato le Stronde in com. Midd. per diversos et plures annos et dies ad discendum legem terre regni Anglie et sic [note the consequential implication] dicit quod ipse . .. fuit homo in lege terre eruditus*. Less detailed pleas are found in Anon. (1457), in Rastell, Entrees, fo. 396, pl. 17 (‘fuit homo in lege terre eruditus comitive novi hospitii’ and acted as an attorney); Cion v. Kellowe, attorney C.P. (1457), CP 40/786, m. 403 (‘fuit homo in lege terre eruditus et de hospicio de Stapull Inne’ and tetained as counsel). See also Dynham v. Gylbert (1478), CP 40/866, m. 158 (says ‘erudivit legem terre Anglie’ in St Dunstan’s parish (i.e. Clifford’s Inn) and ‘fuit et adhuc existit sufficienter eruditus in lege Anglic ad ligeos domini Regis in materiis suis prosequentes et defendentes consulendos’). 9. See pp. 30, 33, above. 10. The degree existed in these inns, though it never became a public degree. The statutes of Clifford’s Inn (Inner Temple, Add. MS 189) mention both innerbarristers and utter-barristers around 1500; for this distinction, sec p. 29, above. 11. The serjeant’s writ, ordering him to prepare for the creation, used the phrase ‘statum et gradum servientis ad legem’. 12. The oral recitation, in law French, of the plaintiffs declaration (opening pleading) in a ‘real’ action brought to recover specific property. In earlier times serjeants had been called ‘counters’ (narratores in Latin). 13. De Laudibus Legum Anglie, p. 124, lines 14-15. , 14. ‘The Serjeants’ Inns’ in Baker,Spelman’s Reports,introduction), pp. 135-7. 15. After 1623 the attorney-and solicitor-general had precedence before all but the two senior king’s serjeants, and after 1813 before the entire bar. The changes were effected by royal warrant. For a list of office-holders under Henry VII and Henry VIII see Baker, Spelman's Reports, pp. 390-2. 16. Ibid., pp. 595-6. 17. For the King’s Bench and Common Pleas in Henry Vlll’s reign, see ibid., pp. 352-82. 18. See ‘Clerks of the King’s Bench 1399-1547’ in LRU, pp. 128-39, which includes a list of filazers from the notes of the late C.A.F. Meekings. 19. C 67/46/37 (Pekham); C 67/51/27 (William Heed, 1484). Pekham is also described, in a 1484 pardon, as an usher of the chamber to Edward IV: C 67/51/35. Heed was a IP in Kent and probably a member of the Inner Temple. 20. E.g. William Curteys (1478), William Nanson (1481), Christopher Hanyngton (1482) and John Trewynian (1494). 21. See M. Hastings, The Court of Common Pleas in Fifteenth-Century England (Ithaca, 1947), pp. 247-55; M. Blatcher, The Court of King's Bench 1450-1550 (1978), Ch. 3, pp. 3446. 22. He described himself as an esquire and was clearly of some substance:

The English Legal Profession, 1450-1550

37

P.C.C. 33 Bennett (wi!l);C 1/302/82 (inventory of goods). 23. Robert BrystaU, Clerk of the Pleas of the Exchequer, was described in 1509 in his own roll as being also a London fishmonger: E 13/186, m. 30. Another fishmonger was Oliver Southworth, filazer of the King’s Bench, who began his career as servant to Edward Cheseman: Baker, Spelman's Reports, p. 356. Richard Bolton, filazer of the Common Pleas, was a merchant in Lincoln in the 1460s. Piers Pekham, Chancery clerk and mercer, has been mentioned above: note 19. 24. P.C.C. 8 Hogen. For the Maycotes, see Baker, Spelman's Reports, p. 364. 25. Baker, Spelman’s Reports, p. 365. Another King’s Bench filazer spent 28 years in Clement’s Inn before being admitted to the Inner Temple in 1522: ibid., p. 128, n. 2. 26. Re Vynter (1465), KB 27/818, m. 66; Rastell, Entrees, fo. 443; Y.B. Pas. 9 Edw. IV, fo. 5, pl. 20; Calendar of Patent Rolls 1467-77, p. 11; Baker, Spelman's Reports, p. 361; Blatcher, King’s Bench, p. 37. The precedent was twice followed by the Common Pleas in later times: see J.H. Baker, ‘Sir Thomas Robinson (1618-83), Chief Prothonotary of the Common Pleas’, Bodleian Library Record, vol. 10 (1978), p. 29, at pp. 37-9. 27. Baker, Spelman's Reports, pp. 55, 363; Blatcher, King's Bench, pp. 145-6. 28. Sonde’s arms: Archaeologia Cantiana, vol. 40, p. 931. Roper’s (emblazoned in 1518): KB 27/1028, m. 1. 29. Harman’s arms: Archaeologia Cantiana, vol. 40, p. 100. Fermour’s appear on his wife’s brass (1510) at Hornchurch, Essex; he became Clerk of the Crown in 1509: Baker, Spelman's Reports, p. 362. 30. The arms were displayed on his monument in St Michael Paternoster, London: B.L. MS Harley 6072, fo. 57 . 31. B.L., Add. MS 45133, fo. 28v (both arms). 32. E.g. Oliver Southworth (d. 1537) - see note 23 above — a filazer and a member of Clement’s Inn, who directed his arms to be placed on his tomb: P.C.C. 1 Dyngeley. Thomas Jakes (d. 1514) of the Inner Temple, Clerk of Hell and Clerk of the Warrants, married the widow of Chief J ustice Fyneux and directed that their arms be placed on his tomb in the Blackfriars, London: P.C.C. 2 Holder. See also note 87 below. 33. Baker, Spelman’s Reports, pp. 129-30. 34. L. Stone,‘Social Mobility in England 1500-1700’, P

society. Many barristers saw their profession as a means of achieving the goal of either founding a new landed family or re-endowing an old one.38 A career in politics was just one way to help ensure success. In this light it is no wonder that the leading members of the profes­ sion became such staunch defenders of the political and social establish­ ment that they had so recently entered.39 In E.P. Thompson’s recent examination of the infamous ‘Black Act’ of 1723, he commented briefly on the part played by Philip Yorke, the future Lord Hardwicke.40 Yorke’s career stands as a monument to the possibilities for advancement open to talented and opportunistic eighteenth-century barristers. According to Thompson, Yorke was a self-serving lawyer who as Solicitor- and later Attorney-General was the principal legal architect of Walpole’s political system. Furthermore, he ‘acquired, by the usual mysterious means, both a fortune and a reputa­ tion for probity ... His entire career was marked by contempt for the rabble, severity in handling rioters and rebels .. ,’41 Thompson implies that the political and judicial activities of Yorke and the other Whig lawyers were motivated first and foremost by selfish, personal consider­ ations. While we may well find the social attitudes of these men deplor­ able, in fact the biases that they and their successors exhibited either in Parliament or on the judicial bench were not simply a means of proving their ideological credentials or reaping professional or financial advantage. Rather they reflected ingrained social attitudes and incom­ prehension of the plight of the lower classes, combined with perhaps an overzealous devotion to order and stability instilled in members of the bar by their professional training and environment.42 By the time that de Tocqueville wrote his description of the legal profession quoted above, it was already slightly anachronistic. Lord Eldon’s resignation as Lord Chancellor in 1827 represents a watershed in the social history of the bar. In the subsequent ‘age of reform’ the barristers began to jettison the social ideals represented by the acquisi­ tion of country estates.43 However, this in no way threatened their coll­ ective status, since the old ideal had been superseded by a new inde­ pendent professional one.

Professionalism and the Bar

Recently it has been suggested that the principal characteristic of post­ industrial professions is their freedom from outside control over the ser­ vices provided and the manner in which service is rendered.44 In large

The English Bar in the Georgian Era

101

measure, the autonomy of the professional man rests on his dominant position over those who avail themselves of his expertise. In other words, the consumer is client, not patron. During the seventeenth century, as we have already seen, the bar achieved administrative independence through the cessation of direct supervision by the Privy Council and judges. Nevertheless, the counsellor’s authority over his clients was still limited. In the early seventeenth century, according to one scholar, ‘the barrister was primarily the instrument of his client’.45 The achieve­ ment of the barristers in the eighteenth and early nineteenth centuries was that freedom from control by the central authorities was preserved, while on foundations laid by their predecessors they established their their dominance vis-a-vis both lay clients and attorneys. By the mid-eighteenth century the relationship between barrister and lay client described above had been transformed completely. The barrister had gained the initiative. Blackstone, in his statement of the doctrine of the honorarium was unequivocal in his description of the ideal relationship between barrister and litigant. Members of the bar ‘may take upon themselves the protection and defence of any suitors, whether plaintiff or defendant, who are therefore called their clients, like dependants upon the ancient Roman orators’.46 This change may well have been due in part, at least, to the exodus of the gentry from the inns. As a result, the squirearchy no longer possessed the legal knowledge necessary to instruct barristers directly and to use them as legal servants. Furthermore, the changing social distribution of litiga­ tion as revealed in the circuit lists, and the increasing value of middle­ class connections in promoting a career at the bar also undermined the power formerly exercised by landed clients. The notion that barristers should not confer directly with lay clients did not become a formal rule of professional etiquette until the late nineteenth century.47 But it had been observed as a practice since the sixteenth century when, due to the expansion of legal business and the introduction of written pleadings, some of the busiest and most success­ ful members of the bar ceased to consult directly with clients as a time­ saving device.48 Unfortunately, it is impossible to date with precision the point at which intervention by an attorney became a central feature of professional etiquette, but the evidence suggests that it was firmly established by the second half of the eighteenth century.49 The Society of Gentlemen Practisers, a London-based professional association of attorneys founded by 1739 and forerunner of the Law Society, con­ sidered it a fixed rule in the early 1760s. In 1800 they claimed that consultations between barristers and clients without the intervention

102 The English Bar in the Georgian Era

of an attorney were ‘highly improper, and ought to be discountenanced by the Society, and the profession at large’.50 In 1776 Boswell referred to ‘the general opinion, that it is improper in a lawyer to solicit employ­ ment’, though Dr Johnson told him in reply that Alexander Wedderburn had adopted this practice in the early stages of his career, c. 1760.51 Finally, Lord Campbell, in deciding on the question whether intervention by an attorney was absolutely binding on members of the bar in 1850, referred to ‘the almost uniform usage which had prevailed upon the subject for more than a century’. He added, however, that even in his day the rule was not universally followed.52 The importance of the attorney’s intervention between barrister and client for the enhancement of the authority and autonomy of the bar was twofold. Decline in direct contact between barrister and litigant limited the layman’s ability to play the role of patron to his advocate. Furthermore, by delegating the mechanical paperwork and collection of fees to the members of the lower branch, barristers were able to emphasise the gentlemanly character of their work and their superior status.53 However, there were also dangers for the bar. Since barristers received their clients from attorneys, they were liable to become de­ pendent upon the goodwill of these practitioners.54 The impact of this situation on members of the bar was described by an Oxford circuiteer in the 1680s:

I G

I was mightily disheartened to find good drinking, and courting of attorneys, the grand foundation of a good practice, for though I was too often guilty of intemperance, ’twas always against my inclination, and I could not stoop to that sordid compliance, as to court those caterpillars of the nation.55 A century later, Thomas Ruggles explained the possible consequences of these practices on the standing and independence of the bar:

,

I ■

!

business which is obtained by habits of intimacy and familiarity with practisers . . . reverses the situation of the profession; and the barrister becomes the humble servant of the attorney, whereas they stand in respect to each other in natural situation directly the reverse, the one is quo ad hoc the servant of his principal; the other is patron of his client... 56

The Society of Gentlemen Practisers was quick to recognise and exploit the weapon at its disposal, and on at least two occasions, in

The English Bar in the Georgian Era

103

1748 and 1766, threatened to boycott members of the bar who had been accused of casting aspersions on the dignity of attorneys.57 In these circumstances it becomes clear why the bar acted to limit the social contacts between the two branches, at the very time that the attorneys were attempting to raise the ethical standards and status of their profession. The growing professional consciousness of the lower branch combined with its power over the disposition of briefs threat­ ened to undermine the autonomy of the bar and its dominant position in the legal profession. The best-documented response by the barristers to these circum­ stances was the exclusion of the attorneys from the inns of court. Al­ though rules aimed at achieving this goal had been enacted by the inns periodically since the mid-sixteenth century, the final assault was mounted between 1762 and 1828. In 1762, against protests from the Society of Gentlemen Practisers, the four inns promulgated a regula­ tion that an attorney who wished to be called to the bar must cease practising for two years before becoming a barrister.5’ This was fol­ lowed in the 1820s by the final and successful exclusion of attorneys who did not intend to be called to the bar from the two Temples and Lincoln’s Inn.59 The inns were not the only arena in which an attempt was made at this time to separate the barrister and the attorney. The Norfolk cir­ cuit mess, a dining club that also determined day-to-day etiquette for its members, was also concerned with segregating barristers from members of the lower branch. The rules of the mess prohibited barris­ ters from using public transport while travelling the circuit and from lodging in public inns in assize towns, lest they should be brought into social contact with attorneys and witnesses.60 Together the regulations of the inns of court and the etiquette of the bar helped to deflect the threat posed by attorneys to the authority and autonomy of the bar. In this way they formed an integral part of the prototype of modem professionalism being formulated by the bar at this time. Based on the dual principles of independence and merit, its central tenet stated that ‘the barrister kept the attorney at a distance and the first thought himself degraded by intimacy of connection with the other; the consequence of this habit was that abilities alone, and not predilection or friendship of the practiser, were the only recommen­ dation to business’.61 The emphasis on skill was the essence of the pro­ fessional ideal established by the bar, and was later adopted, albeit indirectly and probably unconsciously, by scores of other occupations in their quest for the right of self-discipline and collective social

104 The English Bar in the Georgian Era

mobility.

Conclusion The transformation of the English professions into an independent social entity has traditionally been seen as a mid- or even late-nineteenth-century phenomenon. As I have tried to demonstrate, the bar had acquired many of the characteristics associated with modern pro­ fessionalism by 1830. The inns of court secured their freedom from official supervision following the Restoration. During the eighteenth century changes in legal education, recruitment patterns, the distribu­ tion of litigation, relationships with clients and social ideals weakened the dependence of the bar on the landed classes. While to some extent these developments may have been encouraged by the economic and social consequences of the first phase of the Industrial Revolution, c. 1780 to 1830, they were by no means solely the result of the industrial­ isation process. Furthermore, competition and the demand for skilled representation in court prevented public or private patronage from con­ trolling the bar, in contrast to other professions. Finally, between 1762 and 1828 the bar defeated the threat to its authority posed by the attorneys by instituting a form of professional segregation. The result was the creation of the prototype of the modern profession.

I

i ii

Notes

J!

I. ft

1. Holdsworth, History of English Law, vol. 6, p. 490. 2. Ibid., p. 488; Select Committee on Legal Education, British Parliamentary Papers 10 (1846), p. 6. 3. R. v. the Benchers of Gray's Inn (1780), English Reports (1900-30), King’s Bench Division, vol. 99, pp. 227-8. 4. Holdsworth, History of English Law, vol. 12, pp. 18-20. 5. The equity draftsman and special pleader drew equity and common-law pleadings respectively. Members of the inns of court who had not yet been called to the bar could take out a certificate to practise in these capacities ‘under the bar’ and junior barristers were also permitted to draw pleadings and conveyances. 6. The percentage of law students eventually called to the bar was derived from Paul Lucas, ‘A Collective Biography of Students and Barristers of Lincoln’s Inn, 1680-1804: A Study in the “Aristocratic Resurgence” of the Eighteenth Century’, Journal of Modern History, vol. 46 (1974), p. 258; and MTAdmR, vols. 1-2. 7. Cf. below, p. 89.| 8. For a description of the ranks of the bar in the eighteenth century, see Holdsworth, History of English Law, vol. 12, pp. 4-11. 9. English Reports,Chancery Division, vol. 28, pp. 1224-58, 1308-9, and

The English Bar in the Georgian Era

105

vol. 29, pp. 1-8, January-December 1785. 10. Adam Smith, An Enquiry into the Nature and Causes of the Wealth of Nations (New York, 1937), p. 106. 11. M.S. Hardcastle (ed.), The Life of John Lord Campbell (2 vols., 1881), vol. l,p. 48. 12. See the numbers of counsel named in the Law List for these years. 13. As quoted in Edward Hughes, ‘The Professions in the Eighteenth Century’, Durham University Journal, vol. 13 (1951), p. 48. 14. Samuel Warren, Introduction to Law Studies (2 vols., 1845), vol. 1, p. 1. 15. William Blackstone, Commentaries on the Laws of England (4 vols., Oxford, 1765-9), vol. 1, p. 32; see also Paul Lucas, ‘Blackstone and the Reform of the Legal Profession’, EHR vol. 77 (1962), pp. 456-96. 16. Blackstone, Commentaries, vol. 1, p. 33. Blackstone, the posthumous son of a London artisan, was raised by an uncle who was a surgeon. His biography and social attitudes would undoubtedly provide material for an interesting psycho-historical study. 17. Ibid., p. 26. 18. Ibid., pp. 31-4. 19. In order to include those fathers listed merely as ‘gentlemen’ and ‘esquires’ in this social classification, 1 have divided them into three groups: (i) urban gentlemen who resided in towns with more than 2,500 residents in 1801; (ii) rural gentlemen who resided in towns and villages with under 2,500 inhabi­ tants; and (iii) colonial gentlemen. For the purpose of this study, it has been assumed that urban gentlemen were either professional or businessmen, and that rural gentlemen were landowners. On the problem of classification, see Lawrence Stone, ‘The Size and Composition of the Oxford Student Body 1580-1909’, in Lawrence Stone (ed.), The University in Society (Princeton, 1974), vol. 1, pp. 48 and 66-7; G.S. Holmes, ‘Gregory King and the Social Structure of Pre-Industrial England’, TRHS, 5th ser., vol. 27 (1977), p. 57; C.W. Brooks, ‘Some Aspects of Attorneys in England during the late Sixteenth and early Seventeenth Centuries’, unpublished DPhil. thesis, Oxford University, 1978, p. 258. AU years have been taken to begin on 1 January. 20. Blackstone, Commentaries, vol. 1, p. 25. 21. Ibid., p. 25. 22. See above Chapter 3, p. 70. 23. In this regard Professor Lucas has written that ‘the beginning of the reign of George III witnessed an “aristocratic resurgence” both at Lincoln’s Inn and at Cambridge University’, a development which he assumes affected aU the inns of court at this time: Lucas, ‘Lincoln’s Inn’, pp. 323-9. This conclusion is based on the assumption that all ‘gentlemen’ and ‘esquires’ were landed gentle­ men, regardless of place of residence: see also note 19 above. 24. Philip Elliott, The Sociology of the Professions (1972), Chs. 1 and 2; T.H. MarshaU, ‘The Recent History of Professionalism in Relation to Social Structures and Social Policy’, The Canadian Journal of Economics and Political Science, vol. 5 (1939) pp. 325-6. 25. Harold Perkin, The Origins of Modern English Society (1969), pp. 252-70 and 428-9; EUiott, The Sociology of the Professions, p. 56; MarshaU, ‘The Recent History of Professionalism’, pp. 325-7. 26. Daniel Duman, The Judicial Bench in England, 1727-1875: The Reshaping of a Professional Elite (Royal Historical Society, forthcoming), Ch. 3. 27. Norfolk Record Office, Walsingham MSS XIII/1, February 17,1745/46, and XIII/2 Account Book 1742-51. 28. B.L., Additional MS 36634, fo. 228.

106 The English Bar in the Georgian Era

•1

! ii

•I r

lr.

29. Thomas Ruggles, The Barrister, or Strictures on the Proper Education for the Bar (2 vols., 1792), vol. 2, p. 68. 30. Bodl., Coleridge MS d. 289, fo. 81. 31.1 have compared the Western circuit lists in the Law List with named barristers paying dues to the Western circuit mess, beginning in 1814. This indi­ cates that the numbers in the Law List reflect more or less accurately the actual size of the circuits: Western Circuit Membership and Fees Book. I would like to thank Mr Barry Carter, Wine Treasurer of the Western circuit, for permission to consult the records in his possession. Of all the English circuits the Home circuit is the most difficult to categorise, since not only did it contain urban and rural counties, but it was strongly influenced by its proximity to London and the courts at Westminster. 32. Hardcastle (ed.), Life of John Campbell, vol. 1, p. 294. 33. Edward Hughes (ed.), The Diaries and Correspondence of James Losh (2 vols., 1962), vol. 1, p. 41. 34. J.H. Baker, An Introduction to English Legal History, 2nd edn (1979), pp. 142-3. 35. Henry Lord Brougham, The Life and Times of Henry Lord Brougham (3 vols., 1881), vol. 1, p. 495. 36. Richard Pares, King George III and the Politicians (Oxford, 1970), pp. 22-3; Michael W. McCahill, Order and Equipoise, the Peerage and the House of Lords 1783-1806 (1978), p. 114. 37. Alexis de Tocqueville, Democracy in America (2 vols., New York, 1964), vol. 1, pp. 325-7. 38. On the purchase of estates by members of the judiciary in the eighteenth and nineteenth centuries see Duman, The Judicial Bench in England, Ch. 5. 39. Caroline Robbins, The Eighteenth Century Commonwealthman (New York, 1968), pp. 294-5; E.P. Thompson, Whigs and Hunters (1975), pp. 207-12; de Tocqueville, Democracy in America, vol. 1, pp. 323-8. 40. Thompson, Whigs and Hunters, p. 208. 41. Ibid. 42. On law and ideology in eighteenth-century England see Douglas Hay, ‘Property, Authority and the Criminal Law’ in Hay, Linebaugh et al. (eds.), Albion’s Fatal Tree (New York, 1977), pp. 17-63. 43. A fuller discussion of the social ideals of the judges is given in Duman, The Judicial Bench in England, Chs. 5-7. 44. Eliot Freidson, Professional Dominance (Chicago, 1970), pp. 104-25, 133-6. 45. Thomas G. Barnes, ‘Star Chamber Litigants and their Counsel 1596-1641’ in Legal Records and the Historian (1978), p. 23. 46. Blackstone, Commentaries, vol. 3, p. 28. 47. This was stated by Attorney-General Webster in answer to a query from a barrister, Robert Yerburgh MP. The correspondence was published in The Times, 29 June 1888, a clipping of which was incorporated into the Bar Committee’s records. Senate of the Inns of Court and the Bar, Bar Committee Minutes, vol. II, p. 78. 48. See Holdsworth, History of English Law, vol. 6, pp. 439-40; J.H. Baker, ‘Counsellors and Barristers’, CLJ, vol. 27 (1969), pp. 220-1. In 1640 Lord Keeper Littleton advised newly appointed serjeants ‘take not briefs of ordinary solicitors, but draw briefs yourselves’, as quoted ibid., p. 222. 49. Serjeant Pulling believed that the injunction against direct access was a recent innovation. Alexander Pulling, Order of the Coif (1884), pp. 72-4. For its existence at least in an embryonic form in the seventeenth century, see Roger North, A Discourse on the Study of the Law (1824), p. 39; Holdsworth, History

The English Bar in the Georgian Era

107

of English Law, vol. 6, p. 439. 50. Robert Robson, The Attorney in Eighteenth-Century England (Cambridge, 1959), pp. 25-6. 51. James Boswell, The Life of Samuel Johnson (London, 1970), p. 683. 52. Doe d. Bennett v. Hale (1850), English Reports, King’s Bench Division, vol. 117, p. 429. 53. Baker, ‘Counsellors and Barristers’, p. 223. 54. Already in the 1630s the principle that a barrister must not ‘hugg an attorney’ had been stated by Lord Keeper Finch, as quoted ibid., p. 224. 55. C.W. Bingham (ed.), Private Memoirs of John Potenger Esq. (1841), p. 38. 56. Ruggles, The Barrister, vol. 2, pp. 101-3. 57. Robson, The Attorney in Eighteenth Century England, pp. 28-30. 58. Bellot, ‘Exclusion of Attorneys from the Inns of Court’, LQR, vol. 26 (1910), passim. 59. Ibid., pp. 144-5; Select Committee on Legal Education (1846), p. 2. In fact, Gray’s Inn continued to admit attorneys even after the 1820s, ‘for the purpose only of holding chambers within the Inn’: ibid., p. 8. 60. Norfolk Circuit, Minutes of the Bar Mess, August 1831 and July 1827. There is no evidence on the initial introduction of the rule against lodging in public inns, but an attempt to repeal it was defeated in July 1849.1 would like to thank Mr John Blofeld QC for allowing me to examine the circuit records in his possession, and Mr Raymond Cock of Sussex University for drawing my attention to these valuable sources. 61. Ruggles, The Barrister, vol. 1, pp. 20-1. Actually here Ruggles was describing what he believed were the principles of the bar in earlier ages. These he contrasted with tire easy social intercourse between the two branches that he felt existed in his own day, and its unpropitious consequences for the profession. In fact, it would seem that Ruggles was unconsciously attributing the emerging pro­ fessional ideals of his day to the past.

i

i

3

5

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' il

I

THE ENGLISH CIVILIANS, 1500-1750 Brian P. Levack

Civil lawyers occupied a relatively unenviable position among the pro­ fessions of early modern England. ‘This State of all others is the weakest,’ wrote Thomas Wilson in describing the plight of these men at the beginning of the seventeenth century.1 Smaller in number than the common lawyers, restricted to a practice in courts of special jurisdic­ tion, and trained in a body of law that was often regarded as alien and popish, the civilians never became a dominant force in English law, administration or politics. Between the Reformation and the Glorious Revolution they encountered more than their fair share of professional difficulties, experiencing a series of crises that left them in a perman­ ently weakened condition. Mainly as a result of their conflicts with Puritans, common lawyers and mid-seventeenth-century Parliament­ arians, the civilians acquired a reputation for having resisted the march of political, constitutional, religious and economic ‘progress’. Detailed studies of the civilians’ careers and the courts in which they practised have begun to make possible, however, a more balanced assessment of the role they played in the development of modern English govern­ ment and society.2 The profession of English civil lawyers, conceived in the broadest possible sense, included all those men who pursued careers as advocates, proctors or judges in the ecclesiastical and admiralty courts. These men all possessed some knowledge of the civil and ecclesiastical laws, and they all received salaries or fees for services that were at least theor­ etically based upon such knowledge. They did not, however, belong to a unified, organised or cohesive profession. In fact, the profession of the civil law consisted of several fairly distinct groups of lawyers who iden­ tified much more readily with the other members of their respective groups than with the profession as a whole. These groups, however well defined, were not mutually exclusive, so that the same civilian might belong to two or three of them either concurrently or successively, as he obtained further education and experience. The most prominent and distinctive cluster of civilians consisted of those men who had been admitted as advocates to the Court of Arches, the most important provincial court of the Archbishop of Canterbury in London. Between 1500 and 1750 no fewer than 460 lawyers either 108

I

The English Civilians, 1500-1750

109

practised or at least received permission to practise in this court.3 As Table 5.1 indicates, admissions rose steadily during the last half of the sixteenth century but then entered a precipitate decline that was never fully reversed.4 The number of advocates engaged in active legal prac­ tice at any one time fluctuated between twelve and 24, whereas the full body of advocates, including those who had been promoted to the bench or had ceased to practise in the Arches, never numbered more than 70, the size of the body in 1601.5 In order to be admitted to the Arches, which was accomplished by a mandate from the Archbishop, a man had to possess a doctorate in civil law (or, before 1535, in canon law or both) from either Oxford or Cambridge. In the sixteenth cen­ tury a foreign law degree would also suffice, although civilians educated on the Continent usually obtained incorporation at one of the English universities before seeking admission as an advocate. Most of the advo­ cates belonged to Doctors’ Commons, the college of civilians in London. Founded in the 1490s, this society did not decide until 1570 to restrict admission to advocates, and only in the late seventeenth century did the membership of the society become virtually conterm­ inous with the full body of advocates.6 Besides serving in all of the Archbishop’s courts, the doctors of the Arches practised in the High Court of Admiralty and in the infrequently convened High Court of Chivalry. From the ranks of this group, moreover, were recruited the judges of the Archbishop’s courts, the Judge of the Admiralty Court, the King’s Advocate and a fluctuating number of masters in the Court of Requests and the Court of Chancery. Thus the advocates of the Arches constituted an elite within the profession, occupying a position similar in many respects to that of the seijeants-at-law among the com­ mon lawyers.

Table 5.1: Admissions to the Court of Arches, 1520-1749 1520-9 1530-9 1540-9 1550-9 1560-9 1570-9 1580-9 1590-9 1600-9 1610-19 1620-9 1630-9

?28 ?19 ?11 17 18 27 36 50 12 14 20 21

1640-9* 1650-9* 1660-9 1670-9 1680-9 1690-9 1700-9 1710-9 1720-9 1730-9 1740-9

13 7 23 19 12 11 16 12 4 9 11

‘Includes civilians who subscribed as advocates at Doctors’ Commons after aboli­ tion of archiepiscopal jurisdiction.

110 The English Civilians, 1500-1750

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Less prominent and numerous than the doctors of the Arches were the advocates who practised in the courts of the Archbishop of York. The great majority of these lawyers, who comprised a group less than one-seventh the size of the advocates of the Arches, were merely bach­ elors of law, although during the period 1570-1641 no fewer than six doctors of law practised with them.7 A small number of advocates, on the other hand, having proceeded MA, possessed no law degree at all. Although the advocates at York did not have a professional society analogous to Doctors’ Commons, they did nevertheless constitute a dis­ tinct legal community from which the Archbishop frequently, but not always, selected the judges of his courts. The judge of the Admiralty Court at York and the King’s Advocate in the North, a position created in 1635, also came from their ranks. Although civilians occasionally served as advocates in the consistory courts of English and Welsh dioceses, they did not form distinct legal communities in the cathedral cities. In contrast to the policy followed at London and York, the services of an advocate in a diocesan consis­ tory court were usually optional, and consequently most legal business before these courts remained in the hands of proctors. When advocates did practise in these courts, they simply submitted written opinions or appeared in the later stages of a case and therefore needed to be present in court no more than a few days per year. Under such circumstances, civilians who served as diocesan advocates did not consider their prac­ tice in these courts to be their primary occupational function; indeed, many of them pursued active careers in London.8 Proctors in the ecclesiastical and admiralty courts constituted a dis­ tinct branch of the civilians’ profession. Just as advocates performed functions that paralleled those of barristers in the common-law courts, proctors were the counterparts of attorneys. Instead of arguing points of law before the judge, they had responsibility for seeing a client’s case through its various stages. Entrusted with the more perfunctory aspects of the legal process, they had much greater public exposure than advocates and spent more time in court. The general recognition that they were professionally inferior to the advocates was based not only on the enforcement of a fairly clear division of labour between them,’ but on differences in their legal education and career patterns. Although bachelors of law could be found within both branches of the profession, doctors of law never practised as proctors after they re­ ceived their degrees. All advocates, moreover, held at least one univer­ sity degree, whereas some proctors were non-graduates. Even if they had not received a formal legal education, however, proctors could ac-

The English Civilians, 1500-1750

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quire considerable legal expertise, especially a knowledge of court fonns, by apprenticeship. In terms of practical legal knowledge they were often more expert than young advocates, whose university educa­ tion often proved to be only marginally relevant to their work. In 1603 the proctors at Norwich expressed contempt for the ‘degrees and titles’ of the London ‘doctors’ when the Bishop ordered the compulsory use of advocates in certain cases.10 In addition to possessing less impressive educational credentials than advocates, proctors had more limited opportunities for promotion. While advocates could generally look for­ ward to elevation to the bench, proctors usually did not rise any higher than registrars, and only at the archidiaconal level of church admini­ stration did they actually fill the same positions as advocates. Their careers thus restricted, proctors found it difficult to achieve great pro­ fessional, political or social distinction. They could earn a respectable income, and one of them might occasionally acquire the designation of ‘esquire’,11 but as a rule they were capable of achieving only limited prominence and influence in the cities where they practised.12 The largest concentration of proctors was in London, where the number practising in the Arches rose from ten to 20 during the six­ teenth century. It might have climbed even higher if Archbishop Whitgift had not decided in 1599 to prohibit 16 newly appointed proc­ tors from practising until the number of practitioners dropped below the ceiling he had established.13 Prior to 1570 some of the proctors, who like the advocates could build up a practice in all the London civillaw courts, had become members of Doctors’ Commons. The decision of 1570 no longer to admit them can therefore be seen as a sign of in­ creasingly rigid professional stratification. Even after their exclusion from Doctors’ Commons, however, proctors continued to maintain offices in the vicinity of Mountjoy House, the location of the college after 1568. Outside London groups of proctors practised in the courts of the Archbishop of York and in the courts of the various dioceses and arch­ deaconries. The number of proctors varied from place to place as well as over time, and the incompleteness of the judicial record makes it impossible to identify all of them or to determine the number of courts in which each proctor practised. We do know, however, that in the con­ sistory court of Norwich, which was one of the largest dioceses, the number of proctors climbed from three to ten during the sixteenth century, an increase that reflected, if it did not cause, a rise in the volume of litigation. An additional twelve proctors practised exclu­ sively in the archidiaconal courts within that diocese in 1603, whereas

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112 The English Civilians, 1500-1750

at the same time three proctors were active in the consistory court of the Archdeaconry of Nottingham.14 It is likely that more than 200 proctors practised in the local church courts throughout England and Wales at the beginning of the seventeenth century. In addition to these distinct clusters of advocates and proctors, the profession of the civil law included a large number of men who exer­ cised local ecclesiastical jurisdiction, either as chancellors of dioceses, commissaries of bishops, officials of archdeacons or judges of peculiar jurisdictions. Since few of these posts were highly remunerative, the same lawyer often held two or even three positions concurrently. The canons of the Church of England required these officials to be ‘learned in the civil and ecclesiastical laws’ and to possess at least the degree of Master of Arts or Bachelor of Law,15 so they were generally chosen from the ranks of the advocates and better educated proctors. Occa­ sionally, however, recipients of law degrees from the universities eschewed practice as an advocate or proctor and simply accepted a position as chancellor of a diocese or official of an archdeacon. These judges cannot be excluded from the broadly defined profession of the civil law, since they held law degrees and pursued full-time legal careers. The only appointees to such positions who cannot legitimately be con­ sidered part of the profession were those clerics, many of them rela­ tives of bishops, who manifested no knowledge of the ecclesiastical law. Appointments of such individuals elicited strong protests from the civilians, both individually and collectively, in the early seventeenth century.16 Besides those individuals who belonged to at least one of the groups of lawyers mentioned above, very few men fell within the broad defini­ tion of the profession. Those who exercised the lowest form of eccles­ iastical jurisdiction, that of the rural deanery, usually were clerics who regarded their judicial duties as being incidental to their main vocation. All of the courts in which the civilians practised employed a staff of registrars, scribes, notaries and apparitors. The principal registrar, who often came from the ranks of the proctors, exercised a number of ex­ tremely important administrative functions and often had to make deci­ sions regarding the disposition of cases and the definition of jurisdic­ tion,17 but only on the most technical grounds can one claim that he either practised law or exercised jurisdiction. Certainly tire other officers of the court did not meet such criteria. Somewhat more diffi­ cult to classify are the professors of civil law at Oxford and Cam­ bridge and at Gresham College in London. Most of these men com­ bined their academic duties with a practice in various courts. Some,

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however, like Alberico Gentili, Regius Professor of Civil Law at Oxford, whose practice of the law consisted of a brief stint as advocate for the Spanish government in the Admiralty Court, and George Porter, the Regius Professor at Cambridge, who restricted himself entirely to an academic career, can be considered part of the profession by virtue of the role they played in training men for it. Of course all those who took doctorates in civil law at the universities might be designated ‘civilians’ or ‘civil lawyers’, but doctors of civil law who remained at Oxford and Cambridge as fellows or pursued exclusively clerical careers, even if they engaged in legal scholarship, did not belong to the pro­ fession. One of the reasons it is so difficult to define the exact member­ ship of the profession is that the civilians themselves never established control over admission to it. Civil lawyers never developed a procedure analogous to the call to the bar by the inns of court by which they could have determined who belonged at least to the upper levels of the profession. The only institution capable of exercising such control was Doctors’ Commons, but that society remained essentially an informal association of advocates that did not certify men for legal practice. The failure of Doctors’ Commons to perform this function did not derive from a lack of commitment to the maintenance of professional stan­ dards; on a number of occasions the members of Doctors’ Commons showed themselves capable of excluding from practice or disciplining men whose credentials or behaviour did not meet with their approval.18 The problem was simply that Doctors’ Commons never undertook the formal education or training of the members of the profession, and it was mainly on the basis of such training that control over admission to the profession could be based. Of course Doctors’ Commons did pro• vide young civilians with an important type of informal education through association with senior practitioners. The society did not, how­ ever, transform this informal method of education into a formal system, as had the inns of court, mainly because the universities served that function adequately. Nor did Doctors’ Commons certify men for professional practice on the basis of their university degrees, as did the Royal College of Physicians. Since the Archbishop of Canterbury auth­ orised civilians to practise on the basis of such credentials, Doctors’ Commons did not find it necessary to provide a secondary licence.19 Young civilians, therefore, instead of being called to a bar of lawyers within an independent professional society, entered ‘the profession’ by gaining admission to at least one of the courts in which civilians cus­ tomarily practised. The procedure was no different for proctors, who

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114 The English Civilians, 1500-1750

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manifested even less cohesiveness than advocates and did not have their own professional society. Civilians who did not serve as either advocates or proctors started their careers by securing a position of judicature in one of the local ecclesiastical courts. In all cases, how­ ever, civilians received initial permission to begin their legal careers from clerics who were not even members of their profession, rather than from the judges of the courts in which they practised.20 The failure of the civilians to establish effective control over admis­ sion to their profession was derivative and symptomatic of a more general lack of professional autonomy. Both collectively and individu­ ally the civilians of this period revealed a striking degree of depend­ ence upon the universities, the church and the state. Upon these insti­ tutions the civilians relied heavily for a supply of new members of the profession, certification of professional status and employment. The effect of this reliance was twofold. On the one hand, the fortunes of the civilians’ profession became closely related to developments within those institutions. On the other, individual civilians, especially those in the upper levels of the profession, found it difficult, if not impossible, to act as independent professionals engaged in the work of providing services for clients. Instead they became servants and agents of the authorities upon whom they depended for employment. Although the universities did not provide legal education for all the members of the profession, the degrees they granted in that faculty served as the main qualification of most civilians for the positions they occupied, especially within the upper levels of the profession. The pro­ fession depended, therefore, upon the universities for an adequate supply of graduates in law, and when the number of degrees declined, as in the periods 153545 and 1642-60, the future of the profession looked far from secure.21 University law degrees also provided many of the members of the profession with their primary indication of pro­ fessional and even social status. During this period, an advocate of the Arches who had not been knighted was most commonly styled ‘Doctor of Law’ or simply ‘Mr Doctor’, a distinction equivalent to and arguably even higher than that of seijeant-at-law.22 In addition to education and status, the universities frequently provided civilians with sources of revenue. Colleges at Oxford and Cambridge, most notably Trinity Hall, Cambridge, and All Souls College, Oxford, gave fellowships to civilians who had not yet completed their education or who were in the process of establishing themselves as advocates. Other civilians, often further along in their careers, received administrative positions within various colleges and halls. Symbolic of the close relationship between the uni-

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The English Civilians, 1500-1750

115

versities and the profession was the fact that after 1568 Doctors’ Com­ mons leased its premises on Knightrider Street from Trinity Hall. It might not be accurate to describe Doctors’ Commons as a ‘colony’ of Trinity Hall,23 but the entire profession of the civil law can with some justification be regarded as an extension of the universities. More intimate than the civilians’ ties to Oxford and Cambridge, and to some extent the source of those ties, was their relationship to the English Church. At the beginning of this period these connections were at their strongest, since at that time the overwhelming majority of civilians were themselves members of the clergy, and many of them viewed their legal careers simply as a means of achieving upward mobility within the ecclesiastical hierarchy. In such circumstances the profession of the civil law (and that of the canon law with which it was intertwined) was for all practical purposes a ‘sub-profession’ of the clergy, just as virtually all the learned professions in Europe had at one time been.24 Gradually, however, during the sixteenth and seventeenth centuries the civilians’ profession became laicised. The process began before the Reformation, but it received its greatest boost from a statute of 1545 that opened positions of ecclesiastical jurisdiction to laymen.23 By 1600 this process was for the most part complete, but as late as 1640 a clerical advocate, Matthew Nicholas, received admission to the Court of Arches,26 while more than 100 years later clerical doctors of law occasionally received appointments as diocesan chancellors. It should be noted that throughout this period the degree of doctor of law remained a legitimate educational pursuit and a valuable professional credential for an ordained clergyman. Even in the early eighteenth cen­ tury one member of Doctors’ Commons, William Willymott, left his practice and became ordained. In most cases, however, early-eighteenthcentury doctors of law, unlike their sixteenth-century predecessors, chose either a legal or clerical career and did not try to combine the two, or pursue one after abandoning the other.27 Since lay civilians tended to regard their legal careers as the work of a life time and accordingly sought appointments to office on such terms, the steady increase in the number of lay civilians provides one of the most important indications of their professionalisation. Laicisation did, not, however, extricate civilians from their involvement in the English Church. Lay civilians, just like their clerical predecessors and colleagues, required episcopal permission to practise in church courts and, even more important, clerical patronage to receive appointments as judges. In questioning whether the civilians’ support for the bishops before the Civil War derived from their professional dependence upon

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116 The English Civilians, 1500-1750

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them for employment, the Earl of Clarendon wondered why common lawyers, who often served as stewards of bishops’ estates, had not developed a similar relationship to their episcopal superiors.28 What he failed to recognise was that for civilians clerical patronage was a primary rather than secondary source of professional livelihood and that it benefited nearly all the members of the profession. The civilians may have had a practice in the admiralty courts, but they needed the church to survive. In performing their duties in the church courts, moreover, the civilians exhibited a subordination to their superiors that further compromised the independence of their profession. For as men entrusted with ecclesiastical jurisdiction, the civilians often acted as servants of the clerics who employed them. Not only did they under­ take a large amount of strictly administrative work at their behest, but as judges they were also expected to enforce episcopal standards of religious conformity. Between the civilians and their clerical superiors conflicts often arose, and at times the two groups viewed each other as rivals for effective control of the ecclesiastical jurisdiction they shared, but such conflicts did not result in the establishment of the civilians’ administrative or judicial independence.29 Although the civilians’ primary institutional affiliation throughout this period remained the English Church, a limited number of them also found employment in the secular administration of the English state. Within the king’s government civilians served not only as judges of the admiralty and vice-admiralty courts but as masters in the Courts of Requests and Chancery, positions that required the exercise of admini­ strative as well as strictly legal functions. Because of their knowledge of international law a small band of civilians undertook diplomatic missions for the crown, while a very select group that included Thomas Wilson, Sir Julius Caesar, Sir Leoline Jenkins and Sir Charles Hedges rose into the highest levels of royal administration. There is nothing unusual in the fact that some civil lawyers received appointments within the king’s government. The state had a need for these men, either because of their specialised legal knowledge or the more general qualities of statesmanship that the study of civil law was believed to cultivate, and therefore it recruited them in the same way it recruited members of other professions, especially common lawyers. What is unusual is the total number of civilians who acted either in one of these secular capacities or as an ecclesiastical judge. A substantial 88 per cent of all the advocates admitted to the Court of Arches be­ tween 1600 and 1649 served in at least one administrative or semiadministrative position within the church or state. The figure for those

The English Civilians, 1500-1750

117

admitted between 1650 and 1699 dropped to 67 per cent, but only in the first half of the eighteenth century, by which time the number of positions open to civilians had declined, did it reach a more modest 43 per cent. Seventeenth-century civilians, in other words, either because of the limited rewards of advocacy or because of the demand for their services in church and state, rarely restricted their professional careers to legal practice, i.e. to the representation of clients in court. Rather they became a profession of ‘civil servants’, a group of men who, like Francis James, filled ‘those poor, troublesome and wearisome places ... in the government of the Church or Commonwealth’.30 In accepting such positions they sacrificed the professional independence of the advo­ cate and became economically dependent upon and administratively subordinate to high officials within the king’s government and church. Even those civilians who restricted their careers to advocacy could not completely avoid assuming the duties of officials and administrators, since they frequently acted as surrogates to the judge, a practice that blurred the distinction between bar and bench.31 The advocates of the Arches, moreover, were frequently asked to conduct the metropolitical visitations, exercise temporary ecclesiastical jurisdiction in the dio­ ceses and confirm the election of bishops.32 The ideal of the profes­ sionally independent advocate had no foundation in reality. If the civilians’ profession can be considered an extension of the universities, an appendage of the church and an arm of the state, it had a somewhat more tenuous relationship to English landed society. Like the members of most pre-industrial professions, civilians could claim, on the basis of one criterion or another, to be members of the gentry class. In reality, however, very few of them were integral members of that class but belonged more properly to their own separate status group within English society. The social origins of the civil lawyers provide one indication of their marginal relationship to landed society. The predominantly lay civilians who formed the elite of their profession in the seventeenth and eighteenth centuries may not have conformed to the stereotype of the ‘low-born clerks’ whom they succeeded, but neither did they come from the highest levels of English society. As Table 5.2 indicates, only 59 (or 28.9 per cent) of the 204 lawyers ad­ mitted to the Court of Arches between 1600 and 1749 were sons of peers, baronets, knights or esquires, while another 39 (or 19.1 per cent) were sons of mere gentlemen. The percentages might be slightly higher, since the social origins of some civil lawyers remain unknown. The remainder of the civilians came from the more prosperous segments of non-landed society, most of them being sons of clerics, lawyers, minor

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118 The English Civilians, 1500-1750

officials, merchants, artisans or yeomen. Almost all the civilians came from families that were wealthy enough to support them during their many years of university education. Very few of them, however, entered the legal profession with a guarantee, much less a reasonable prospect, of inheriting a country estate, since the overwhelming majority of those who belonged to landed families were younger sons.33 Even first sons of mere gentlemen did not necessarily anticipate a substantial patrimony, and perhaps for that reason looked to the law as a source of income. Well might such men have sympathised with Henry Marten, the first son of a London grocer who had risen into the ranks of the minor gentry. Marten in later life reflected that he would gladly have remained on his father’s lands if they had yielded £80 per annum rather than £40, but under the circumstances he had decided to pursue a legal career, a decision which for him proved to be a profit­ able one.34

Table 5.2: Social Origins of Advocates of the Arches, 1600-1749 1600-49

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Peers Baronets Knights Esquires Gentlemen Urban ‘Gentry’ Clergy Lawyers, Physicians, Officials etc. Merchants and Artisans Yeomen ‘Commoners’ Foreign Unknown Totals

i

0 0

8

1650-99 0 2 7

1700-49 1 4

Totals

3

18 34 35 4 22

14

12

16 2 4

14 2 8

8 5 0 10

6

5 5 0 4 0 13 72

8 6 0 0 0 7 52

5 2 13 1 9 80

1

6

19 16

2 17 1 29 204

Once the civilians had established themselves in legal practice, those who were not ‘gentlemen by descent’ could of course acquire gentility in their own right. Not only could they claim armigerous status by courtesy, but they often had the opportunity to obtain grants of arms after purchasing country estates. By 1709 the walls of the courtroom at Doctors’ Commons displayed the arms of all the practising advo­ cates.35 During this entire period, moreover, 54 advocates of the Arches received knighthoods. These lawyers had therefore gained en-

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trance into one of the highest status groups within English society, but even when considered together with those advocates who had received grants of arms, they still comprised a distinct minority of their profes­ sion. A career in the civil law may have been a high road to honour and wealth for men such as Sir Edward Stanhope and Sir Julius Caesar, but it offered much more modest rewards to the less prominent members of the profession, not to mention the proctors. ‘There have been and are few wealthy civilians in the land,’ wrote one observer in 1597, ‘except such as were otherwise advanced by the Prince’s service’.36 The extent to which civilians succeeded in establishing connections with other members of landed society and adopted their mores remains a separate question. Civil lawyers had only limited opportunities in this regard. They did not have a predominantly aristocratic clientele, espec­ ially in the Admiralty Court, where they catered primarily for mer­ chants and mariners. Nor did they find it easy to adopt the leisurely life­ style of the gentle classes, however much that may have been the goal Qf the learned professions. In a profession not known for its financial rewards, .civilians often had to serve in numerous capacities to earn a respectable living, making a life of leisure, especially on a country estate, difficult to achieve.37 Finally, civilians were not able, like many members of pre-industrial professions, to rely upon the general educa­ tion of the amateur gentleman in the performance of professional ser­ vices.38 There is no doubt, of course, that advocates of the Arches, who were sometimes men of broad and even elegant learning, often did not conform to the stereotype of the narrow-minded, philistine lawyer. It is also true that legal education at the universities, which consisted mainly of formal jurisprudence, did not prove to be particularly useful to the practising lawyer. Nevertheless, civilians found it necessary in their everyday work to utilise a body of highly specialised knowledge, whch they acquired either informally at the universities, at Doctors’ Commons or by experience. This knowledge, which the generally edu­ cated English gentleman did not share, served as one of the few sources of cohesion in an otherwise disparate, unorganised and dependent pro­ fession. In many ways the specialised knowledge that the civilians possessed constituted a more serious liability than their lack of professional auto­ nomy. Civil lawyers suffered greatly from a general hostility towards, or at least a suspicion of, the law they studied and practised. English legal writers from Fortescue to Coke did not hesitate to emphasise the uniqueness of the common law and its resistance to Roman influences, thereby encouraging the belief that the civil law was an alien legal

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code. Even more damaging to the civilians was the popular concep­ tion of English ecclesiastical law as ‘popish’, since it contained large amounts of unreformed canon law. This view proved to be most harm­ ful in the early seventeenth century, when Puritans criticised the civilians for their administration of the canon law and their main­ tenance of Laudian and therefore allegedly popish standards of eccles­ iastical conformity. The general characterisation of the law professed by civilians as both foreign and papist was by itself damaging enough to the civilians, but it had an even greater impact upon their fortunes when it rein­ forced the efforts of common lawyers to limit the civilians’ jurisdic­ tion. Perhaps too much has been made of the rivalry between common lawyers and civilians in the sixteenth and seventeenth centuries. Far from always viewing the civilians as their implacable antagonists, com­ mon lawyers often showed respect for their accomplishments and ad­ mitted the more prominent members of their profession to the inns of court as honorary members. The two groups appear, moreover, to have worked in relatively harmonious fashion as masters of Requests and Chancery, members of the High Court of Delegates and the High Com­ mission, commissioners for admiralty criminal causes, members of the Council of the North, and Justices of the Peace. Throughout the seven­ teenth and eighteenth centuries, moreover, judges of the common-law courts granted civilians audience in their courts when cases involved matters that touched on the civil and ecclesiastical laws. But when it came to defining the boundaries of their jurisdiction, the common lawyers acted, as might be expected, on the basis of professional in­ terest. There were two main bones of contention. The first was litiga­ tion in the church courts in which the secular and ecclesiastical laws overlapped, especially in matters of tithes and testaments. The second was litigation in the Admiralty Court over maritime contracts con­ cluded either in English or foreign ports. In both cases the common­ law judges, by virtue of their traditional role of conservators of the law, often issued prohibitions against cases pending in the civilians’ courts. These writs had the potential for excluding entire categories of litigation from the civilians’ jurisdiction and therefore threatened the health, if not the survival, of the entire profession.39 Confronted with frequently intense competition from common lawyers, victimised by popular hostility to the civil and ecclesiastical laws, and lacking professional autonomy, the civilians experienced a number of fairly serious crises in the sixteenth and seventeenth cen­ turies. As Table 5.1 indicates, each of these crises was accompanied

The English Civilians, 1500-1750

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by a decline in the number of admissions to the Court of Arches. The first began in 1535, when a royal injunction against the formal study of canon law at the universities discouraged the study of civil law as well. “The books of civil and canon law were set a-side to be devoured of worms, as savouring too much of Popery.’40 The civilians gradually recovered from this depressed state of affairs and, buoyed by an in­ crease in litigation, appeared to be flourishing as the sixteenth century drew to a close. In the first decade of the seventeenth century, how­ ever, they began to feel tire impact of prohibitions against cases pending in their courts, an apparent decline in the volume of litigation,41 a loss of positions as masters of Requests and Chancery and a failure of legal fees to keep pace with inflation. An increase in the number of doctor­ ates in civil law and in admissions to the Arches in the late sixteenth century had also created excessive competition for the relatively few lucrative positions within the profession, so that contemporaries began to doubt whether even half the advocates could acquire a ‘competent living’.42 So serious was the crisis that one petition, written in 1607, predicted that ‘the profession is like to be wholly mined and neglected and the church and commonwealth in short time deprived utterly of the service of such men’.43 Whatever problems the civilians had in the early 1600s paled by comparison with those of the 1640s and 1650s, when tire profession, after a brief recovery in the 1630s, was almost completely eclipsed and Puritans celebrated the ‘funeral’ of Doctors’ Commons.44 In those years the civilians paid the price for their depend­ ence upon, and support of, tire episcopal hierarchy and the monarchy itself. No fewer than eleven members of their profession suffered im­ peachment in 1640-1, while others went into exile or were forced to compound for their estates as Royalists. At the same time the reputa­ tion of the civil law, which one pamphleteer blamed for the Civil War it­ self,45 fell to new depths and its study at the universities encountered vigorous criticism. ‘A Batcheler of Law is not worth a straw/ Unlesse he be amongst fooles’ concluded one piece of Puritan verse.46 Many of the civilians’ most pressing problems vanished at the Restoration, but in the 1660s and 1670s the profession entered a fourth crisis when it found itself unable to defend the integrity of the admiralty jurisdiction and when civilians once again began to be deprived of positions as masters in Chancery.47 Although the civilians managed to recover, at least to some extent, from each of these crises, the battering they withstood during the critical periods eventually took its toll. By 1750 it was apparent that the civilians belonged, if not to a moribund profession, to one that

122 The English Civilians, 1500-1750

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had been permanently weakened and had entered a long-term decline. Admissions to the Arches between 1700 and 1749 amounted to only 35 per cent of the number for the period 1550-99. The courts in which the civilians practised had lost large segments of their jurisdiction, while the spiritual sanctions used to maintain the authority of the church courts had, since the Reformation, lost their effectiveness.4® To add to their problems, two of the courts on which they had served, the Court of Requests and the High Commission, had not survived the Civil War. The Court of Chancery had survived, but in 1699 the last civilian, Henry Newton, had been appointed as master. Almost half a century had passed since a civil lawyer had become either a Secretary of State or a member of the Privy Council, and after 1691 civilians no longer served as diplomatic envoys. Whatever limited political influ­ ence the civil lawyers may have possessed in the past had been lost. From a profession that had returned 13 MPs to the Parliament of 1601, an average of only two civilians sat in the parliaments of the early eighteenth century.49 Considering the gravity of the crises that the civilians faced, each of which was attended by the most dire predictions of professional des­ truction, one might legitimately ask how the civilians managed to sur­ vive. Part of the answer lies in royal intervention. By endowing the Regius Professorships of Civil Law in 1540 and by taking steps to en­ sure that positions of ecclesiastical jurisdiction be opened to lay civilians, Henry VIII established a pattern of royal patronage that all his succes­ sors through Charles II followed. The civilians’ recovery from the crisis of the early seventeenth century came about almost completely as a result of royal action. Both James I and Charles I took decisive steps to reduce the number of prohibitions, while Charles temporarily re­ versed the replacement of civil lawyers by common lawyers in the Courts of Chancery and Requests.50 In helping the civilians to recoup their losses of the 1640s and 1650s Charles II gave signs that he was willing to maintain the policy of his father.51 Only when the struggle to preserve the admiralty jurisdiction reached its final stages did it become clear that neither he nor any other members of the royal court were willing to bail the civilians out.52 Even more instrumental than royal patronage in enabling the civilians to survive was the recognition that they fulfilled essential needs in English government and society. This perception, much more than ideological preference for the civil law, lay at the root of Henry VHI’s, James I’s and Charles I’s support for the civilians. The same considerations help to explain their survival during the gloomy days

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123

of 1642-60. The reputation of civil lawyers and the civil law may have sunk to new depths during these years, and the members of the Hale Commission may have seen little reason to maintain the profession,53 but the government’s perception of the civilians’ utility did not change appreciably. Neither the appointment of common lawyers to sit with civilians on the Admiralty bench during the Interregnum nor the trans­ fer of probate business to a special court in 1653 eliminated the need for these lawyers’ legal and administrative expertise. Even in the eight­ eenth century, the most compelling argument in favour of preserving the civilians’ profession was that they alone possessed a body of know­ ledge that was indispensable to the state.54 Another reason for the civil lawyers’ success in meeting the crises that faced them was their ability to take collective action on their own behalf. The entire profession of civil lawyers might not have mani­ fested a high level of cohesion, but this was not true of the advocates of the Arches, especially when their livelihood appeared to be in jeopardy. Indeed, the very foundation of Doctors’ Commons in the 1490s might very well have represented an attempt to protect the interests of the profession when the jurisdiction of the church courts was under at­ tack.55 Once established, Doctors’ Commons provided an institutional framework for corporate professional activity, which often took the form of petitions that attempted to bring relief to a beleagured pro­ fession.56 Most of these statements represented no more than a desire to recover losses that had already been incurred, but a few of them reveal a profession that was trying to accommodate itself to a changed political and legal world. In 1658, for example, the civilians proclaimed that the law they professed was ‘a distinct body from the canon law and hath no relation to archbishops, bishops or archdeacons’, while its proper spheres of activity were the conduct of foreign trade, diplo­ macy, the probate of wills and the regulation of marriage.57 While tech­ nically correct, this statement is somewhat disingenuous, since the civilians had always concerned themselves with the practice and admin­ istration of the ecclesiastical as well as the civil law, and three years after making this disavowal, under completely changed political circum­ stances, they felt no need to argue the point further. Their statement, none the less, reveals the strength of their instinct for survival in a polit­ ical environment that bred mistrust of their profession. While the civilians in the long run did not find it either necessary or expedient to sever their numerous connections with the canon law and the clergy, they had much more pressing reasons for accommodat­ ing themselves to the common law and the common lawyers. A number

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of early-seventeenth-century civilians, most notably John Cowell, took great pains to illustrate the compatibility of the law they studied with the common law, an argument which found support among common lawyers like Lord Ellesmere.58 These efforts bore some fruit in the mid- and late seventeenth century, when the civilians’ profession be­ gan to include a substantial number of men who had studied at the inns of court and, among those, a smaller number who had been called to the bar. At the same time the long-standing rivalry between the com­ mon lawyers and the civilians showed clear signs of abating, while common lawyers began to espouse the position that the law professed by the civilians had a place within the broad framework of the common law. In a further effort to minimise hostility toward them, Sir Robert Wiseman argued that the civil law did not necessarily support highly autocratic theories of monarchical power.59 The net effect of all these developments was to break down some of the barriers that separated the civilians from the other members of the English legal community. Although the profession of the civil law managed to survive its many crises and at the very least limp through the eighteenth century, it never became a dominant force in English politics or society. A number of civilians rose to great prominence in church and state, but as a profes­ sion the civil lawyers were too small in numbers and too limited in their jurisdiction to play a role similar to that of the common lawyers in the development of modern English government and society. What­ ever influence the civilians did manage to have on the wider, non-legal world has, moreover, often been portrayed as a defence of the old order against the advancing tide of constitutional government, economic liberalism and religious reform. Thus the civilians, products of a system of education that had once been dominant at the universities but was slowly being rendered obsolete, appear to have been medieval fossils in an early modern world, servants of a church that was losing prestige and influence and captives of outmoded forms of political and religious thought. Any such characterisation of the civilians is subject, at the very least, to serious qualifications.60 While it is true, for example, that civilians never became completely independent of the clergy, they did neverthe­ less remove the greater part of ecclesiastical jurisdiction from imme­ diate clerical control and thereby made an important contribution to the secularisation of English society. The argument that the civilians impeded the development of a capitalistic society, even if it has some merit with respect to their activities in the church courts, ignores the services they performed for merchants in the Admiralty Court. Even in

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the middle of the seventeenth century, when the civilians went into eclipse, merchants expressed a qualified preference for the Admiralty Court over the courts of common law.61 When one considers the political thought of the civilians, it becomes even more difficult to characterise them as bastions of the old order. For the civilians of the late sixteenth and early seventeenth centuries displayed an objective, rational, ‘modern’ view of the state and a pre­ occupation with locating and defining sovereign power within it. The civilians’ familiarity with the Corpus Juris Civilis, their involvement in diplomacy and the problems of international law and their commitment to the maintenance of the Royal Supremacy help to explain their sus­ tained interest in questions regarding sovereignty and the power of the king. The writings of Sir Thomas Smith, John Cowell, Alberico Gentili and Richard Zouch — all of whom were Regius Professors of Civil Law — reveal a systematic, rational approach to these problems and suggest that legal education at the universities encouraged other members of the profession to think along such lines.62 In addition to encouraging a rational view of sovereignty, the civil­ ians’ education in the Corpus Juris Civilis and their respect for the excellence of the civil law made them more reluctant than common lawyers to accept the myths associated with the common law and more willing to recommend its reform.63 Their critique of the common law did not, to be sure, place them in the vanguard of modem historical thought.64 Nor did any members of their profession ever recommend a reception of Roman law similar to the receptions that had occurred on the Continent. Faced with the task of merely maintaining the civil law’s narrow sphere of influence within England, they were content to com­ pare the two laws and to recommend the ‘codification’ or rationalisa­ tion of tire common law on the basis of Roman law principles.65 These efforts did not produce any tangible effect on the development of the common law, except perhaps indirectly through Blackstone,66 but they do represent some of the first English efforts to establish a set of principles, later to be identified as natural law, in all legal systems. In this regard these few civilians, who belonged to a profession famous for its resistance to change, made a limited contribution to the formation of modern European culture.67

Notes 1. T. Wilson, ‘The State of England, Anno Dom. 1600’ ed. FJ. Fisher, in.;

126

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The Camden Miscellany, vol. 16 (Camden Society, 3rd ser., vol. 52, 1936), p. 25. 2. See, for example, R.A. Marchant, The Church Under the Law (Cambridge, 1969); B.P. Levack, The Civil Lawyers in England (Oxford, 1973); D.E.C. Yale, ‘A View of the Admiral Jurisdiction: Sir Matthew Hale and the Civilians’ in D. Jenkins (ed.), English Legal History Studies 1972 (Cardiff, 1975), pp. 87-109; G.D. Squibb, Doctors' Commons (Oxford, 1977); R. Houlbrooke, Church Courts and the People During the English Reformation 1520-1570 (Oxford, 1979). 3. This number includes those who belonged to Doctors’ Commons as advo­ cates and a smaller number of advocates for whom there is no evidence of admission to that society: Squibb, Doctors' Commons, pp. 121-92, 204-9. It includes those whom Squibb considers probably to have been advocates, but not the nine civilians on pp. 204-9 for whom there is no evidence of admission to the Arches. 4. The absence of archiepiscopal records of admission for most of the early sixteenth century makes it possible that the totals for those years could be higher. Decades of admission for the advocates of this period have been estimated on the basis of the date of receipt of the doctoral degree and the date of admission to Doctors’ Commons. 5. P.R.O., PRO 30/26/8, fos. 78-79, lists 47 advocates in Doctors’ Commons, to which must be added 23 advocates not listed as members. The size of the full body of advocates in 1639 was 52: SP 16/474/108. 6. Squibb, Doctors' Commons, pp. 37-42. 7. For a list of advocates between 1559 and 1640 see Marchant, Church Under Law, pp. 247-51. Admissions for the period 1570-1639 amounted to 13.3 per cent of the number admitted to the Court of Arches. 8. T.F. Barton (ed.), The Registrum Vagum of Anthony Harison, Part 1 (Norfolk Record Society, vol. 32, 1963),p. 28. Four of the five advocates were also advocates of the Arches. 9. Proctors could, like advocates, serve as surrogates of the judge, even In the Court of the Arches. For such an authorisation of William Creake, a proctor, see L.P.L., MS 1351, fo. 99. 10. Marchant, Church Under Law, pp. 52. n 3. 11. L.P.L., MS 1351, fo. 103. 12. Marchant, Church Under Law, pp. 50, 253-4; Houlbrooke, Church Courts, p. 28.1 am grateful to Dr Houlbrooke for supplying me with information on the proctors who practised both at Norwich and Winchester. 13. L.P.L., MS 1351, fo. 104v. 14. Houlbrooke, Church Courts, pp. 28, 265; Barton.Registrum Vagum, Part 1, p. 28; Marchant, Church Under Law, pp. 253-4. 15. E. Cardwell (ed.),Synodalia (2 vols., 1844), vol. 2, pp. 318-19. 16. L.P.L., MS 958, pp. xiv-xv; DC1, fo. 78v; SP 16/56/27; 16/70/55. 17. See R. O’Day, ‘The Role of the Registrar in Diocesan Administration’ in R. O’Day and F. Heal (eds.), Continuity and Change (Leicester, 1976), pp. 77-94. 18. L.P.L., MS DC1, fo. 79; Squibb, Doctors' Commons, p. 41. 19. See L.P.L., MS DC1, fo. 33 for the licences granted to Walter Cretyng and Nicholas Hawkins. 20. For the role of the civilian judge in the process of admitting advocates and proctors see Bodl., Ashmole MS 857, pp. 370-1, 376; L.P.L., Bancroft Register, fo. 138v. 21. Conversely, the civil-law faculties often felt the effects of professional depression, which often brought about a decline in enrolment. See Levack, Civil Lawyers, pp. 50-3; R. Wiseman, The Law of Laws (1656), p. iii. 22. Bodl., Barlow MS 9, pp. 1-10. 23. H.E. Malden, Trinity Hall (1902), p. 106.

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24. Squibb, Doctors' Commons, p. 25. 25. 37 Henry VIII, c. 17. 26. SP 16/442/125. 27. Of the 72 men who received non-honorary doctorates in civil law from Cambridge between 1700 and 1749, only three combined a clerical and legal career. Twenty-four remained lay and went into some part of the profession of civil law, 34 pursued strictly clerical careers, while seven remained at Cambridge. The careers of three are unknown. Graduati Cantabrigiensis (Cambridge, 1823); J. and J.A. Venn, Alumni Cantabrigiensis, Part I (4 vols., Cambridge, 1922-7). 28. Edward, Earl of Clarendon, The History of the Rebellion, ed. W.D. Macray (6 vols., Oxford, 1888), vol. 1, p. 405. 29. On this point see Levack, Civil Lawyers, pp. 165-8. 30. P.R.O., will of James, PROB 11/127/43. 31. C.G. Cocke, Englands Compleat Law-Judge and Lawyer (London, 1655), p. 25; F.L. Wiswall Jr, The Development of Admiralty Jurisdiction and Practice Since 1800 (Cambridge, 1970), pp. 79-80, 82. 32. See L.P.L., Bancroft Register, fos. 10v, 15v, 16v, 28v-29, 59; W. Note­ stein and F. Relf (eds.), Commons Debates for 1629 (Minneapolis, Minn., 1921) pp. 36. 134-5. 33. Only ten of the civilians are known to have been first sons of landed fathers. 34. T. Fuller, The History of the Worthies of England (3 vols., 1840), vol. 2, pp. 370-1. 35. P.R.O., PRO 30/26/8, fo. 234. 36. Bodl., Tanner MS 280, fo. 326v. For an analysis of the wealth of the civil lawyers in the early seventeenth century see Levack, Civil Lawyers, pp. 53-60. 37. For the problems of Dr William Bird see SP 14/152/71. 38. P. Elliott, The Sociology of the Professions (1972), pp. 27-32. 39. See, for example, T. Ridley, A View of the Civile and Ecclesiastical Law, 2nd edn (1634), dedication; SP 16/208, p. 301; H.M.C., Salisbury, vol. 16, p. 39. 40. Quoted in D.R. Kelley, ‘History, English Law and the Renaissance’,P & P, no. 65 (1974), p. 40. See also J.B. Mullinger, The University of Cambridge from the Royal Injunctions of 1535 to the Accession of Charles I (Cambridge, 1844), p. 127. Cambridge granted only eight doctorates in civil law between 1535 and 1544, four fewer than for the period 1525-34 and twelve fewer than the com­ bined total of civil-law and canon-law degrees for the earlier period. M. Bateson (ed.), Grace Book B, Part II (Cambridge, 1905), pp. vi-vii. 41. The records of the Court of Arches for this period have not survived, but for evidence that the volume of litigation in other church courts levelled off or declined after 1600 see Marchant, Church Under Law, pp. 62, 68. For the Admiralty Court see Yale, ‘Admiral Jurisdiction’, p. 101. 42. See Levack, Civil Lawyers, pp. 50-85. For an early premonition of the crisis see Bodl., Tanner MS 280, fo. 322v. 43. Salisbury, vol. 19, pp. 477-8. 44. The Last Will and Testament ofDoctors Commons (1641);/! Letter from Rhoan in France (1641); The Proctor and the Parator (1641). 45. Englands Monarch (1644), pp. 1-3. 46. A Letter from Rhoan in France, p. 3. 47. Yale, ‘Admiral Jurisdiction’, pp. 87-96; J. Haydn, The Book of Dignities (1894), p. 396. 48. R. Houlbrooke, ‘The Decline of Ecclesiastical Jurisdiction under the Tudors’ in O’Day and Heal, Continuity and Change, pp. 244-9. 49. Members of Parliament (4 vols., 1878-91), Part 1, pp. 437-41.586-607;

128

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Part 2, pp. 1-108. 50. C. Hill, Society and Puritanism in Pre-Revolutionary England (1964), pp. 332-3; P.R.O., PC 2/42, pp. 456-8; B.L., Additional MS 34324, fo. 282. 51. In 1660 Charles II appointed or reappointed seven civilians as masters in Chancery, one fewer than Charles 1 had ordered. See Haydn, Book of Dignities, p. 396. 52. Yale, ‘Admiral Jurisdiction’, pp. 92-3. 53. M. Cotterell, ‘Interregnum Law Reform: the Hale Commission of 1652’, EHR, vol. 83 (1968), p. 702. 54. The State of the Ecclesiastical Courts Delineated (1733), pp. 5-7. 55. Houlbrooke, Church Courts, p. 9. 56. B.L., Harleian MS 358, fo. 184; Lansdowne MS 142, fo. 455; Bodl., Tanner MS 65, fo. 82; SP 16/456/44; The Journals of the House of Commons (London, 1803- ), vol. 7, p. 457. 57. Bodl., Tanner MS 51, fo. 8. 58. J. Cowell, Institutiones Juris Anglicani (Cambridge, 1605); Levack, Civil Lawyers, pp. 131-40; L.A. Knafla, Law and Politics in Jacobean England (Cambridge, 1977), p. 221. 59. Wiseman, Law of Laws, p. 19. 60. For one of the first historical views of the civilians as progressives rather than reactionaries, see F.W. Maitland, English Law and the Renaissance (Cam­ bridge, 1901). Maitland tended to exaggerate the civilians’ role in Renaissance, Reformation and Reception. For a more recent attack on the view that civilians were steeped in ‘medievalism’, see R.A. Marchant, The Puritans and the Church Courts in the Diocese of York (1960), p. 2. 61. See G.F. Steckley, ‘Merchants and the Admiralty Court During The English Revolution’, AJLH, vol. 22 (1978), pp. 137-75. 62. T. Smith, De Republica Anglorum (1583), pp. 43-7; J. Cowell, The Interpreter (Cambridge, 1607), sub ‘Prerogative of the King’, ‘King’, ‘Parliament’; A. Gentili, Regales Disputationes Tres (1605); R. Zouch, Elementa Jurisprudentiae (Oxford, 1636), pp. 60-1..For evidence of such tendencies among non­ academic civilians see B.L., Cotton MS Titus IV, fo. 242, and L.E. Berry (ed.), The English Works of Giles Fletcher (Madison, Wis., 1964), p. 194. 63. Levack, Civil Lawyers, pp. 148-9. For the opinion of Walter Walker see Cotterell, ‘Interregnum Law Reform’, p. 702. 64. Kelley, ‘History, English Law and the Renaissance’, pp. 44-5. 65. See especially Cowell, Institutiones', Zouch, Elementa. 66. W.S. Holdsworth, Sources and Literature of English Law (Oxford, 1925), pp. 232-5. 67. On the limited English participation in this development see W.J. Bouwsma, ‘Lawyers and Early Modern Culture’, AHR, vol. 78 (1973), pp. 324-5.

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6

THE LEGAL PROFESSION IN COLONIAL NORTH AMERICA

Stephen Botein

Until recently the history of the legal profession in the mainland col­ onies of British North America, like the history of early American law, was apt to be systematically neglected — or distorted — within a Whiggish framework of interpretation that emphasised more recognis­ ably modem achievements of the nineteenth century. According to one chronicler, it took many ‘painful and costly experiences’ before American colonists ‘gradually came to realize ... the wastefulness and bankruptcy of the maxim that every man ought to be his own lawyer’. Hence ‘the majority of the colonies were plagued for a long time with a host of pettifoggers, sharpers, and spellbinders’.1 Despite brave be­ ginnings here and there, the colonial period seemed more or less a ‘dark age’ preceding the ‘amazing’ success of American lawyers before the Civil War in making good their claims to be the pre-eminent public pro­ fession of the United States and their subsequent efforts to develop formal structures of professional training and self-regulation.2 One in­ fluential discussion of colonial lawyers attempted to make a virtue of conditions that disappointed most other writers by arguing that the profession exemplified the characteristic and beneficial ‘fluidity’ of early American society, in comparison with that of the Old World. Therefore, by traditional English standards, colonial America ‘probably did not produce a single lawyer who was deeply learned ... Americans tended to be smatterers and admirers of the law, never its high priests’.3 Of late, along with a growing ‘new’ history of early American law,4 the scholarly literature on colonial lawyers has begun to point in a diff­ erent direction. What follows is intended as an essay in synthesis, aiming toward a broad perspective on patterns of professional develop­ ment that neither foreshadowed the ‘rise’ of the legal profession in the United States — to the position of unique importance that so impressed de Tocqueville5 — nor precisely reflected early modem European models. It now appears that by the middle of the eighteenth century, after many decades of uncertainty, some groups of American lawyers had visibly emerged as self-conscious new elites, oriented toward sources of imperial authority sustaining legal professionalism in the mainland colonies. To that extent lawyers may be said to have figured 129

130 The Legal Profession in Colonial North A merica in the process sometimes called ‘anglicisation’, by which aspiring col­ onists sought to extricate themselves from customary social environ­ ments that had evolved in the seventeenth century.6 Nevertheless, since the legal apparatus of empire still amounted to little more than an over­ lay on localised habits of colonial governance, most professionalising lawyers in pre-revolutionary America were ambiguous in their affili­ ations with officialdom representing the mother country. The contours of professional commitment were imprecise in the years before the imperial crisis of the 1760s and 1770s. Considered ‘counterfactually’, without regard to the tumultuous events that followed passage of the Stamp Act, the colonial legal pro­ fession at mid-century may have been destined to achieve standing as a kind of provincial mandarinate, defined by and responsive to cues from Whitehall. That this did not happen has to be explained, of course, by the stresses of transatlantic politics. In turn, those stresses may have been aggravated by the professional circumstances of elite colonial lawyers in transition toward a collective identity for which there were few precedents or guidelines.

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For most of the seventeenth century, mainland British America con­ sisted of isolated settlements trying to frame law without the help of lawyers. Especially in Puritan colonies, this was a situation that arose out of ideological preference as much as pragmatic necessity. In New England’s early years, it was mainly clergymen who supplied the essen­ tials of legal doctrine. Although such secular leaders as John Winthrop and Thomas Dudley had been students of law in England, a few mini­ sters had legal backgrounds too. Most probably would have agreed with the Reverend Thomas Hooker of Connecticut that fundamentals of government should conform to ‘the practice of the Jewish Church directed by God, Deut. 17: 10, 11; II. Chron. 19’.7 In 1636, at the re­ quest of legislators in Massachusetts eager to clarify the muddy condi­ tions of an infant jurisdiction, the Reverend John Cotton drew up a code known as ‘Moses, his Judicials’. This was not adopted at the time, but some of its hebraicised content resurfaced in the Body of Liberties formulated a few years later by the Reverend Nathanial Ward, whose qualifications for the task included English legal training. Ward’s code seems not to have been enacted, technically, to avoid the appearance of disharmony with the laws of the mother country; but many of its provi­ sions were then recycled into the Laws and Liberties of 1648, which in­ fluenced legislation in other Puritan colonies. Legislators in Massachu­ setts pointed out that ‘in four hundred years’ Englishmen ‘could not so

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compile their laws’. At last it had been done, not coincidentally, by a ‘poor colony’ that was ‘unfurnished of lawyers and statesmen’.8 Almost offhandedly, seventeenth-century New Englanders had achieved the very programme of legal reform that some of their co­ religionists in the mother country sought but never managed to imple­ ment. Reformers in England spoke ambitiously of plans to simplify and decentralise the labyrinthine judicial structures of the nation, to reduce its laws ‘into the bigness of a pocket book’, and to regulate if not abolish the legal profession. All this, presumably, would make justice cheaper and more accessible to the ordinary citizen. Lawyers, among others, were able to block most proposals along such lines in the mother country, but in seventeenth-century Massachusetts and other Puritan colonies imitating its example the boldest of legal dreams became fact.9 There was a unitary court system in the Bible Common­ wealth; county courts handled the bulk of civil business as well as most routine crimes. The mystifying niceties of English legal procedure tended to fall away, leaving just those basics that might be mastered by lay court clerks from perusal of a manual like Dalton’s Justice of the Peace. Judges and juries mixed matters of fact and matters of law. According to Massachusetts statute, a jury that was not ‘clear’ regard­ ing a case might choose ‘in open court to advise with any man they shall think fit to resolve or direct them, before they give in their ver­ dict’. In such a judicial forum, suitable for small-scale village life, pro­ fessional lawyers seemed not only undesirable but unnecessary. If in need of assistance managing a case, a litigating colonist could turn to an untrained relative, friend or business agent. For a time Massachusetts prohibited anyone from accepting payment to represent another in court; not until 1673 was there formal recognition of the right to prac­ tise law in the colony, and then fees were strictly regulated. Those men who took up this invitation before the end of the century lacked enough clients for full-time professional work.10 Unsavoury characters for the most part, they did little to recommend the profession to disapproving New Englanders. An inauspicious beginn­ ing had been made as early as the 1620s, when ‘a kind of pettifogger’ named Thomas Morton scandalised Plymouth Colony by setting himself up as ‘Lord of Misrule’, to cavort around a maypole with drunken com­ rades and Indian women. When faced with arrest, Morton further irri­ tated the authorities by insisting on his legal rights as an Englishman. A decade later, an English solicitor named Thomas Lechford arrived in tire Massachusetts Bay Colony and was soon in trouble for pleading with a jury out of court; subsequently he made a nuisance of himself by

132 The Legal Profession in Colonial North A merica

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criticising the informality characteristic of local legal proceedings.11 By the turn of the century, it seems, the quality of professional personnel in Massachusetts had improved only marginally. Some county practi­ tioners were barely literate. Boston, the expanding commercial centre of the region, attracted a few trained lawyers, most of whom conspic­ uously embraced the Church of England. It was perhaps symptomatic of professional conditions in late Puritan New England that the prose­ cutor in the notorious witchcraft trials of Salem, in 1692, was a man who had apparently read law in an English attorney’s office. The trials came to a halt only after the learned clergymen of the colony, led by the Reverend Increase Mather, intervened to make a case against the admissibility of ‘spectral’ testimony, on the grounds that evidence of alleged witchcraft ‘ought to be as clear as in any other crimes of a capital nature’.12 Puritan clergymen, indeed, had no reason to appreci­ ate the gradual appearance of lawyers in their society. In their sermons they lamented the rising litigiousness of New Englanders, as land be­ came less plentiful and trade accelerated. Ideals of Christian brother­ hood were eroding, and surely professional lawyers would only make things worse. In 1710 the Reverend Cotton Mather, Increase’s son, observed pointedly that legal practitioners should be not only ‘skilful’ but ‘wise to do good’, which required ‘inviolable respect unto the holy and just and good laws of the Infinite God’.13 Elsewhere during the seventeenth century, in colonies south of New England, there were only occasional glimpses of legal professionalism. The Quakers who founded Pennsylvania were even more intensely mindful than Puritans of the ‘blackness’ that enveloped lawyers, as George Fox had put it, and so laboured to settle all disputes in their local and monthly meetings by means of ‘Gospel order’. The secular courts of that colony, by a statute of 1701, were told to insist on ‘brevity, plainess and verity, in all declarations and pleas’.14 The colony of New York, following the English conquest of 1664, was beset by legal confusion as English courts prudently allowed Dutch residents to retain many of their Roman civil usages. Eventually, as English settlers poured into the colony, it became feasible to suppress most Dutch forms and a small group of lawyers emerged with a professional base in New York City. In 1698, however, the royal governor there reported contemptuously that ‘almost all’ were men of ‘scandalous character’ — one a dancing master, another a convicted blasphemer — who ‘man­ gled’ the meanings of ‘noble English laws’.15 Professional legal practice was somewhat more developed but far from well established in the seventeenth-century Chesapeake colonies.

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The Legal Profession in Colonial North America

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In Virginia, at the outset, there were turbulent local figures who ex­ pressed disdain for ‘men of law’ representing the interests of a distant commercial company. Later, intermittent efforts to license practi­ tioners in the colony were undone by political struggle between royal governors and local planters, who feared that a professionalised bar would strengthen executive authority. There were also the usual mutt­ erings that lawyers stirred up and prolonged expensive litigation. Hence a Virginia statute of 1658 instructing courts to render judgement ‘according as the right of the cause and the matter shall appear unto them, without regard of any imperfection, default or want of form in any writ, return, plaint or process’. As in New England, so in the Chesa­ peake region, untrained county-court clerks pragmatically simplified English legal procedures by reference to a few key manuals. Unlike the New Englanders, however, Chesapeake planters were probably influ­ enced in this respect less by ideology than by logistics. Since settle­ ment in the region was dispersed, as a consequence of runaway tobacco production, a litigant might be greatly inconvenienced if he produced witnesses and took a case to court only to have to turn around and go home on account of technicalities. Toward the end of the century, seemingly to a greater extent in Maryland than in Virginia, coteries of English-trained lawyers had begun to gather around institutions of pro­ vincial government. Elements of ceremony and procedural formality were evident in court proceedings of the Chesapeake capital towns. Out in the counties, on the other hand, justice had a rowdy frontier look. Local planters, many of them not only untrained in the law but uncouth and disorderly, represented themselves and their neighbours before judges of like class and temperament. Courtroom brawls were not uncommon.16 Overall, the circumstances of the legal profession in the mainland colonies before 1700 are nicely summarised by the example of one John Luke, of Virginia’s Northampton county, who was said to keep two silk legal gowns stored with great care in a box, having no oppor­ tunity to wear them.17 Professional aspirations were discernible, here and there, but the social context was as yet unreceptive to the formalis­ ation of legal practice. Conditions changed rapidly over the next few decades. Almost every­ where, the effects were felt of more elaborate commercial and political connections with the mother country. Overlaying the localised devel­ opment of early American law and society, from the late seventeenth century onwards, was an expanding programme of imperial govern-

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ance that left its mark on legal practice in the mainland colonies. Most important were English attempts to reorganise colonial court struc­ tures in accordance with a centralised model of judicial administration. Although implementation was uneven, imperial officials moved more or less consistently in most colonies to try to consolidate county-court systems under the supervisory authority of supreme provincial tri­ bunals that combined the functions of the royal courts at Westminster. Normally, in substantial cases, appeals would lie to royal governors and their councils and thence perhaps to the Privy Council in the mother country, which for its part heeded recommendations of the Board of Trade in disallowing colonial statutes designed to keep control of legal decision-making in local hands. As one influential English administrator later explained, it was essential to prevent judges from dispensing ‘summary and domestic justice’ that might be harmful to trade; such justice might also impede enforcement of unpopular parlia­ mentary legislation.18 Along with its general policy of judicial central­ isation, Whitehall encouraged royal governors to assert prerogative power over colonial courts. Whenever feasible politically, judges were to be appointed upon ‘the pleasure of the crown’, without life tenure; south of New England, governors further manoeuvred to establish chancery courts for the administration of equitable relief. As viceadmirals of their respective provinces, too, they selected personnel for vice-admiralty courts that in the colonies handled not only maritime disputes but issues arising from various regulatory acts of parliament.19 Whatever the long-term potential for political discord in such devel­ opments, the immediate implications for those aspiring to practise law in the colonies were favourable. Up and down the coast, it was apparent that opportunities for successful and respectable legal careers were increasing, as mercantile activity became more complex and admini­ strators tried to work out the details of transatlantic empire. Lawyers could hope to move in and out of different crown offices; the more enterprising would aim for a share of vice-admiralty practice, where the value of ships and cargoes in question determined counsel’s fees that were disproportionately high compared with the schedules estab­ lished by provincial assemblies. Imperial officials acted to promote pro­ fessionalism in law. During the first two decades of the eighteenth cen­ tury, for example, royal governors of Massachusetts used their powers of appointment to improve systematically the calibre of provincial judges, who in turn demanded greater rigour of lawyers practising in their courtrooms. By the early 1730s three well-trained English lawyers - one of whom, William Shirley, himself rose to become a royal gover-

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nor - were setting the tone of practice in Boston.20 In Virginia, toward the beginning of the same decade, an English barrister se’rving as Attorney-General finally managed to introduce a law that prohibited anyone from pleading another person’s cause without having first been examined in Williamsburg and licensed by the Governor. About the same time in Maryland, professionalising lawyers were able to win crucial support from the Lord Proprietor of the colony, acting on the advice of England’s Attorney-General, to frustrate local legislative mea­ sures that tightened regulation of fees.21 Predictably, as lawyers responded to the incentives of working with­ in newly anglicised judicial systems, colonial American law began to develop at least some of the technicality associated with common-law courts in the mother country. The trend was observable as early as 1711 in Connecticut, where a statute imposed a fine for failure to con­ form to rules of pleading. Citations of English precedent multiplied, as colonial libraries expanded to include specialised legal treatises as well as basic manuals. Especially in the southern colonies, the forms of legal actions were more likely than before to imitate the models that had evolved in the royal courts at Westminster.22 Even in a backwater colony, by the 1730s a semblance of procedural rigour was expected. In that decade the General Court of North Carolina reversed the judge­ ment of a county court because the plaintiffs writ called on the defen­ dant to answer one kind of action but his declaration described dam­ ages appropriate to another; in another North Carolina case of the 1730s, a bench of county-court judges listened patiently to lengthy pro­ cedural arguments until they were satisfied that they ‘fully understood’ the issues, then ultimately reversed their own judgement, in part because the verdict and record of the case were ‘uncertain and wanted form’. After mid-century, particularly in more sophisticated jurisdic­ tions, imperial officials urged lawyers to adopt the ceremonial trappings of the profession in the mother country. In 1762 Chief Justice Thomas Hutchinson of Massachusetts ordered that judges and practitioners wear the appropriate English robes and gowns. Two years later, the Supreme Court of Judicature in New York made similar arrangements, observing that it was the ‘usage of most of the civilized nations in Europe to dis­ tinguish the different orders of men in the learned professions by their dress’.23 Little such encouragement was needed by then, however, as elite professionals grew in numbers and self-confidence. Gradually, at different times in different places, practitioners native to the colonies came to take over business from those born in the mother country.

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latter, led by Andrew Hamilton and Tench Francis, continued to domi­ nate the Philadelphia bar through the decades preceding mid-century; but by the 1740s in Boston two Harvard graduates of undistinguished family origin, Jeremiah Gridley and Edmund Trowbridge, enjoyed flourishing legal practices and provided office training for a new gener­ ation of home-grown lawyers. By the next decade it had become clear to sons of the New England gentry that a career in law might well be compatible with elevated social rank; through law, one might hope to ‘get on the establishment’ as well as earn a professional income approach­ ing or perhaps even exceeding £1,000 annually.24 Elsewhere, much the same perception prevailed, as the infiltration of young gentlemen into the profession enhanced its status for others of like background. Some, most often from southern colonies, travelled to the mother country for the prestige of training at the inns of court, but this was by no means a social necessity; except in the cosmopolitan environment of Charleston, South Carolina, they did not set a standard. There was no mistaking the new attractiveness of legal practice in the colony of New York, for example, when in the 1740s a young man named William Livingston — brought up in ‘ease and affluence’ on Livingston Manor, home of a great provincial family — chose after graduating from college to enter law through the route of local apprenticeship.25 Young colonists opting for legal careers, whether or not they were recruited from the gentry classes, might be motivated by the need to legitimise fully their vocational decisions. To enlarge the dignity of the profession and distinguish themselves ostentatiously fron the mass of local practitioners, they championed the cause of reform, in ways that harmonised with the wishes of imperial administrators. So, in his home town of Braintree, Massachusetts, John Adams tried to suppress ‘dirty and ridiculous litigations’ fomented by a ‘multiplicity of petty foggers’. So, in New York, William Livingston attacked unschooled ‘low char­ acters’ who would arise out of ‘obscurity and silence’ to present them­ selves as ‘sage and infallible oracles of the law’. So, in Virginia, elite lawyers complained of ‘ignorant pratlers’ practising in the countryside; the ‘known rules’ embodied in English common law were ‘not within the reach of every common capacity’. Proposals abounded, some imple­ mented by the eve of the revolutionary crisis, to improve the educa­ tional credentials of lawyers and judges. Elite lawyers organised them­ selves into associations that sought to regulate admission to the bar, reduce inefficiency in the courts, and prevent competitive fee-cutting.26 Law, as a professional career, would be set apart from those customary structures of governance that seventeenth-century colonists had so

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valued. Law would reflect the cultural perspective of provincial elites whose identity had been shaped by involvement in the commercial and political networks of empire. It was true that such a programme of reform could not easily be legislated for the hinterland. Young Patrick Henry, according to legend, obtained a licence to practise law by virtue of his ‘natural reason’, after no more than six weeks perusing Coke on Littleton and the Statutes at Large. As another young lawyer of better pedigree discov­ ered to his chagrin, a college degree did nothing to relieve the ‘jam and bustle’ of folk justice in the North Carolina backwoods.27 Still, if all else failed, the worth of the profession could be affirmed symbolically through cultivation of legal learning in the centres of colonial practice. Perhaps it would help to establish a professorship of law at the College of William and Mary, as one Virginian urged in 1773, devoted as he was to the study of legal ‘science’. In Massachusetts, Jeremiah Gridley formed a ‘Sodalitas, a club of friends’, whose readings and discussions led John Adams to undertake ‘A Dissertation on the Canon and Feudal Law’. In New York, William Livingston included such subjects as his­ tory and divinity in the course of study by which each of his clerks was supposed to become not only a ‘complete lawyer’ but a ‘scholar’. And Livingston was a prime mover in founding a kind of legal seminar known as ‘The Moot’, in imitation of such a forum at Gray’s Inn in the mother country. Little wonder, then, that one New Yorker at the time — although no admirer of lawyers — had to concede that few other men in the province could lay claim to a ‘literature’. There was an emblem of distinction.28 Yet unresolved contradictions within the colonial environment, around and after mid-century, hindered fulfilment of the highest professional aspirations in law. For one thing, even where the titles designating the ranks of the English profession were in use, there simply was insuf­ ficient legal business available in the colonies to support functional divi­ sions of practice along traditional lines. The formal training of a col­ onial barrister would not differ from that of an attorney. On the basis of lengthier practical experience, barristers might have the exclusive right to practise in courts of superior jurisdiction, but normally prom­ inent colonial lawyers had no choice but to engage in most of the petty work — such as debt collection — that occupied inferior practi­ tioners in the mother country. Hence John Adams’ observation that he had to perform ‘the duty of a counsellor, a lawyer, an attorney, a solic­ itor, and even of a scrivener’. Just to obtain one’s fees from such an

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unspecialised and dispersed practice was tedious and unedifying. Thomas Jefferson, ever offended by the grinding realities of legal work, barely received 50 per cent of what was owed him.29 Then, too, the standing of lawyers in provincial society was not quite high enough to suit their ambitious purposes. In southern colonies lawyers were conspicuous alongside merchants and others hoping to push their way into the gentry class by purchasing cheap in­ terior land. Established planters affecting to be natural gentlemen, whether trained in law or not, might feel threatened by such intruders and might summon up traditional rhetoric by way of self-defence. One reason for a planter to study law, indeed, was that it was then un­ necessary ‘to be dependent on every dirty pettyfogger’; a legally trained planter would not ‘stand in need of mercenary advisors but... be able to advise and assist his friends, relatives and neighbours’. This was not a formula for professional self-esteem. Hence, perhaps, the nagging ambivalence of some leading southern lawyers, whose pro­ fessional incomes in any event were apt to be undependable.30 As for the major port towns of the northern colonies, there was lingering sus­ picion among some wealthy merchants of the pretensions and costly machinations associated with lawyers, especially if — as in New York — much of the elite sector of the profession seemed to be allied with large landed interests.31 In New England, above all, there was still an important rival pro­ fession to contend with. Many clergymen there had experienced erosion of status by the middle of the century, not least from the effects of ram­ pant inflation on the purchasing power of their salaries. Some had frankly come to admit that a true gospel minister could no longer be ‘considered as a gentleman’. In 1772 the President of Harvard noted ruefully that few young men with ‘fortunes and the best means’ were inclined to­ ward the ‘sacred function’. Still, in Boston if nowhere else, it remained possible for a ‘reverend orator’ to sport ‘a diamond ring and a white handkerchief, and the aura of superior virtue that surrounded the clerical calling continued to make an impression on scrupulous New Eng­ landers.32 After the Great Awakening swept through the region in the early 1740s, ancient Puritan prejudices against the legal profession re­ vived. While people ‘do as they would be done by’, preached the Reverend Joseph Bellamy in 1762, ‘there seldom happens any affair that needs to be disputed at the bar’. John Adams was not by temperament attracted to evangelical Christianity, but — like many Harvard graduates of his era — he could only bring himself to enter the law after a protracted vocational crisis. “The study and practice of law,’ he explained in his

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tensely self-aware diary, ‘I am sure does not dissolve the obligations of morality or of religion.’ Here, internalised, was the clerical norm of professionalism propounded half a century earlier by the Reverend Cotton Mather.33 Possibly of most direct consequence, among circumstances that complicated the collective purposes of elite anglicised lawyers in eighteenth-century colonial America, was the apparent inability of the British imperial system to absorb the greater number of them. The apparatus of empire, it seems, did not yet provide enough good jobs to entice most members of the profession into signing up loyally as allies of prerogative. Perhaps for this reason as much as any other, around the turn of the century lawyers began to make a significant mark in elective colonial politics. Because ‘the road both to power and wealth passes entirely through the channel of the people in this province,’ reported the Governor of Pennsylvania, ‘our lawyers are such very prudent gentlemen that they will not hazard their interest with them . . . ,34 For professional lawyers to make a go of being popular poli­ ticians, however, might necessitate some special efforts on their part, connected as so many were with both imperial authority and affluent clienteles. In 1761 the printer of a German-language newspaper in Pennsylvania pointed out how harmful it could be to elect lawyers to the provincial assembly, ‘because what is to their profit is often to the farmers’ loss’. Further, as legislators, lawyers vastly complicated statutes that in former times had been ‘straight and simple with nothing much to discuss about’. It was surprising, then, that ‘some people in the distant counties’ were ‘so much in love with the city-people’. Out in the hinterland there was no great upsurge of enthusiasm for learned pro­ fessional leadership. Localistic antagonism toward lawyers, often tinged by pietism, was much in evidence. One cautionary tale printed in the Virginia Almanac of 1762 concluded with a line that elegantly outlined the larger geography of anti-professional sentiment: ‘I know not . . . what distinction there may be made in London; but I am sure, by sad experience, we in the country know no difference between a lawyer and a liar.’35 To achieve success on the political stage, John Adams confided to his diary, he would have to ‘attempt some uncommon, unexpected enterprise in law*. He had to ‘look out for a cause to speak to, and ... cut a flash, strike amazement, to catch the vulgar’.36 The most appeal­ ing strategy for anyone in search of opportunities for grand popular performance, as it happened, was to challenge prerogative power. Where oratory for the people and professional opinion might converge was in

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opposition to the chancery jurisdiction of royal governors who lacked legal training. This was the configuration of political events underlying the journey of Philadelphia’s Andrew Hamilton to New York in 1735 to secure an acquittal in the seditious libel prosecution of John Peter Zenger, printer for an anti-gubernatorial faction. ‘Is it not surprising’, Hamilton asked the jury, ‘to see a subject, upon his receiving a commis­ sion from the King to be a governor of a colony in America, immedi­ ately imagining himself to be vested with all the prerogatives belonging to the sacred person of his Prince?’ Hamilton triumphed in the partic­ ular instance, to the applause of an assembled throng, although it was obvious to professional lawyers — among whom he was happy to count himself — that he had neither cited nor established any sound precedent for ‘liberty of the press’. This mattered little to the crowd. ‘If it is not law,’ exclaimed one of his admirers, ‘it is better than law, it ought to be law, and will always be law wherever justice prevails.’ Two years later, a disgusted barrister in Barbados published a stinging critique of Hamil­ ton’s argument. One of his purposes, he explained, was to preserve ‘the dignity of the profession of the law in these remote parts of the British dominions; and prevent its learned professors in England . . . from suspecting that all their American brethren use the like arts to gain popularity’.37 Some three decades after the Zenger case, in New England, there was revealed even more emphatically the curious logic of colonial politics that led some professionalised lawyers to espouse popular principles in the name of liberty. Around the crowded port town of Boston, one man in particular was engrossing power not only in the political arena but within the narrower legal world as well. Thomas Hutchinson served as both Lieutenant Governor and Chief Justice of the province, having attained the latter position in 1760 without legal training and only minor judicial experience. James Otis, whose father had been passed over for appointment to the Superior Court, vowed that he would ‘set the province in a flame’. Although Hutchinson was prepared to support professionalising policies in Massachusetts, he made a point of trying to decide cases according to principles of ‘conveniency’. Further, his extensive clan was taking over many other offices.39 So in 1765 John Adams sat down to compose an angry closet oration in his diary, the Ciceronian style of which suggests that this driving provincial lawyer saw himself in a climactic struggle with nothing less than a latter-day American version of Catiline: Has not his Honour . . . discovered to the people in innumerable

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instances, a very ambitious and avaricious disposition? Has he not grasped four of the most important offices in the province into his own hands? Has not his brother-in-law Oliver another of the greatest places in Government? Is not a brother of the Secretary, a judge of the Superior Court? Has not that brother a son in the House? Has not his secretary a son in the House, who is also a judge in one of the counties? Did not that son marry the daughter of another of the judges of the Superior Court? Has not the Lieutenant Governor a brother, a judge of the pleas in Boston? And a namesake and near relation who is another judge? Has not the Lieutenant Governor a near relation who is register of his own court of probate . . . ? As question followed question, Adams’ apparent fury increased. ‘Is not this amazing ascendancy of one family,’ he concluded, ‘foundation sufficient on which to erect a tyranny? Is it not enough to excite jealousies among the people?’39 Here, then, was the setting for the fast-moving events of the revol­ utionary decade. In such a context, a transatlantic crisis took distinctive shape and eventuated in dissolution of the very empire that had nur­ tured colonial legal elites.

Although professional lawyers led the movement for American indepen­ dence, most of those who became revolutionaries did so with unease. Successful practitioners in some colonies, particularly those associated with the imperial establishment, tended to hold back or to side openly with the mother country. Even younger men advocating resistance were reluctant to endorse radical demands that judges do business as usual in flagrant violation of the Stamp Act, although closing down the courts sharply reduced professional income. Leading patriot lawyers had to wrestle, too, with the uncertainties of a shifting constitutional argu­ ment that ignored or contradicted orthodox principles of public law embedded in English constitutional discourse since the Glorious Revolution. It was painful to some to be mounting a quasi-legal assault on the system of empire that had hitherto defined their professional consciousness. The ironies of the situation were unavoidable.40 In his Letters from a Farmer in Pennsylvania, the most widely circu­ lated revolutionary tract before Tom Paine’s Common Sense, John Dickinson chose to survey the political scene at the end of 1767 with­ out identifying himself as a professional lawyer, and spoke darkly of the ‘storm’ and ‘calamities’ that might ensue if protest were not ‘sedate’ as well as fervent. His concern was not unjustified. Before the decade

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was over, a New York election campaign would resound to the slogan — ‘no lawyer in the Assembly’. Regulators in the backcountry of North Carolina would soon echo that cry: ‘There should be no lawyers in the province, they damned themselves if there should.’ And an angered citizenry in Monmouth county, New Jersey, would denounce ‘the uncircumcised 1 — yrs’ as ‘private leaches, sucking out our very hearts blood’.41 If professionalised lawyers did not make haste to lead the revolution, possibly they would be numbered among its victims. Soon enough, remaining doubts were overcome by the rush of events, as English politicians tried heavy-handedly to suppress resis­ tance. By 1775 there was no turning back, and legal ideologues of the revolutionary movement had finally formulated the theory that would accompany the last necessary steps towards independence. Terms like ‘British Empire’, argued John Adams, were tire language of ‘court syco­ phants’. There was no empire and had never been. The first colonies in the seventeenth century had founded separate new societies outside the realm and then voluntarily reassociated with the king, loyalty to whom was what loosely linked the English-speaking world. If the king and his ministers persisted in breaking the terms of agreement by which this re­ union had supposedly been achieved, there was no reason for the main­ land American ‘states’ to hesitate in going their own way once again.42 What would happen afterwards was a question that worried many in the profession. In June of 1776, at Ipswich, the judges of a reconsti­ tuted Massachusetts Superior Court exhibited their new commissions and delivered a formal grand jury charge composed by Chief Justice John Adams, then in Philadelphia representing his state. It was ‘an appeal to the conservative principles of the people’, demanding enforce­ ment of the laws to preserve ‘peace, virtue, and good order’. Indepen­ dence was indeed something of a gamble for professional American law­ yers. Although in the end the revolution would lay the groundwork for their later eminence in the political life of the United States, this was not an outcome that could be confidently predicted.43 Their pro­ fessional agenda had been disrupted by events in the 1760s and 1770s. If, at the beginning of the crisis, elite colonial lawyers had been able to look forward to the possibility of gaining more varied and prestigious honours within the empire; if, for example, there had been time for Whitehall to respond to suggestions that titles be conferred systemati­ cally on prominent Americans and a supreme appellate court estab­ lished for the mainland colonies44 — then a different pattern of poli­ tical developments following passage of the Stamp Act may readily be imagined.

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Notes 1. Anton-Hermann Chroust, The Rise of the Legal Profession in America (2 vols., Norman, Oklahoma, 1965), vol. 1, p. 332. Despite inaccuracies and the limitations of its perspective, this book is often usefully informative, particularly as a guide to miscellaneous secondary works. See also Charles Warren, A History of the American Bar, 2nd edn (New York, 1966). 2. For a summary of the literature on the legal profession in the United States, see Stephen Botein, ‘Professional History Reconsidered’,American Journal of Legal History, vol. 21 (1977), pp. 60-79. 3. D.J. Boorstin, The Americans: The Colonial Experience (New York, 1958), Chs. 31-3. 4. It should be noted, however, that one major ‘new’ work, W.E. Nelson, Americanization of the Common Law: The Impact of Legal Change on Massa­ chusetts Society, 1760-1830 (Cambridge, Mass., 1975), stresses the persistence of ‘communal’ law, in contrast to the approach outlined below. 5. Alexis de Tocqueville, Democracy in America, ed. Phillips Bradley (2 vols., New York, 1945), vol. 1, Ch. 16. 6. The key discussion here, which informs the analysis below, is J.M. Murrin, "The Legal Transformation: The Bench and Bar of Eighteenth-Century Massa­ chusetts’ in S.N.Katz (ed.), Colonial America: Essays in Politics and Social Devel­ opment (Boston, 1971), pp. 415-49. 7. See R.B. Morris, Studies in the History of American Law with Special Reference to the Seventeenth and Eighteenth Centuries (New York, 1930), pp. 21-41. 8. T.L. Wolford, ‘The Laws and Liberties of 1648’ in D.H. Flaherty (ed.); Essays in the History of Early American Law (Chapel Hill, NC, 1969), pp. 147-85; and sec G.L. Haskins and S.E. Ewing, ‘The Spread of Massachusetts Law in the Seventeenth Century’ in ibid., pp. 186-91. 9. G.B. Warden, ‘Law Reform in England and New England, 1620 to 1660’, WMQ, 3rd set., vol. 35 (1978), pp. 668-90. 10. Wolford, ‘Laws and Liberties’, pp. 153-69; Murrin, ‘Legal Transformation’, pp. 417-19; Warden, ‘Law Reform’, pp. 679-80; G.E. Woodbine, ‘The Suffolk County Court, 1671-1680’ in Flaherty (ed.), Essays, pp. 192-203. 11. William Bradford, Of Plymouth Plantation, 1620-1647, ed. S.E. Morison (New York, 1952), pp. 204-10; Wolford, ‘Laws and Liberties’, pp. 160-1. 12. Murrin, ‘Legal Transformation’, pp. 419-23; K.B. Murdock, Increase Mather: The Foremost American Puritan (Cambridge, Mass., 1925), Ch. 17; and see Increase Mather, Cases of Conscience Concerning Evil Spirits Personating Men ... (Boston, 1693). 13. Perry Miller, The New England Mind: From Colony to Province (Cam­ bridge, Mass., 1953), Chs. 2 and 3; D.T. Konig, ‘Community Custom and the Common Law: Social Change and the Development of Land Law in SeventeenthCentury Massachusetts’, A JLH, vol. 18 (1974), pp. 137-77; Cotton Mather, Bonifacius (Boston, 1710), p. 158. 14. Chroust, Rise of the Legal Profession, vol. 1, pp. 206-13; F.B. Tolles, Meeting House and Counting House: The Quaker Merchants of Colonial Phila­ delphia, 1682-1763 (Chapel Hill, NC, 1948), Chs. 4 and 6; C.K. Seglem, ‘A Legal History of Early Pennsylvania, 1681-1701’, unpublished senior thesis, Princeton University, 1968; Morris, Studies, p. 56. 15. Julius Goebel Jr, ‘The Courts and the Law in Colonial New York’ in Flaherty (ed.), Essays, pp. 245-77; H.A. Johnson, ‘The Advent of Common Law in Colonial New York’ in G.A. Billias (ed.), Law and Authority in Colonial America (Barre, Mass., 1965), pp. 74-91; M.M. Klein, ‘From Community to

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Status: The Development of the Legal Profession in Colonial New York’, New York History, vol. 60 (1979), p. 136. 16. P.A. Bruce, Institutional History of Virginia in the Seventeenth Century, 2nd edn (2 vols., Gloucester, Mass., 1964), vol. 1, Part III; Morris, Studies, p. 47; Joseph H. Smith, The Foundations of Law in Maryland: 1634-1715’ in Billias (ed.), Law and Authority, pp. 92-115; A.F. Day, ‘Lawyers in Colonial Mary­ land, 1660-1715’,4JLZf, vol. 17 (1973), pp. 145-65. On the profession in Virginia generally, see A. McKinley Smith, ‘Virginia Lawyers, 1680-1776: The Birth of an American Profession’, unpublished PhD dissertation, John Hopkins University, 1967. Mainly, however, this chapter relies on work by A.G. Roeber: ‘Faithful Magistrates and Republican Lawyers: The Transformation of Virginia’s Justices of the Peace, 1705-1805’, unpublished PhD dissertation, Brown University, 1977; ‘Justices and Lawyers in Virginia, 1732-1774: The Meaning and Legacy of a Legal “Profession” ’, unpublished paper, Shelby Cullom Davis Center for Historical Studies, Princeton University, 1979. Revised, Roeber’s work will be published as Faithful Magistrates and Republican Lawyers: Creators of Virginia Legal Culture, 1680-1810 (Chapel Hill, NC, forthcoming in 1981), and is cited thus below. 17. Bruce, Institutional History, vol. 1, p. 577. 18. J.H. Smith, ‘Administrative Control of the Courts of the American Planta­ tions’ in Flaherty (ed.), Essays, pp. 281-335; and see generally J.H. Smith, Appeals to the Privy Council from the American Plantations (New York, 1950). 19. Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, Mass., 1967), pp. 105-6; S.N. Katz, The Politics of Law in Colonial America: Controversies over Chancery Courts and Equity Law in the Eighteenth Century’, Perspectives in American History, vol. 5 (1971), pp. 263-4; Carl Ubbelohde, The Vice-Admiralty Courts and the American Revolution (Chapel Hill, NC, 1960), Ch. 1. 20. M.M. Klein, ‘The Rise of the New York Bar: The Legal Career of William Livingston’ in Flaherty (ed.), Essays, pp. 401-2; Murrin, ‘Legal Transformation’, pp. 423-6. 21. Chroust, Rise of the Legal Profession, vol. 1, pp. 273-6, 255-6; and see Roeber, Faithful Magistrates, forthcoming. 22. Morris, Studies, p. 48n; L.M. Friedman, A History of American Law (New York, 1973), pp. 50-1,56-7. 23. P.M. McCain, The County Court in North Carolina before 1750 (Durham NC, 1954), pp. 60-1; Murrin, ‘Legal Transformation’, p. 438; Douglas Greenberg, 'Crime and Law Enforcement in the Colony of New York, 1691-1776 (Ithaca, NY, 1974), pp. 223-4. 24. Chroust, Rise of the Legal Profession, vol. 1, pp. 223-40; Murrin, ‘Legal Transformation’, pp. 427-32. For a general perspective on lawyers’ incomes, in relation to those of other occupations, see J.T. Main, The Social Structure of Revolutionary America (Princeton, NJ, 1965), Chs. 3-4. 25. Chroust, Rise of the Legal Profession, vol. 1, pp. 303-10, and see H.P. Canady, ‘Gentlemen of the Bar: Lawyers in Colonial South Carolina’, unpublished PhD dissertation, University of Tennessee, 1979; Klein, ‘Rise of the New York Bar’, pp. 394-5. 26. Diary and Autobiography of John Adams, ed. L.H. Butterfield (4 vols., Cambridge, Mass., 1961), vol. 1, pp. 136-7; Virginia Gazette, 3-10 October 1745, on which see Roeber, Faithful Magistrates, forthcoming; Klein, ‘Rise of the New York Bar’, pp. 396-7, 414-15; Murrin, ‘Legal Transformation’, pp. 438-40. 27. Clement Eaton, ‘A Mirror of the Southern Colonial Lawyer: The Fee Books of Patrick Henry, Thomas Jefferson, and Waightstill Avery’, WMQ, 3rd ser., vol. 8(1951), pp. 521,524-7. 28. Virginia Gazette (Rind), 30 December 1773, on which see Roeber, Faithful

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Magistrates, forthcoming; Legal Papers of John Adams, eds. L.K. Wroth and H.B. Zobel (3 vols., Cambridge, Mass., 1965), vol. 1, p. Ixxv; Klein, ‘Rise of the New York Bar’, pp. 415-16; P.M. Hamlin, Legal Education in Colonial New York (New York, 1939), p. 37. 29. Eaton, ‘Mirror’, p. 533. The general point here is at the heart of Boorstin’s argument in The Americans, Ch. 32 (‘The Unspecialized Lawyer’). 30. Main, Social Structure, pp. 183-5; J.P. Whittenburg, ‘Planters, Merchants, and Lawyers: Social Change and the Origins of the North Carolina Regulation’, WMQ, 3rd ser., vol. 34 (1977), pp. 215-38; Chroust, Rise of the Legal Pro­ fession, vol. 1, p. 34; Eaton, ‘Mirror’, pp. 529-33. 31. Klein, ‘From Community to Status’, pp. 151-4; Klein, ‘Rise of the New York Bar’, pp. 400-1; P.U. Bonomi, A Factious People: Politics and Society in Colonial New York (New York, 1971), pp. 210-11, 227. 32. See Stephen Botein, ‘Income and Ideology: Harvard-Trained Clergymen in the Eighteenth Century’, Eighteenth-Century Studies, forthcoming. 33. Alan Heimert, Religion and the American Mind: From the Great Awakening to the Revolution (Cambridge, Mass., 1966), pp. 179-82; Murrin, ‘Legal Transformation’, pp. 427, 430, 433-4. 34. Main, Social Structure, p. 205; Murrin, ‘Legal Transformation’, p. 433; Katz, ‘Politics of Law’, p. 271. 35. Dietmar Rothermund, The Layman's Progress: Religious and Political Experience in Colonial Pennsylvania, 1740-1770 (Philadelphia, 1961), pp. 57-8, 180; Virginia Almanac (Williamsburg, 1762), on which see Roeber, Faithful Magistrates, forthcoming. 36. Bernard Bailyn, ‘Butterfield’s Adams: Notes for a Sketch’, WMQ, 3rd ser., vol. 19 (1962), pp. 243-4. 37. Katz, ‘Politics of Law’, pp. 264, 269-70, 272, 277-82; J.H. Smith and L. Hershkowitz, ‘Courts of Equity in the Province of New York: The Cosby Controversy, 1732-1736’, AJLH, vol. 16 (1972),p. 50; A Brief Narrative of the Case and Trial of John Peter Zenger, ed. S.N. Katz (Cambridge, Mass., 1963), pp. 66, 28, 154. 38. Murrin, ‘Legal Transformation’, pp. 435-7; J.C. Miller, Sam Adams, Pioneer in Propaganda (Boston, 1936), Ch. 2; Morris, Studies, p. 170. 39. Diary and Autobiography of John Adams, vol. 1, p. 260; Stephen Botein, ‘Cicero as Role Model for Early American Lawyers: A Case Study in Classical Influence’, Classical Journal, vol. 73 (1977-8), pp. 314-18. 40. E.C. Surrency, The Lawyer and the Revolution’, AJLH, vol. 8 (1964), pp. 125-35; M.M. Klein, ‘New York Lawyers and the Coming of the American Revolution’, New York History, vol. 55 (1974), pp. 383-407; Murrin, ‘Legal Transformation’, pp. 442-4; James Kirby Martin, Men in Rebellion: Higher Governmental Leaders and the Coming of the American Revolution (New Bruns­ wick, NJ, 1973), Ch. 3; Bailyn, Ideological Origins, Ch. 5. 41. Letters from a Farmer in Pennsylvania . . . (Boston, 1768), pp. 30-4; Bonomi, Factious People, Ch. 7; Whittenburg, ‘Planters, Merchants, and Lawyers’, p. 237; Liberty and Property, without Oppression (n.p., 1769), pp. 6-7. 42. J.H. Kettner, The Development of American Citizenship, 1608-1870 (Chapel Hill, NC, 1978), pp. 161-3. 43. J.D. Cushing, ‘The Judiciary and Public Opinion in Revolutionary Massa­ chusetts’ in Billias (ed.), Law and Authority, pp. 174-5. See also Main, Social Structure, pp. 205, 212-13; G.S. Wood, The Creation of the American Republic, 1776-1787 (Chapel Hill, NC, 1969), Ch. 10; G.W. Gawalt, The Promise of Power: The Emergence of the Legal Profession in Massachusetts, 1760-1840 (Westport, Conn., 1979). 44. A.M. Schlesinger, ‘The Aristocracy in Colonial America’, Proceedings of

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the Massachusetts Historical Society, vol. 74 (1962), pp. 18-19; Smith, Appeals to the Privy Council, p. 208.

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7

THE ADVOCATES, THE LAW AND THE NATION IN EARLY MODERN SCOTLAND Alexander Murdoch

Lawyers and the law have at times loomed large in Scotsmen and Scots­ women’s perceptions of their nation and their past. Scotland’s distinc­ tive legal system is often cited as an important part of the institutions which separate Scotland from the rest of the United Kingdom, and sometimes nationalists add it to their litany of national assets. The law and the judiciary have carried most of Scotland’s claim to separateness in constitutional terms, at least before the explosive growth of the civil service in the twentieth century; the monarchy had migrated south in 1603, the Parliament had been absorbed into the new Parliament of the United Kingdom in 1707 — only the Scottish courts and the lawyers who served them remained. There have always been those who uphold Scotland’s separateness on constitutional rather than social grounds, and to these people the law has been important for Scotland.1 Scotland since 1707 has been part of a non-federal, highly centralised state, yet certain aspects of government have always remained centred in Edin­ burgh, to a greater or lesser degree, and until the advent of the twen­ tieth-century civil servant, it was the lawyers and the Scottish legal system which made this phenomenon possible. Those who have emphasised Scotland’s separate institutions in their view of the Scottish identity — the church and the universities as well as the law and government — imply that the professional classes make Scotland Scots. And what can be more professional than the law? The study of Scots law, therefore, is bound up with the puzzling and per­ sistent question of a Scots identity in a way which makes it unique, and carries impheations which are not present in the study of other legal systems in early modern Western society. Some Scots have taken immense pride in the autonomy of Scottish law. Part of this pride has been expressed in the study of the found­ ation of Scottish legal institutions in the sixteenth and seventeenth centuries. In 1532 James V founded a College of Justice in Edinburgh with money granted by the Pope from the revenues of the Scottish Church. A central court had begun to take shape in Edinburgh during the fifteenth century, when some of the king’s council first sat regularly to dispense the king’s justice. James V and his advisers took the oppor-

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tunity presented by the advent of the Reformation in England and on the Continent to secure money from the church to institute this Court of Session as a permanent supreme court. More than a century later Charles II established a central criminal Court of Justiciary in 1672. The crown had formerly delegated criminal justice to a Lord Justice General, who continued to have the right (seldom exercised) to preside over the court. The new court was headed by a Lord Justice Clerk, with five other judges designated Lords of Justiciary. To save money the six new judges were appointed from the 14 ordinary Lords of Session, re­ ceiving an additional salary which supplemented their income as judges in the Court of Session. There were other minor courts which grew up to deal with Exchequer, Admiralty, and Consistorial (marriage and test­ ament) matters. The Court of Exchequer grew in importance after the Treaty of Union, when English revenue laws (and some English lawyers) were introduced into Scotland. These central courts were established by the crown to encourage the landed classes to forsake private warfare for litigation as a means of re­ solving their disputes. This was reflected in the composition of the Court of Session, where the appointment of ‘extraordinary lords’ from the nobility by the crown was, in Professor Hannay’s words, ‘not only a concession to conservatism, and an expedient whereby the govern­ ment was enabled to control proceedings: it was a practical confession of the fact that feudal power and ecclesiastical dignity [before the Re­ formation] must be represented on the bench, if magnates were to accept its decisions with adequate composure’.2 The rest of society re­ ceived its law from the great landed families through the feudal web of local heritable jurisdictions which persisted in Scotland until 1747. Only those who held the land, with few exceptions, could afford to appeal to the king’s courts at Edinburgh. James Vi’s attempt to intro­ duce Justices of the Peace, on the English model, failed because local lairds continued to look to local magnates to order their local society rather than do so themselves.3 In the highlands the word of the chief was law, the clan was the unit of society, and customary justice was dispensed by clan chiefs with little reference to lowland lawyers. It was the introduction of state-appointed judges on something like a local level after 1747 which broke this pattern, although it is interesting that this legal change was accomplished by the introduction of sheriffsdepute (and their substitutes) as professional judges, not by the local gentry acting in quarter session as in England.4 The foundation of legal institutions helped the evolution of a dis­ tinctive Scottish system of law. By the time the central courts were

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flourishing in Edinburgh during the second half of the seventeenth century, Scotland had produced her first great legal mind, Sir James Dalrymple of Stair, a former philosophy regent (teacher) at the Univer­ sity of Glasgow and a man steeped in the writings of Grotius, Pufendorf, and natural law. One school of lawyers and legal historians has looked back to the Age of Reason and Enlightenment as the heyday of Scots Law, when it took its distinctive shape and emphasis, becom­ ing a theoretical and philosophical construct of which the country could be proud. Lord Cooper, in his paper ‘ The Scottish Legal Tradi­ tion’, claimed that the publication of Stair’s Institutions in 1681 ‘marked the creation of Scots Law as we have since known it - an original amalgam of Roman Law, Feudal Law and native customary law, systematised by resort to the Bible, and illuminated by many flashes of ideal metaphysic’. During the eighteenth century, Cooper continued, ‘development proceeded at a steadily increasing pace with reliance upon the law of Rome and with a revival of interest in Feudal Law as a consequence of the forfeitures and redistribution of lands following upon the Jacobite rebellions’. The publication of John Erskine’s Institute in 1773, to Cooper, provided a ‘comprehensive re­ statement’ of Scots law as it had developed along its unique course.5 Since the works of Cooper and Smith appeared, Professor Stein has noted the ‘sociological’ element which entered Scots legal thinking in the eighteenth century, and modified the impact of Stair and Erskine’s works, founded as they were on the concept of natural law.6 James Robertson has also attempted to extend this sense of legal nationalism further into the past, claiming that what Lord Cooper termed ‘the Dark Age of Scottish Law’ was in fact a period of legal development in an international context, based on the heritage of church law and church courts, as Scottish law developed in direct communication with Rome during the fifteenth century.7 The law, however, is distinct from the legal profession. In the last fifteen years important research into the evolution of the legal profession in Scotland has explored the social history of Scots law, as opposed to its institutional and theoretical development.8 There had been professional lawyers, trained by the church, in fifteenth-century Scotland, but the foundation of the College of Justice in 1532 and the formation of the Faculty of Advocates as a lawyers’ guild sometime in the sixteenth century (the early minute books of the Faculty are lost) did much to develop a professional legal caste. Over the sixteenth and seventeenth centuries those who served the law made steady progress in wealth and social status. Some lawyers became

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figures of national importance in the service of the state after the departure of the Scots’ king to London in 1603, a phenomenon which reflected the growing importance of law to the state and the effect this had upon lawyers as a group. Two lawyers, Sir Thomas Hamilton and Sir Thomas Hope, built successive careers and fortunes serving the absent Stuart monarchs in the Scottish courts. Another lawyer emerged in the service of those who stood by the Scottish National Covenant of 1637: Archibald Johnstone of Warriston, who helped write it, and who eventually died for it.9 The crown used the law for its own ends, but somehow, by a process not yet explained, those with land and power in Scottish society began to settle their disputes by law rather than by private vendetta. N.T. Phillipson has suggested that what happened in sixteenth-century England began to happen in mid-seventeenth-century Scotland, quoting Lawrence Stone’s comment that ‘societies being weaned from habits of private revenge always turn to the law with in­ temperate enthusiasm’.10 It seems that the landed classes did not just accept the law and the courts; they also began to send their sons to the bar, and to Holland to be educated in civil law. In the immediate past those who went abroad to study civil law had gone to French universities, but the advent of a firmly Catholic, absolutist regime in France caused a shift to Holland. Many Scots, including Stair, travelled there during the Restoration period to escape government prosecution by the Stuarts. It appears that the number of Scots students matriculating at Dutch law schools peaked in the years 1681-1700.u They went abroad because it was con­ sidered more honourable to pass the Faculty of Advocates’ examination in civil law, which included a speech to the judges of the court of session on a title from the digest assigned by the Dean of Faculty. It was not until 1750 that advocates were required to pass an examination in Scots law. Those who chose the examination in Scots law introduced in the mid-seventeenth century did not make a speech to the judges. It was about 1750 that John Erskine began to flourish as a teacher of Scots law in Edinburgh, and sound legal education became available in Scot­ land. The Faculty of Advocates was at the head of the legal profession. Its members (there were 1509 of them between 1661 and 1840) had the right to practise before the supreme courts sitting in Edinburgh, though not all of them did so. Some became advocates because the status attached to the honour was useful to a landed gentleman, some (though not many) practised elsewhere. In 1587 there were 54 practitioners in the Faculty, which was part of the College of Justice. In 1714 there

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were about 200 members, by 1810 nearly 300. It was not until the seventeenth century that advocates began to act exclusively as pleaders before the supreme courts, a role all members of the Faculty adopted by the end of the eighteenth century.12 Also incorporated into the College of Justice in 1532 were the Writers to his Majesty’s Signet, organised as a separate society by 1594. Originally the Writers to the Signet were clerks in the office of the King’s Secretaries of State, later they dealt with the many legal docu­ ments which required the Signet Seal attached to the Secretaries’ office. Eventually they were to merge into the solicitors’ side of the legal pro­ fession, a process completed in the eighteenth century. Acts of Sed­ erunt (by the judges of the Court of Session) in 1754 and again in 1772 restricted the right to ‘manage’, ‘agent* or ‘solicit’ cases to advocates’ first (senior) clerks or Writers to the Signet. By this time there were hundreds of Writers to the Signet whereas in 1594 there had only been 13. Beneath the legal elite serving the supreme courts at Edinburgh were the local lawyers practising in inferior courts as procurators (pleaders) or writers. Those practising in the regional centres of Glasgow and Aberdeen had organised themselves into societies from an early date. This level of the legal calling is very poorly documented. We know that apprenticeship was the principle means of training, that the notary had early become a specialist, and that the term “writer’ could signify anything from a Writer to the Signet who practised in Edinburgh to someone who had received enough training to deal with local convey­ ancing work in a county town. This is an area where much research still has to be done, and should be done, for the liistory of the legal pro­ fession in Scotland outside Edinburgh remains unwritten. By the mid-seventeenth century the social gap between the Faculty of Advocates and the rest of the profession had widened. The political upheaval in Scottish history at that time coincided with the beginnings of that close connection between the law and the land which formed the social and ideological basis of the law for the next century and a half. After all, one Lord President of the Court of Session after the Restoration of Charles II had referred contemptuously to the judges Cromwell had sent to Scotland as *wheen kinless loons’, meaning that they had no connections with the leading families of the country.14 The judges appointed at the Restoration of the monarchy in 1660 were never in danger of such a reproach. Stair made a system of law for them, with debts to natural law philosophy and the Bible, and published his Institutions, as he himself claimed, ‘that not only bred lawyers, but

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generally, the nobility and gentry of the nation might know their rights’.15 Law became more important in Scottish society as it became more important to Scottish society. As the influence of the crown declined, issues regarding landed property became the object of the Court of Session’s endeavours; and control of the Session bench acquired para­ mount importance to the great men of the country as they vied for in­ fluence. At the same time, more of the gentry began to put on the black gown to plead their own interests. N.T. Phillipson’s work has shown a change in the composition of the Faculty of Advocates in this period: ‘Between 1670 and 1730 it grew significantly in size and changed equally significantly in social structure. Once it had been a corporation composed of sons of the lesser gentry and men of inferior social rank; now it was to become one whose corps d’elite was com­ posed of men of higher social rank and greater political consequence.’16 Of the 95 advocates admitted to the Faculty in the fifteen years pre­ ceding 1660, 22 came from elite backgrounds, 37 from the gentry, 25 from non-landed families, and eleven cannot be traced in terms of their social background. In the fifteen years preceding 1705, 68 of the 126 advocates admitted to the Faculty came from elite backgrounds, 48 from the gentry, seven from non-landed families, with only three not traced in terms of background.17 The disturbances which distracted the Faculty of Advocates in 1670 and 1674 marked the emergence of the corporate self-esteem and asser­ tion which was to characterise the profession for the next century and a half. In each case most advocates boycotted the bar; in 1670 to pro­ test against an attenpt by the government to limit their fees, in 1674 to protest against the crown’s prevention of an appeal from the Court of Session to the Scottish Parliament.18 It seems likely that there was a connection between this kind of behaviour and a change on the social composition of the Faculty, though this new confidence did not entail a transition to what was later to be termed professional conduct. In the meantime, particularly after the departure of the Parliament in 1707, the Court of Session and the Faculty of Advocates, who re­ mained in Edinburgh’s Parliament House, became the public and political forum of the nation. It was in aspects of the public role of the law that Scotland differed from other societies in early modern Europe. After 1603 Scotland had a separate legal system without having a resi­ dent king. After 1707 it did not even have a legislature or a direct exec­ utive representative of the crown. The Scots legal system was function­ ing in a partial legislative and executive vacuum. Initially this was to

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prove a source of much opportunity to the advocates and judges of Scotland. Their relationship to the nation changed in the nineteenth century, but it is this aspect of civic leadership by the Faculty of Advo­ cates in the late seventeenth, eighteenth and early nineteenth centuries which particularly concerns me here. Scots law existed for, and was administered by, the economic and political elite of the country; as such it was linked, inextricably, with their fortunes. The bench in Scotland always had been linked to the crown. Judges also acted in an executive manner, first as privy councillors, then, in the eighteenth century, as members of the various commissions the govern­ ment appointed to sit in Edinburgh, most notably the Commissioners for the Annexed Estates and the Board of Trustees for the Encourage­ ment of the Fisheries and Manufactures of Scotland. The judges led society and set the tone of metropolitan Edinburgh. After the Union, the six Lords of Justiciary on their circuits, with their entertainments in each circuit town, held a similar social position amongst the country gentry whose lives centred on Perth, Aberdeen, Inverness, Stirling, Glasgow, Inveraray, Jedburgh, Ayr and Dumfries.19 Changes in the social background of those who sat on the bench, with certain excep­ tions, reflected changes in the social structure of Scotland and metro­ politan Edinburgh. Members of the nobility sat in the Court of Session from the Restoration until the end of the eighteenth century. Even the third Duke of Argyll, the great eighteenth-century Scots politician and de facto ‘Viceroy’ of Scotland, had been trained as a lawyer. He held offices which bestowed judicial status upon him, as Lord Justice General and as Keeper of the Great Seal in Scotland, though they would later be used as sinecures for the nobility. One important point made recently by Rosalind Mitchison is the degree to which the Scottish bench made law as well as interpreted law.20 In some ways this was implied in Lord Cooper’s comments on Lord Stair, but it became a pronounced phenomenon after the Treaty of Union, particularly in regard to the development of Scots land law during the eighteenth century. It hardly seems surprising that all was not Stair in eighteenth-century Scotland to those, like the author, who grew up in America when Earl Warren was at the head of an assertive Supreme Court. John Ramsay of Ochtertyre, himself a laird bred to the law who chose the land, left the best memoir of the Scots legal pro­ fession in the second half of the eighteenth century; his work is full of anecdotes which illustrate the range of opinion and interpretation enjoyed by the Court of Session, even if he seldom alludes to the details of a case.21 Ramsay’s anecdotes give a general impression, but a study

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of the Court of Session’s approach to land law in the eighteenth century would be fascinating. The judges generally avoided issues which were divisive witliin their own class, such as the abolition of heritable jurisdictions in 1747,22 but most other legislation affecting Scots law in the eighteenth century had been drafted in consultation with the Scottish bench. There was not much of it.23 Land law was a different matter in an age when it was becoming fashionable to enclose, to drain, to offer new leases to tenants, to borrow in order to finance improve­ ments. Until someone (Lord Cooper called for a modern Job) under­ takes tire huge task of sifting through the case law of eighteenth­ century Scotland, however, we can only observe that the bench moved the law in the direction of their own class. Law was interpreted, that is, in favour of the landowner rather than the feudal superior, and cer­ tainly rather than the tenants. Another battle of legal interpretation fought out in the decisions of the courts in the eighteenth century concerned the creation of fic­ titious parliamentary votes based on legal, but artificial, feudal superior­ ities. In essence, tliis vexed and intricate matter involved twisting feudal law to allow a man with a large estate to multiply his electoral influence by creating votes for friends and dependants on his land without actually releasing possession of it.24 At issue was the relationship be­ tween large landowner and small landowner within the political nation. All through the middle of the eighteenth century the second Lord Presi­ dent (i.e. Chief Justice) Arniston and others on the Court of Session bench tried to declare nominal votes illegal, only to be overruled by their fellow Scotsman, Lord Mansfield, sitting in the House of Lords in London, the court of last resort for Scottish civil cases. John Mackenzie of Delvine, a prominent Writer to the Signet, was perhaps too cynical in attributing Lord President Arniston’s fear of nominal and fictitious votes to the activity of a political rival in Arniston’s home county. The secret of the case is this [he wrote to the Duke of Atholl in 1768], Lord Abercorn [a peer] has taken it into his head to split votes which threatens some day or other the independency of our darling county of Mid-lothian where justice reigns [an allusion to the political influence of the Dundas of Arniston family, lawyers all for generations] and therefore we must be tender that the infection don’t spread otherwise our happy constitution may be blasted.25 There was a political side to the Scottish bench throughout the eight­ eenth century, often forgotten in the light of the dazzling legal talent

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which politics or no politics, graced the bench; but the politics of this golden age cannot obscure the fact that Scottish landed society had come to have higher expectations of its judges. Even Lord Milton, the most political of all the eighteenth-century Lords of Session, followed this general approach. Lifelong political manager of the third Duke of Argyll’s interests in Scotland, he sent the following advice to Argyll’s nephew when he assumed ministerial responsibility for Scotland in 1761:

The judges of the Court of Session Justiciary and Exchequer should always be filled up with persons eminent for their probity and know­ ledge in the law and of estimation in private life; for nothing con­ tributes more to satisfy the people than when they see their lives and properties committed to the care of such judges... care should also be taken in naming the Sheriff Deputes as a seminary from which in time the judges may be taken.26 Milton’s conception of the local sheriff courts as a ‘seminary’ has a clerical ring to it which may say something about the emergence, and prominence, of the professions in modern Scotland. Tire eminence and activity of the bench, however, is more easily ob­ served than that of the Faculty of Advocates; it presented a public face, but one is unsure about the actual likeness. As a guild, its activity in the Restoration period marked the increase of its importance. Publicly, it was headed by its Dean, the elected leader of the bar. Sometimes the Dean was the Lord Advocate (Attorney-General) and sometimes not — a good indication of the Faculty’s corporate attitude towards the government of the day. The public history of the Faculty, as opposed to its social history as analysed by Dr Phillipson, is difficult to separate from the office of Dean of Faculty, for the Dean chose his council (annual committee) and directed the Faculty’s public activity. Those who disagreed with liim were free to cease participating in Faculty affairs, but had little scope for opposition. The Dean directed the con­ stant defence against the attempts to tax advocates by the town council of Edinburgh,27 but in return he retained an option to ride his own hobby-horse in the Faculty’s name. Sir George Mackenzie, Lord Advo­ cate and Dean of Faculty, was the driving force behind the founda­ tion of the Advocate’s Library in the 1680s, now the basis of Scot­ land’s National Library.28 The Faculty gained in prestige but the merit and the accomplishment was Mackenzie’s. Thus Dr Nan Wilson’s choice of words: Tn 1702, the Faculty, or at all events the Dean in

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their name, submitted an address to Parliament “concerning the meet­ ing of Parliament”, and other public matters, and in fact protesting against the meeting of Parliament after the death of William III.’29 It is difficult to determine whether the Faculty’s actions were the result of pressure from a substantial group within the Faculty, or the work of its Dean. Certainly one exception to any attempt to cast the Dean as director of Faculty action was the curious episode of 1712, when the ambi­ valence of the Dean, Robert Bennet, allowed a group of younger advo­ cates to make a show of support for the exiled Stuart Pretender. The Duchess of Gordon, whose husband had held Edinburgh Castle for James VII in 1689, had offered to donate a medal which incorporated the Pretender’s image to the Faculty’s collections. Despite speeches denouncing the offer by Lord Advocate Sir James Stuart and Duncan Forbes, the meeting of Faculty considering the offer voted 63-12 to accept, and delegated two young advocates to wait upon the Duchess and give her their thanks. This action was later withdrawn hastily when news of the donation appeared in the London newspapers.30 How did this odd charade come about? The Faculty’s minutes are silent, and I have not come across any contemporary evidence which sheds direct light on the riddle. A substantial segment of the Faculty, as opposed to its leaders, would have harboured some sympathy for the exiled branch of the Stuarts, whether they were Episcopalians who resented Presby­ terian domination, out-and-out Jacobites, or patriots who shared the general resentment over the implementation of the Union at that time current in Scotland. Two examples of public activity in the second half of the eighteenth century, however, are more suggestive of the uses to which the Faculty could be put by its Dean. The first has received considerable attention from Dr Phillipson, who interprets the Faculty’s attempt to write and secure the adoption of new legislation regulating Scotland’s law of entail as an attempt ‘to claim the civic leadership of post-Union Scot­ land’. Citing the dying Lord Kames’ comment to James Boswell: ‘you’ll not go to hell for conjecturing’, Phillipson sees the Faculty attempting to function as a kind of ‘para-parliament’ in 1764, to act as a forum for landed opinion in a Scotland which at that time lacked an institution­ alised outlet for such opinion. Phillipson ascribes a similar aspiration to other organisations in Edinburgh earlier in the eighteenth century — the Honourable Society of Improvers in the Knowledge of Agriculture after the 1715 rebellion and the Select Society after the 1745 rebellion. With the demise of the latter by 1763, Phillipson argues that the way was

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open for the leaders of the bar, the last generation of advocates to be drawn primarily from the upper ranks of Scotland’s landed society, to use the Faculty to take the Select Society’s place in confronting issues of special importance to the landed leadership of the Scottish common­ wealth.31 Scotland’s entail legislation was undoubtedly such an issue. In the late seventeenth century the Scottish Parliament had passed acts, in 1685 and 1690, which were regarded by many as devices to protect the estates of the landed class and ensure that they were maintained intact in the hands of that class. By the middle of the eighteenth century, however, there were new fears. Specifically, the native landed class began to see men with money buying the land, and feared that these new men could use the law of entail to perpetuate their family’s control of large estates and erect new dynasties of wealthy magnates whose in­ fluence, reinforced by the device of fictitious votes, would blot out that of the older but less affluent families. The most obvious example of a man symbolising these fears was Sir Laurence Dundas of Kerse, who was buying large tracts of Stirlingshire with money made as commissary of the British army in Germany during the Seven Years War.32 I find Phillipson’s reading of contemporary concern with the Scots law of entail in the 1760s an acute one, but I am not sure that the Fac­ ulty of Advocates led the nation on this issue, as I think he implies. It certainly reflected the concern of the traditional landed families when it met and appointed a committee to draft a new law of entail in 1764, but did it do more? There was a new Dean of Faculty in 1764, Alex­ ander Lockhart, a leader of the bar long before that time, grandson of the first Lord President of the Court of Session after the settlement of 1690, son of one of the Scottish commissioners for the Union of 1707, and a Jacobite sympathiser, who with his predecessor as Dean, James Ferguson of Pitfour, had defended the Jacobite prisoners at Carlisle in 1746. He was a brilliant advocate, if not a brilliant lawyer, and he had been neglected for years, like Pitfour, on account of his Jacobitism. He deserved, or many thought he deserved, by his prominence at the bar, a place on the bench. He was not to get it until 1775.1 believe he led the Faculty into their legislative excursion to add to his reputation and strengthen his claim for a judicial gown.33 My argument is speculative, like Phillipson’s, though not as pro­ found. I accept at once the importance of the entail issue amongst Scottish landed society in the second half of the eighteenth century, but I suspect that Dean Lockhart attempted to use the Faculty to capit­ alise upon this sentiment to exert his own influence as well as agitate

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for the solution of a problem which concerned him as a member of his class. I think the Faculty followed his initiative because it touched them at a sensitive point, but I do not think the Faculty collectively took action and attempted collectively to lead the commonwealth. In­ teresting though it was, the advocates’ (or Lockhart’s) attempt to write new entail legislation for Parliament accomplished little. When an Act finally was passed in 1770 it was written by the Lord Advocate, as was most Scottish legislation in the eighteenth century, and though the Lord Advocate had participated in Lockhart’s effort it was but a pale reflection of the bolder reform envisaged by the Faculty’s committee in 1764.34 Two Edinburgh wine-merchants, James Stewart and James Stodart, both one-time Lord Provosts of Edinburgh, made a similar effort to use another organisation to achieve a reform they desired. They tried to use the Convention of Royal Burghs (something like a parliament for those Scottish towns which had secured a royal charter) to open up the oli­ garchies which governed most burghs, in particular Edinburgh. They did this for their own purposes, in that they wished to achieve political power in Edinburgh, and because they genuinely believed Scottish burgh government to be narrow and corrupt. But they were blocked by the Court of Session’s ruling that burgh reform in Scotland fell within the jurisdiction of the Parhament of Great Britain, not the Convention of the Royal Burghs of Scotland.35 In a similar, if less direct, manner, Alexander Lockhart’s attempt to initiate reform in Scotland’s law of entail was doomed to fail because it was based on an extra-parhamentary organisation, the Faculty of Advocates, which lacked the influence necessary to achieve parliamentary action. V hen the Faculty of Advocates next encountered a pubhc issue it was on a different basis, yet it again reflected the influence of its Dean. Lockhart finally achieved the bench in 1775, and was succeeded as Dean by the young Henry Dundas, half-brother of the second Lord President Amiston. In 1778 the town council of Edinburgh decided to raise a regiment to aid the war effort against the American rebellion, and approached ah the leading inhabitants, corporations, and societies of the town to contribute financially. The one organisation which failed to do so was the Faculty of Advocates, ostensibly because it was a national body rather than an Edinburgh corporation, and because its funds were to be used only for the Faculty’s own purposes. The con­ temporary press, unlike the Faculty’s minutes, make it clear that there were political reasons for this decision, all relating to Henry Dundas’s own ambitions.36 The town council was dominated by merchants

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attached to Henry Dundas’s distant cousin Sir Laurence Dundas, then MP for the city. Henry Dundas, determined to supplant Sir Laurence’s influence in the city of Edinburgh, would do nothing to co-operate with the town council. He succeeded in keeping the Faculty of Advo­ cates from taking part in the town council’s project, although some claimed that a minority of the Faculty was discdmfited by appearing to lack patriotism. They were powerless in the face of Dundas’s deter­ mination. The Dean acted for the Faculty, and their name cloaked his actions. While I have been cautious in assessing the corporate role of the Faculty of Advocates in Scottish life, the sense of corporate self-esteem so pronounced in the early nineteenth century remains an important phenomenon which must be explained. A convincing, thorough explan­ ation does not exist. Even if I reduce the initiative of the Faculty over the law of entail in 1764 to the assertiveness of one man, the concerns of that man were different from those of Henry Dundas in 1778. Each was expressing hostility towards those who encroached on the position of the traditional landed class, but Lockhart was making a positive effort while Dundas merely acted in a hostile manner. Dr Phillipson’s general point about the changing outlook of the Faculty still stands. By the 1790s the Faculty was concerned with the politics of its Dean, Henry Erskine, too much a Whig for most at the time of revolution in France; or with matters such as the unprofessional conduct of Edward Armstrong, Sheriff-depute of Dumfries, who was forced to resign under threat of Faculty action, not on account of his behaviour in the court­ room, but because of his behaviour in the drawing-room (advocates were scandalised when he was caught cheating at cards at an Edinburgh party in 1791).37 Much of the new self-image amongst the lawyers was based on literary activity. Until the aftermath of the Napoleonic Wars, the black gown still offered a promising career for tire talented Scot who wished to stay at home. Lawyers began to dominate Scottish literature and taste in the period 1780-1820 in a manner which they had not achieved previously. The writings of men like J.G. Lockhart and Henry Cockburn did much to proclaim the importance of the legal caste to the ‘Athens of the North’. How far was this self-advertisement? Dr Sher lists an imposing array of lawyers who achieved prominence in letters at the turn of the century or later: Henry Mackenzie, John Millar of Glasgow, Sir Walter Scott, Cockbum, Francis Jeffrey, Lockhart and Sir William Hamilton are only the most notable of the notables.3* Was this because everyone else had taken the high road south, leaving the

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lawyers with the husk of what once had been? One is reminded of the comment in Robert Mudie’s The Modem Athens, published (in London) in 1825, that Edinburgh worshipped ‘her own shadow in the mirror of passing time’.39 The seeds of future decline already had been sown, as Dr Phillipson suggests. The Scottish gentry began to leave the land, neglecting Edin­ burgh, preferring to take their pleasures in London. Many lawyers followed them, treading the path previously made by William Murray, who as Lord Mansfield was Lord Chief Justice of the Court of King’s Bench, and Alexander Wedderburn, later Lord Chancellor Lough­ borough. One was Henry Erskine's younger brother Thomas, with no portion to sustain him in Iris native land, who arrived at the English bar by way of abortive careers in the navy and the army, made Iris mark, and became Whig Lord Chancellor in 1806.40 Another example which we can follow through literary evidence was the father of Elizabeth Grant of Rothiemurchas. Her memories relate how he tried his fortune at the bar in London, returning to his highland estate now and again, Edinburgh serving the family as a waystation rather than a social centre.41 The laird not only chose the law over the land, he practised it at London rather than Edinburgh. Britain had also acquired an empire that had to be fought for, administered, and exploited — tasks which required ambitious men — and there were the Scots, particularly the sons of the gentry, ready to step into the breach. The armed forces and the East India Company offered the ambitious Scot a foreign field to till, without requiring the 6lan displayed by Thomas Erskine in his assault on the English bar. Who stood at the bar in Edinburgh? One can detect in Henry Cock­ burn’s writings a recognition of the increasing anglicisation of the urban middle class; and that just at the time when this class was becoming increasingly represented in the Faculty of Advocates.42 The anglicising of Scots law itself followed apace. The new element at the Scots bar came from non-landed families, but not business or commercial families. They came from professional backgrounds, with a way and a reputation to make in the world. The law became more ‘professional’, less noticeable and more upright, and so boring that preparation to join its ranks could drive a man like Robert Louis Stevenson to distraction. The brightest and the best now took the high road to London and beyond. One can point to Henry Dundas himself as one of the first examples; destined to become Lord President of the Court of Session, he was given wider canvas, and consigned Scotland to the corner nearest his signature, where it absorbed his occasional hours, otherwise spent

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on India, the navy, or finance.43 43 The future of the law and the legal profession lay in assimilation with England and a comfortable, cosy existence as a superior version of a provincial court. Scots would find it convenient to have their own courts close at hand in Edinburgh, and would even find them and the law practised in them a source of some pride because they distinguished them from those south of the Tweed; but the law and the profession had lost their wider significance in Scottish society and had ceased to make a significant contribution to the Scots identity.

Notes 1.1 am thinking of the assumptions behind the work of Lord Cooper, Professor T.B. Smith, and the publications of the Stair Society, and more specifically, about the writing of such academics as Professor H. Paton in The Claim of Scotland (1968) and Douglas Young in Scotland (1971). 2. R.K. Hannay, The College of Justice (Edinburgh and Glasgow, 1933), p. 148. 3. See The Minutes of the Justices of the Peace for Lanarkshire, 1707-1723, ed. C.A. Malcolm (Scottish History Society, Edinburgh, 1931). Rosalind Mitchison is engaged in research on the Scottish Justices of the Peace in the eighteenth century. 4. Ann E. Whetstone, The Reform of the Scottish Sheriffdoms in the Eighteenth and Nineteenth Centuries’, Albion, vol. 9, no. 1 (Spring 1977). 5. T. Cooper, The Scottish Legal Tradition’ in Selected Papers, ed. J.M.C. (Edinburgh, 1957), p. 177. Also see T.B. Smith, Studies Critical and Comparative (Edinburgh, 1962), and T.B. Smith, Scotland: the Development of its Laws and Constitution (Edinburgh, 1962). 6. Peter Stein, ‘Law and Society in Eighteenth-Century Scottish Thought’, in N.T. Phillipson and R. Mitchison (eds.), Scotland in the Age of Improvement (Edinburgh, 1970), pp. 148-68. 7. James Robertson, The Development of the Law’ in J.M. Brown (ed.), Scottish Society in the Fifteenth Century (1977), pp. 136-52. 8. See G. Donaldson, The Legal Profession in Scottish Society in the Six­ teenth and Seventeenth Centuries’, and N.T. Phillipson, ‘Lawyers, Landowners, and the Civic Leadership of Post-Union Scotland’, both in the Juridical Review for 1976, reprinted in D.N. MacCormick (ed.), Lawyers in Their Social Setting (Edinburgh, 1976). Also see N.T. Phillipson, The Scottish Whigs and the Reform of the Court of Session’, unpublished PhD thesis, Cambridge University, 1967; and a forthcoming paper read by Dr Phillipson at the third British Legal History Conference in July 1977: The Social Structure of the Faculty of Advo­ cates in Scotland 1661-1840’. Dr Nan Wilson submitted a thesis on the sociology of the Faculty of Advocates to the University of Edinburgh, but for the purposes of tills chapter I have found the following most helpful: Nan Wilson, The Scottish Bar: the Evolution of the Faculty of Advocates in its Historical Social Setting’, Louisiana Law Review, vol. 28 (1968), pp. 235-57. Dr Richard Sher kindly directed me to this source. 9. See G.W.T. Omond, The Lord Advocates of Scotland (2 vols., Edinburgh, 1883), vol. 1. Donaldson, The Legal Profession in Scottish Society’.

162 The Law in Early Modern Scotland 10. Phillipson, ‘Lawyers, Landowners’, p. 103, citing The Crisis of the Aristocracy (Oxford, 1965), p. 240. 11. Phillipson, ‘Lawyers, Landowners’, p. 120 (page references are to the Juridical Review). 12. Wilson, ‘The Scottish Bar’, p. 236. 13. A History of the Society of Writers to Her Majesty's Signet. With a List of the Members of the Society from 1594 to 1890 and an Abstract of the Minutes (Edinburgh, 1890); The Society of Writers to His Majesty’s Signet. With a List of the Members and Abstracts of the Minutes of the Society,... (Edinburgh, 1936). 14. A.J.G. Mackay, Memoirs of Sir James Dalrymple, First Viscount Stair (Edinburgh, 1873), p. 62, n.2. 15. Sir James Dalrymple, An Apology (Bannatyne Club, Edinburgh, 1825 reprint of 1690 pamphlet), pp. 12-13. 16. Phillipson, ‘Lawyers, Landowners’, p. 100. 17. These statistics are taken from N.T. Phillipson’s forthcoming paper (see note 8 above), which will appear in the published transactions of the Third British Legal History Conference. I am grateful to Dr Phillipson for allowing me to use this essay before its publication. Phillipson uses the term ‘elite background’ in reference to those whose fathers were peers or baronets, members of the Scots or British Parliament, or possessed the principal electoral interest in a Scottish county. 18. John Simpson, ‘The Advocates as Scottish trade union pioneers’ in G.W.S. Barrow (ed.), The Scottish Tradition (Edinburgh, 1974), pp. 164-77; The Minute Book of the Faculty of Advocates, 1661-1712, ed. J.M. Pinkerton (Stair Society, Edinburgh, 1976). 19. John Ramsay of Ochertyre, Scotland and Scotsmen in the Eighteenth Century, ed. A. Allardyce (Edinburgh and London, 1888), vol. 1, pp. 97, 125, 156-7, 164-5, 190-1, 399. The Lords of Justiciary on circuit acted as an inter­ mediate court of criminal appeal above the sheriff courts. The six sitting to­ gether in Edinburgh were Scotland’s supreme criminal court, from which appeal lay only to the crown. 20. R. Mitchison, ‘Patriotism and National Identity in Eighteenth-Century Scotland’ in T.W. Moody (ed.), Nationality and the Pursuit of National Independ­ ence (Belfast, 1978), pp. 73-95. 21. Ramsay, Scotland, vol. 1, p. 186. 22. Philip C. Yorke, The Life and Correspondence of Philip Yorke, Earl of Hardwicke (3 vols., Cambridge, 1913), vol. 1, pp. 588-624. 23. An impression may be gleaned from B.L., Hardwicke Papers, Additional MSS 35445-49, which contain Hardwicke’s Scottish correspondence. 24. William Ferguson, ‘Electoral Law and Procedure in Scotland in the Eighteenth and early Nineteenth Centuries’, unpublished PhD thesis, University of Glasgow, 1957. 25. Blair Atholl Castle, Perthshire, Atholl Papers, Box 49, section 7, no. 16, J. Mackenzie to the third Duke of Atholl, 18 Feb. 1768.1 am grateful to the Duke of Atholl for permission to quote from the manuscripts in his possession. 26. National Library of Scotland, Saltoun Papers, SB 362, memorandum, printed in A. Murdoch, The People Above (Edinburgh, 1980), appendix one. 27. Faculty Minutes, ed. Pinkerton, pp. xv-xvi. 28. Ibid., p. xvii. 29. Wilson, ‘Scottish Bar’, p. 245. 30. See G.W.T. Omond, Arniston Memoirs (Edinburgh, 1887), pp. 52-6. 31. Phillipson, ‘Lawyers, Landowners’, pp. 109-13. 32. See the entry by Lady Haden Guest in Sir L.B. Namier and J. Brooke (eds.), History of Parliament: the House of Commons 1754-1790 (3 vols., 1964), vol. 2,

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pp. 357-61; also see the speech by Sir Alexander Dick in The Scots Magazine, vol. 37 (Oct. 1775), pp. 566-7. 33. Ramsay, Scotland, vol. 1, pp. 131-8.1 am grateful to the Clerk of the Faculty of Advocates for permission to consult the Faculty’s manuscript minute books for this period. 34. Phillipson, ‘Lawyers, Landowners’, p. 118; Omond, Lord Advocates, vol. 2, pp. 78-81; P. Hume Brown, History of Scotland (3 vols., Cambridge, 1911), vol. 3, pp. 345-6. 35. H. Arnot, History of Edinburgh (Edinburgh, 1779), pp. 517-18; An Examination . . . with Remarks on the Set, or Constitution of the City (Edin­ burgh, 1776) [in the Edinburgh University Library]; Scots Magazine, vol. 40 (appendix, 1778). 36. Scots Magazine, vol. 40 (Jan. 1778), pp. 49-52; Edinburgh Advertiser, 1778, p. 21; The History of the Rise, Opposition to, and Establishment of the Edinburgh Regiment (Edinburgh, 24 Jan. 1778) [in the Edinburgh Room of the Edinburgh Central Public Library]. 37. National Library of Scotland, ephemera connected with the election of the Dean of Faculty in January 1796, catalogued under Edinburgh: Faculty of Advocates; Scottish Record Office, Melville Papers, GD 51/5/404/1, Lord Advocate Robert Dundas to Henry Dundas, 10 July 1791. 38. Richard Sher, ‘Church, University, Enlightenment: The Moderate Literati of Edinburgh, 1720-1793’, unpublished PhD thesis, Universityof Chicago, 1979, pp. 494-6. 39. [Mudie], The Modern Athens, p. 162. 40. John, Lord Campbell, Lives of the Lord Chancellors and Keepers of the Great Seal of England (7 vols., 1847), vol. 6, pp. 368-709. 41. Elizabeth Smith, Memoirs of a Highland Lady: The Autobiography of Elizabeth Grant of Rothiemurchas, afterwards Mrs. Smith of Baltiboys, ed. Lady Strachy (1898), p. 8. 42. Wilson, ‘Scottish Bar’, pp. 251, 253. 43. There is no modern biography, but see Holden Furber, Henry Dundas, first Viscount Melville (1931).

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8

LAWYERS IN PRE-REVOLUTIONARY FRANCE

Lenard R. Berlanstein

For an introduction to the ‘collective mentality’ of eighteenth-century French lawyers, we could do no better than to examine the open letter which one Burgundian barrister, Francois-Bernard Cocqurard, penned to his son explaining why his career was ‘the most beautiful of all the professions’.1 There were no original ideas within this tract, written in 1733. The author repeated points that had been made frequently before and would continue to appear in professional manuals down to 1789. They merit our attention just because of this. The letter is a com­ pendium of fixed and familiar attitudes with which the large majority of French barristers (avocats) would have identified. Cocqurard based his professional satisfaction on the dignity which his work had enjoyed through the ages down to his own day. Asking liis son to reflect upon the glories of the bar in ancient Rome, Cocqurard cited one classical author after another to demonstrate that tire emperors did, indeed, revere the learned lawyer. He noted that the medieval kings, as well, missed no opportunity to honour great barristers. Moreover, the prerogatives which advocates enjoyed in the author’s own day attested to the maintenance of this dignity. The barrister had a personal nobility which, while not hereditary, still separ­ ated him from the multitude. This sort of nobility brought some privi­ leges: the advocate was exempted from militia service; he could expel from his neighbourhood any artisan who disturbed his work; the eldest members of the bar had the right to bring their cases directly to the highest (sovereign) courts, just as aristocrats did. Cocqurard took it as a personal honour that a member of the Second Estate (nobility) could practise his profession without derogation of status; the same was not true for commerce. To cap his argument the author appealed to the independence of his career. The aristocrat needed the barrister, but the barrister did not need his social superior. Obviously, the Burgundian pleader conceived the rewards of his pro­ fession in terms of the gratifying status it bestowed. He was, evidently, well integrated into a society of inherited privileges and rank, what Professor Mousnier calls a ‘society of orders’.2 So, indeed, were most lawyers, even though they exercised an open, competitive profession that demanded talent and individual initiative for success. How these 164

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contradictions were resolved will be a principal concern of this chapter. Before considering this issue, however, it will be necessary to examine the structure of the legal professions and consider, one by one, the most important kinds of legal careers: attorneyship, the bar and the magistracy. The institutional framework in which lawyers of the ancien regime functioned reflected in full measure the incomplete achievement of France’s centralising monarchs. Provincial legal structures enjoyed much vitality. Provinces had their own supreme courts or parlements (sometimes called sovereign councils) around which judicial life was organised. The lesser tribunals — presidiaux, bailliages, sinichausies, and the myriad of courts with special jurisdictions — looked to the parlements for guidance.3 These courts administered local law and customs, sidestepping royal ordinances which violated the provisions of the former. Though the parlement of Paris had by far the largest territory in its jurisdiction and had always been most vocal in public affairs, the pride and self-confidence of the provincial parlementaires (as the magistrates of the high courts were known),ibespoke their independence of Paris. Alexis de Tocqueville’s observation that ‘the provinces had come under the thrall of the metropolis’ was simply not accurate for the legal professions of eighteeth-century France. Apart from creating an enormous number of venal offices, the rising, absolute, administrative monarchy had done remarkably little to alter the internal structure of tire legal professions. The barrister’s profession, of which Cocqurard was so proud, was one of the more distinguished legal fields a man could enter in eighteenth-century France. There were also non-noble magistrates, attorneys (pro curcurs'), court clerks (greffiers or hussiers) and specialised practitioners of many kinds. These various careers differed in terms of function, qualification and status attached to each. Most legal positions, magistracies included, involved the purchase of a public office, which became one’s personal property. On the other hand, barristers and specialised experts, like feudistes, who dealt with seigneurial law, followed ‘liberal’ careers. A more fundamental distinction concerned those positions requiring a law degree and those that did not.4 The fact, or pretence, of being learned in the law separated barristers and magis­ trates from the rest. The litigant’s first and most enduring contact with any kind of lawyer would probably be with a non-graduate, an attorney.5 His function was to steer cases through court and take care of the proce-

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166 Lawyers in Pre-revolutionary France

dural details. When a law-suit rested on a question of fact, not law, an attorney could handle the case without the counsel of the universitytrained barrister. A client’s best protection was sometimes endless stalling, and he could count upon the skilled attorney to uncover one procedural twist after another. Attorneys were notorious for their powers of obfuscation, even if in France they did not have the consis­ tently poor public image from which their English counterparts suffered. The attorney’s positon was work, not a dignified profession surrounded by a gentlemanly aura of disinterest and wisdom. ‘Mechan­ ical’ was the term sometimes used to describe his activity — though un­ fairly, one might add. Moreover, the elaborate etiquette of courtroom behaviour sometimes assigned slightly demeaning acts to attorneys, like baring his head before the magistrate while the barrister remained covered. For all this, the attorney went through an extensive practical training and could expect significant rewards from his office. He was supposed to serve an apprenticeship of seven years. After spending some time in secondary school, a youth would become clerk to a prac­ tising attorney, and by the time he completed the required service, his family would presumably be ready to procure an office for him. The young attorney’s financial prospects were quite good. He could realis­ tically expect a comfortable income of two or three thousand livres and perhaps more. Furthermore, the crown was no longer selling new attorney’s positions as fast as the needs of the Treasury demanded. This had been the practice in the seventeenth century, but it did not con­ tinue under Louis XV and XVI, and some courts even witnessed a reduction of procureurs. It is also possible that the volume of litigation was increasing over the same period. No wonder that the prices of attorney’s offices rose accordingly. In Besanpon, the capital of the Franche-Comtd, for example, their value tripled during the course of the eighteenth century.6 What kinds of people became attorneys? Recruitment from within the legal professions was quite common, and it often involved a step up­ ward: a court clerk’s son, for example, becoming an attorney. Occa­ sionally, a shopkeeper’s child would enter the career, but it was rare for a barrister’s or magistrate’s son to do so. The procureur was upwardly mobile, and having made his moderate fortune was likely to send his own child to the bar or bench.7 The self-satisfaction evident in Cocqurard’s letter expressed some of the differences between the learned legal careers and the inferior ones. It was the barrister or advocate who prepared the legal arguments, while

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the attorney merely assembled the dossier of documents. The advocate also pleaded the case in court, penned written briefs (called memoires') and gave consultations to clients. The skilled barrister was a talented figure. He needed a sonorous, powerful voice capable of holding the judges’ attention, as well as a good memory in order to find his way through the labyrinth of laws and customs which constituted eighteenth-century jurisprudence.8

Table 8.1: Social Origins of Barristers and Attorneys in Toulouse, 1750-1789 Attorneys

Barristers

Father’s Occupation Barrister Bourgeois* Merchant Attorney Civil officer Notary Court clerk Seigneur, ecuyer** Master artisan Doctor

No. 50 25 19 17 15 14 6 7 3 2 158

% 31.6 15.8 12.0 10.8 9.6 9.0 3.8 4.4 1.9

1.1 100.0

No. 0 10 7 12 2 8 1 0 1 0 41

% 0 24.5 17.1 30.0 4.5 19.5 2.2 0 2.2 0 100.0

*This term designated propertied men who lived off invested income. One must assume that some were retired lawyers. **These somewhat ambiguous titles were probably used to designate minor noblemen. Source: Lenard R. Berlanstein, The Barristers of Toulouse in the Eighteenth Century (1740-1793) (Baltimore, 1975), p. 35. For all the barristers’ insistence on the learned nature of their functions, their professional formation was rather haphazard. The value of the training received at law school was often poor. It was sometimes possible to purchase a law degree. No one seemed to expect students to earn much from the dry lectures and texts to which they were exposed at university.9 Academic attendance had, however, a social function: to raise the costs of entering the profession and make tire career just that much more exclusive. Effective professional training came after gradu­ ation, from one’s prospective colleagues. After receiving the licence and taking the oath before the court at which he intended to practise, the graduate had to spend usually three years attending court sessions as a ‘listening lawyer’ (avocat ecoutant). Many bars organised special study sessions at which polished lawyers took turns giving lessons.10

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168 Lawyers in Pre-revolutionary France

Professional training was very much a collegial affair and, no doubt, gave the aspiring pleader his first taste of the powerful corporate co­ hesiveness of the bar. The training was not only intellectual, but also social and psychological. Listening lawyers were supposed to wear thendistinctive gown whenever they appeared in public; thus they learned to take on the banister’s identity.11 The young man who was serious about his career took full advantage of this collegial training because he knew his profession was competitive and overcrowded and becoming more so all the time. Pleaders before the parlement of Toulouse, for example, rose from 87 in 1740 to 215 in 1789.12 Probably half of the men officially ‘at the bar’ were there merely in a nominal way, for the honour of using an esteemed profes­ sional title. Yet only a minority of the rest would acquire much of a practice. The successful few usually made a reputation early in their careers and built upon it. The rest could try to supplement their meagre incomes by working as secretaries to magistrates, justices at minor courts, and even as advisers to successful attorneys. Some private income was always a desirable accompaniment to the advocate’s profes­ sion. Most lawyers found that fees from consultations or pleading at best supplemented returns from family property.13 It was possible to enrich oneself at the bar, but this was the excep­ tional experience. From Paris came tales of fabulous sums which courtiers lavishly bestowed upon their legal counsellors.14 In the prov­ incial capitals, however, a leader at the bar might earn five to six thou­ sand livres a year, somewhat less than the income of a modest noble­ man. Moreover, a lawyer had to work fairly hard even for moderate remuneration.15 The best chance lawyers had for lucrative practices was to become consultants to rich religious houses or prominent land­ owning families. In any case, the few leading lawyers probably de­ pended heavily on the business of aristocrats since so much wealth was concentrated in their hands. In the administrative and commercial centre of Toulouse, nobles made fewer than an eighth of all inheritance declarations (actes de succession), but these accounted for two-thirds of all property that passed to heirs during the Revolution.16 For the most part, barristers and attorneys lacked the wealth of aristocrats. The average nobleman was, perhaps, eight times wealthier than the average lawyer in most of the larger cities. The latter could afford solid comforts, a few luxuries, but not much more. Of course, this was an enviable position in a society where the majority of the population was never far from physical want. But there was rarely any question of economic equality with the aristocracy.

! Lawyers in Pre-revolutionary France

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Table 8.2: Average Fortunes of Lawyers in Three Cities (in livres) Profession Parlementaire Barrister Non-graduate Lawyer

Besancon 364,491 35,042 26,130

Toulouse 339,448 43,100 37,513

Lyon 37,600 14,700

Source: Maurice Gresset, ‘Le Monde judiciarie a Besan?on de la conquete par Louis XIV a la Revolution fran$aisc’, 4 vols., unpublished thesis, Universite de Paris-IV,’ 1974, vol. 3, p. 814.

Many barristers came from families already involved with the law. The bar also attracted the sons of well-off merchants, urban rentiers or bourgeois. Like Cocqurard, many advocates were doubtless gratified that noblemen (usually of very recent extraction) were among their colleagues. In cities with prolific sources of noble titles — the mayors of 15 towns became noble upon assuming office — an appreciable portion of the bar would undoubtedly belong to the Second Estate.17 Indeed, the pleader from a very humble background was probably less common than the nobleman’s son. There seems to have been considerable resent­ ment against children of the peuple invading the bar. The advocates of Rennes explicitly excluded from their professional body men whose fathers practised a ‘mechanical art’, and in Besanqon, law students rioted when the son of a wig-maker was admitted to the law faculty. Barristers were conscious of their respectable status and took steps to protect it.18 In terms of training, fortune and social background, barristers did not differ much from most magistrates on the benches of the lower (non-sovereign) courts.19 Leading pleaders sometimes claimed that their colleagues who lacked skill or ambition retired to such secure and routine positions. Whether or not this was the case, one ought not to think of these magisterial offices as prized family careers. Sons often did not wish to succeed their fathers, and newspapers frequently carried announcements that such positions were for sale (along with a list of the privileges that accompanied the office). In the last years of the ancien regime, posts went unfilled, at least in some regions.20 People apparently preferred to invest their money in land or commerce. By contrast, the magistracies at the parlements were highly coveted, indeed exclusive. The parlementaires comprised a powerful, haughty and cohesive group in each provincial capital. Unlike positions on the benches of the subaltern courts, judgeships in the parlement usually passed from father to son, and any outside candidates were subjected to careful scrutiny; they were expected to add lustre to the benches. In

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170 Lawyers in Pre-revolutionary France the 1770s and 1780s a number of parlements explicitly excluded those without several generations of noble status. The parlementaire families were usually the wealthiest of the provincial capitals. They dominated the learned societies and charitable organisations, and they enjoyed the deference of the urban population, who regarded these judges as the fathers of the city and the province.21 The legal professionals we have discussed so far — attorneys, barristers and non-noble judges — were quite numerous, enough so to have stirred the anxieties of contemporary social observers, who wished for more young men to enter ‘productive’ occupations. Financial ex­ pediency had pushed seventeenth-century monarchs to proliferate venal legal offices in an unprecedented manner; as a chancellor of Louis XIV noted, whenever it pleased the Sun King to create a new office, God obliged by creating a fool to purchase it.22 Monarchs of the eight­ eenth century resisted this practice, but by the middle of the century law-school graduates and lawyers in non-venal positions were rapidly increasing in numbers. This growth was probably rooted in demo­ graphic expansion, but it may also have entailed a channelling of young men from clerical to legal careers.23 Just how many lawyers there were in the kingdom of Louis XVI is impossible to say for lack of national professional bodies and national statistics. In provincial capitals like Rennes, Dijon, Aix or Arras, there might reside over 100 judges, a like number of attorneys, 300 barristers and a small army of clerks, minor court officers and secretaries. And none of these cities had a population over 30,000. Provincial capitals were not the only cities with a high density of lawyers. Few eighteenth­ century towns were dynamic centres of manufacturing; most lived, to a greater or lesser degree, as parasites on the countryside. Courts and litigation were typical instruments for extracting money from the hinterlands.24 The celebrated Parisian barrister Pierre-Nicolas Berryer once marvelled that his native town of Sainte Mdndhould (in Cham­ pagne), with a population of only 3,000 inhabitants in 1789, was the seat of a bailliage court, a Tribunal of Commerce, a Waters and Forests Court, a Direct Tax Court and still others.25 Understandably, lawyers dominated provincial urban life in pre-revolutionary France. Whenever lawyers existed in large enough numbers to form a critical mass, they were generally bound to tight-knit corporate groups, each with a highly developed sense of interest and honour. These cor­ porate bodies regulated professional behaviour and mediated between individual members and outside authorities. Their meetings were still fairly well attended and sometimes lively.26 We must remember that in

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the ancien regime the individual lacked a clearly defined place in the public order; individuals were grouped into corporate bodies. Lawyers thought of themselves as a part of the ‘Community of Attorneys’ or ‘Order of Advocates,’ as the case might be. Their self-interest, ambition, family tradition and amour propre encouraged them to unite to main­ tain the honour and dignity of their professional group. In each provincial capital the various communities of lawyers found in their parlement a clear focus for their loyalties. Together, these various corporations formed a veritable judicial world, isolated to some degree from the rest of the city and conscious of their distinctiveness. Lawyers of all kinds appropriated the quarter of the city around the Palais de Justice. In 1789 the Rue Nazareth in Toulouse, for example, housed twelve barristers, seven magistrates and three attorneys. The adjacent Rue Vieux-Raisin had five judges, five advocates and three attorneys.27 Legal men who joined a religious confraternity or masonic lodge in the city were likely to find many colleagues as fellow members. Conscious of a collective identity binding them to the sovereign court, its power and traditions, the lawyers of provincial capitals came to form a sort of ‘Fourth Estate’, defining their interests and prerogatives in terms of service to the parlement™ Such an identity distinguished them — and partially segregated them — from people of similar wealth outside the judicial world. This was a community of unequals, to be sure. And a consequence of the venality of offices was that the hierarchy of the judicial world was based on social and economic status rather than on professional status. Not even in theory was one expected to win a place on the bench of the Sovereign Court in reward for an outstanding legal career. A noble magistracy went to a family (not an individual) distinguished by inherited wealth or prominence. Thus, the parlementaires of Dauphind (Grenoble) rejected the candidacy of a leading pleader because of ‘the mediocracy of his fortune ... the simplicity of Iris habits and his tastes’.29 Clearly, the principles on which the legal hier­ archy operated mirrored the organising principles of the rest of society. Even a Cocqurard could assert that many barristers were far more knowledgeable in law than most successful candidates for sovereign court offices. But then, the legal world was too much a part of the ancien regime to have been a meritocracy. One more structural feature of the legal professions merits special attention for the enormous part it played in shaping a lawyer’s outlook on public issues. We must note that the parlement was not only a law court but also a political institution of great power. Technically, the

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172 Lawyers in Pre-revolutionary France political influence of the sovereign courts rested on a sort of judicial review, the right to register royal decrees before they became operative. This made the parlements a focus of resistance to ‘ministerial des­ potism’ in the name of provincial liberties, noble prerogatives, public welfare or hostility to innovation.30 The ultimate source of power for the high courts was their hold over public opinion, and the parlements generally wielded this weapon so well that they constituted a very effective check on the powers of the crown.31 In most cases, lawyers supported the ‘constitutional’ restraints that the parlements tried to impose upon the monarch. Membership in the judicial world virtually imposed specific political habits and traditions on lawyers. In summarising the structure of the legal professions, one would want to stress the significance of vertical loyalties: lawyers were bound together in corporate groups, each with powerful traditions and inter­ ests that directed the members to consider themselves as part of a hier­ archical legal world. It now remains to place the legal professions within a broader social context — in a society with tensions which would push it to revolution.

I' I'

The dynamism of eighteenth-century French society expressed itself most markedly in the questioning of established values and institutions known as the Enlightenment. Lawyers were not outside this movement; indeed, certain sectors of the profession were quite receptive to the new ideas and critical attitudes of the Enlightenment. However, it is impor­ tant to appreciate the limits as well as the extent to which lawyers were spokesmen for an enlightened programme of change. Writing and arguing about public issues or developing an artistic life were for the most part, the activities of university graduates, not the less-learned legal professionals. Attorneys or court clerks tended to be narrow careerists without the self-confidence or independence to delve beyond their everyday affairs. Broad cultural horizons had not even been fully accepted among the better-educated lawyers until the mid­ eighteenth century. For much of the old regime, lawyers had exalted judicial learning to the exclusion of ‘frivolous’ pursuits in literature or philosophy. In the early decades of the eighteenth century, lawyers who took an interest in the arts, science, economics or politics — those who wished to be informed and cultivated men as well as capable pro­ fessionals — had to combat this prejudice.32 The increasing participation of lawyers in provincial academies and scientific societies was a measure of their success in breaking out of a narrow cultural self-definition.33 By the last decades of the ancien regime tire bars of all the larger

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cities contained many men who were ‘enlightened’ by any contem­ porary definition of the term. They read the leading thinkers of the Enlightenment with sympathy (or, at least, with interest) and might even have purchased the Encyclopedic for their libraries. They cham­ pioned religious toleration and believed that a few rationally conceived reforms could contribute to material progress. Humanitarian measures were useful in their view because they would be repaid in moral im­ provement.34 A few lawyers, no doubt, were frustrated writers, and the occasional piece they offered to the local academy was a pale reflec­ tion of the literary grandeur of which they dreamed. An issue which certainly evoked deep feeling at every bar was the reform of the harsh criminal laws. Even before Beccaria’s landmark essay Of Crime and Punishment drew widespread attention to the prob­ lem in the 1760s, some lawyers had called for the abolition of torture in judicial procedures.35 The last two decades before the Revolution witnessed numerous speeches, poems and essays pleading for more opportunity for the accused to establish his innocence. Lawyers were articulating a desire to replace fear and repression with humanity as a basic response to deviancy. For all this, there were narrow limits to the lawyers’ critical inspec­ tion of existing institutions and customs. Even in the area where law­ yers could certainly claim expertise, legal reform, many important grievances escaped their attention.36 Justice was expensive and often inaccessible to the populace. The multiplicity of jurisdictions and possibilities for endless appeals led to confusion and lack of finality in decision. Voltaire noted with insight that the traveller changed laws more often than horses as he traversed France. These grievances pro­ duced a pervasive, popular dissatisfaction with the judicial system; it surfaced in the cahiers de doliances of 1789. Yet few lawyers articu­ lated these problems prior to the outbreak of revolution. Perhaps their vested interests in the existing system spoke louder than their humani­ tarian sensibilities.37 The limit to their enlightened perspective was this: lawyers did not ask fundamental questions about the place of commoners in a society based on inherited privilege. To be sure, they wished talent and indivi­ dual accomplishment to be respected, but this never brought them to challenge the institution of inherited inequality. Perhaps, as Colin Lucas has suggested, the distinction between noble and commoner, explicit in principle, was not so clear in lawyers’ minds.38 The remarks about status found in Cocqurard’s Lettres and in so many other professional manuals suggest that advocates, at least, were more conscious of their

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174 Lawyers in Pre-revolutionary France

closeness to the nobility than of their connections to the ‘common herd’ below. This limitation was quite important, for if learned lawyers were unable (or unwilling) to scrutinise the basic assumptions of their society, few other commoners had the habits of mental activity or tech­ nical skills to do so. The numerous enlightened lawyers believed — or never questioned — that social progress through specific, rational re­ forms was possible within the existing social order. Alexis de Tocqueville argued that enlightened reformers developed their ideas in isolation from power or responsibility, but many such lawyers held responsible positions in municipal government and local administration.39 Non-noble magistrates were always likely candidates for the mayoralties of provincial towns, and a leading barrister (or, sometimes, attorney) would routinely become aiderman of a provincial capital like Aix, Grenoble or Rouen. Important consultants and busy pleaders generally gave generously of their time to serve on hospital and charity boards. In Toulouse as many as one barrister in six held some sort of responsible post.40 Perhaps it would be fair to say that, the clergy aside, no professional group was so involved in the daily func­ tioning of local institutions as barristers. These local charges reinforced the position of prominent lawyers as local notables. Engaged as they were in public issues and involved in public charges, lawyers were inevitably drawn into political controversies. Their com­ portment on these occasions illuminated much about their perceived in­ terests and collective identities. Whether the conflicts were local or ‘national’ in scale, lawyers were loyal, first, to their own professional corporation, and then to the judicial world in which they were enmeshed. A commitment to the general welfare and common interest of French people, an independence of perspective beyond corporate politics, was usually lacking. For example, in one provincial capital barristers mobilised against a worthy plan to select the municipal aider­ men on more rational grounds; they did so because the reform threat­ ened to reduce the number of ennobling offices available to advo­ cates.41 They took the desirable reform as a threat to their corporate prerogatives. The passionate quarrels between the parlements and the crown which dominated French political life in the eighteenth century found lawyers in support of the aristocratic magistrates at all times. Whether the high courts were blocking a new tax or sabotaging some other re­ form, lawyers opposed royal despotism and affirmed the solidarity of the judicial world. As R.R. Palmer has noted, the royal administration was particularly inept at (or indifferent to) handling public opinion.42

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The crown never took energetic steps to cultivate friends at the lower echelons of the courts, encourage independence or protect potential supporters from intimidation. Without such royal backing, there was no possibility of developing a tradition of opposition to the parlementaires or focusing opinion on reform. The royal offers to end venality of judgeships and make the benches of the parlements more accessible to lawyers failed to excite much enthusiasm at the bars of France. This was largely because the reforms were so obviously subordinate to the political goal of controlling the sovereign courts. In 1771 the Chancellor Maupeou’s famous (and nearly successful) efforts to crush parlementaire opposition promised such re­ forms, and the reaction of lawyers ranged from violent opposition to a confused and reluctant acceptance of a fait accompli at the different capitals.43 Again, on the eve of the Revolution, the Lamoignon Edict of 1788, designed to render the parlements powerless to stop the crown from raising funds, offered the same advantages to lawyers. They re­ acted, if anything, with bolder opposition than in 1771.44 The king simply could not break the fundamental solidarity of the judicial world in this manner. There was a potential for disunion, but the split had to originate from within. Friction within the legal world occurred with some frequency throughout the ancien regime. It erupted when the magistrates of the parlenient handled one of its subordinate legal groups with excessive roughness. Frequently overweening in their demands of submission, the parlementaires sometimes pushed corporate groups to defend their honour or integrity. Their interminable bossing of the lower-court judges within their provinces created some ill-will, and in 1788 judges of non-sovereign courts took revenge by serving on the superior coun­ cils created by Lamoignon to break the power of the parlements. The most notable rifts in tire judicial world were the occasions on which barristers went on strike to protest outrages to their collective honour. The dissension that occurred at the parlement of Rouen in the 1740s suggests the range and intensity of such disputes. This one arose from the animosity of the barristers towards an officer of the court who pub­ licly humiliated some of their number. The pleaders decided in secret session not to work with this judge, but when the parlementaires learned of the decision, they sternly called upon the bar to apologise. The barristers initiated a strike which many carried on for four years. The strikers refused even to appear at the funeral of one court officer. Only firm threats and behind-the-scenes gestures of conciliation ended the dis­ pute.45 The parlement of Grenoble experienced a similar incident in 1780

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176 Lawyers in Pre-revolutionary France

when the judges bluntly cut short a pleader, thereby flouting accepted courtesies. Wounded in their corporate pride, his colleagues ventured a mild protest, which the magistrates haughtily rebuffed. Now fearing a true loss of face, the advocates stayed out of the courtroom for several months. They even received moral support from other bars in France.46 There was probably not a parlement in France at which such disturb­ ances did not happen from time to time during the eighteenth century. Such conflicts within the judicial world aroused deep passions, and, perhaps, some enduring animosities, but they did not involve great prin­ ciples. Lawyers felt insulted; they feared a loss of face; their heroic rhetoric called for the selfless defence of corporate honour. Yet noble magistrates and lawyers continued to have the same notions about how society should be organised. This was not the sort of dispute that pre­ figured revolution. It was the revolutionary crisis of 1788-9 that produced a profound change in perspectives for lawyers. Eager to work for an end to ‘despot­ ism’ and for needed reforms, lawyers angrily saw the parlementaires align themselves with the narrow interests of the Second Estate, de­ stroying the solidarity of the legal world.47 Many lawyers reacted by placing themselves at the head of the Third Estate (commoners). More­ over, the very terms of the struggle over the composition of the Estates General compelled lawyers to consider in a new light their assumption about being ‘nearly noble’ and far above the ‘common herd’. The exclusivism of the aristocracy belied such claims.48 Now lawyers came to perceive their situation in the social hierarchy, but did so — it is import­ ant to note — no sooner than other propertied commoners. Experience in public speaking and administration as well as the self­ confidence derived from their professional skills allowed lawyers to formulate demands clearly and boldly and lead the protests of the Third Estate up to the meeting of tire Estates General. This was especi­ ally true for non-noble magistrates and barristers. As usual, attorneys and other legal professionals were less visible, though in a few regions their role in Third Estate politics was uncommonly active.49 It was a time when lawyers recalled past humiliations and corporate insults and allowed these to fuel their disaffection for ‘the privileged orders’. Yet lawyers generally managed to lace their insistence on capitulation to the commoners’ demands with efforts at social reconciliation. However much they flung themselves into the early struggle against the aristocracy, lawyers were not bound inextricably to the revolu­ tionary movement. It is true that the Consitituent Assembly, which

Lawyers in Pre-revolutionary France

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tore down the old France and assembled the new one, contained a very large number of non-noble magistrates, barristers and other kinds of lawyers.50 Yet to consider these men as representative of their pro­ fessions would be a mistake. These deputies had made a primary com­ mitment to the Revolution and had rejected their former professional identities. Thus they voted for the dismantling of the judicial institu­ tions of the old regime, of lawyers’ corporate bodies and of profes­ sional monopolies.51 Most lawyers outside the Assembly had not en­ visioned such thorough-going changes and could not break so com­ pletely with their former careers, livelihoods and loyalties. Lawyers’ reactions to the revolutionary situation undoubtedly varied widely. The implications of the one case study we have are that temp­ erament and political vision rather than socio-economic position separ­ ated revolutionary enthusiasts from neutral and even counter-revolu­ tionary lawyers. Underemployed lawyers did not necessarily surge to the forefront of revolutionary activity, and some of the great figures of the new order — Robespierre and Bardre among them - had been successful young pleaders.52 The absence of clear-cut socio-economic divisions reflected the fact that the Revolution did not aim at opening the legal professions to new men; rather, it fundamentally altered the nature of these careers in such a way as to undermine the bases of their former respectability or profitability. More studies of lawyers’ reactions are necessary before we can draw firm conclusions, but it does seem certain that they were not inevitable supporters of the revolutionary regime as it developed. While some took advantage of the personal opportunities to find places in a new elite, a surprisingly large number withdrew from public life. Some even refused to practise before the tribunals created by the Revolution. In the provincial centres of counter-revolutionary activity, lawyers and parlementaires re-forged their old alliances.53 Though lawyers may have discovered their identities as commoners in 1789, the majority of them undoubtedly reacted to the Revolution as lawyers of the ancien rigime. This meant that they regretted the wholesale reordering of institutions and laws. A nostalgia for the pro­ vincial autonomy and aristocratic associations of the pre-revolutionary past marked the legal professions of France far into the nineteenth century.54

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178 Lawyers in Pre-revolutionary France Notes 1. Lettres, on dissertation, ou I'on fait voir que la profession d’avocat est la plus belle de toutes les professions (1733). 2. Roland Mousnier, Les Hierarchies sociales de 1450 a nos jours (Paris, 1969), Ch. 5. 3. For the court system of pre-Revolution France, see Marcel Marion, Dietionnaire des institutions de la Prance aux XVIIe et XVIIIe siecle (Paris, 1923). 4. Maurice Gresset emphasises this distinction throughout his thesis, ‘Le monde judiciaire a Besan?on de la conquete par Louis XIV a la Revolution franjaise’, 4 vols., unpublished these pour le doctorat d’etat, Universite de ParisIV, 1974. There is a useful distillation of this huge work by the author: ‘Le Monde judiciaire au dernier siecle de 1’Ancien Regime’, L’lnformation historique, vol. 38 (1976), pp. 38-41. A published version of the thesis now exists under the title Gens de Justice a Besanpon: de la Conquete par Louis XIV a la Revolution franpaise (1674-1789). It is fundamental reading for those who desire a thorough study of lawyers, but I was unable to consult this version. All references are to the unpublished thesis. 5. A good survey of the functions performed by the different kinds of lawyers is provided in Pierre Paquin, Essai sur la profession d’avocat dans les duches de Lorraine et de Bar au XVIIIe sieclefyeidun, 1967). One should also consult con­ temporary manuals of practice for details. 6. Lenard R. Berlanstein, The Barristers of Toulouse in the Eighteenth Century (1740-1793) (Baltimore, 1975), pp. 5-10; Gresset, ‘Monde judiciaire’, vol. 1, p. 224-5; vol. 3, p. 692. For the rising prices of the attorneys’ office in Bordeaux (from about 4,000 livres in 1730 to over 15,000 livres in the 1780s) sec William Doyle, ‘Venality and Society in Eighteenth-Century Bordeaux’ in Pierre Butel (ed.), Societe et groupes sociaux en Aquitaine et en Angleterre (Bordeaux, 1979), pp. 204-11. 7. Berlanstein, Barristers of Toulouse, pp. 35, 38-9; Gresset, ‘Monde judiciarie’, vol. 2, pp. 339-465. 8. The activities and qualities of the barrister are well described in contempor­ ary professional manuals, such as Antoine-Gaspard Boucher d’Argis, Regies pour former un avocat (Paris, 1778), or Armand-Gaston Camus, Lettre sur la pro­ fession d’avocat (Paris, 1777). 9. Gresset, ‘Monde judiciaire’, vol. 2, pp. 261-3. 10. Paquin, Essai sur la profession, pp. 53-93. 11. Pierre-Nicholas Berryer, Souvenirs de Monsieur Berry er, doyen des avocats de Paris, de 1774 d 1839 (2 vols., Paris, 1839), vol. 1, p. 44. These memoirs offer many interesting perspectives on the training and career of a young advocate at the end of the old regime. 12. Berlanstein, Barristers of Toulouse, p. 12. Most of the growth was in the second half of the century. 13. Ibid., pp. 14-23; Gresset, ‘Monde judiciaire’, vol. 2, pp. 287-8. 14. Berryer, Souvenirs, vol. 1, p. 88. 15. Gresset, ‘Monde judiciarie’, vol. 3, pp. 682-701; Berlanstein, Barristers of Toulouse, pp. 67-73; Francis Delbeke, L 'Action politique et sociale des avocats au XVIIIe siecle (Paris, 1927), pp. 122-32. 16. Jean Sentou, Fortunes et groupes sociaux a Toulouse sous la Revolution (Toulouse, 1969), p. 81. 17. Berlanstein, Barristers of Toulouse, pp. 32-6, 44-6. Even in a city without an ennobling mayoralty, noble barristers were sometimes common. Gresset (‘Monde judiciaire’, vol. 3, p. 615) notes that 33 of the 113 inscribed advocates of Besanpon in 1738 were noble. Non-noble advocates frequently married daughters

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I Lawyers in Pre-revolutionary France

179

of minor noblemen: e.g. the future revolutionary, Bertrand Barere. 18. Delbeke, L'Action politique et sociale, p. 112. 19. An important work on these judges is Philip Dawson, Provincial Magis­ trates and Revolutionary Politics in France, 1789-1795 (Cambridge, Mass., 1972). 20. For a useful review of the contradictory findings on the prices of these offices, see Doyle, ‘Venality and Society’, pp. 213-14. The author detects the trend of rising prices in dynamic port cities and of declining prices in inland towns. 21. Among the best studies of this important social group are Robert Forster, The Nobility of Toulouse in the Eighteenth Century (Baltimore, 1960); William Doyle, The Parlement of Bordeaux and the End of the Old Regime, 1771 -1790 (New York, 1974); Francois Bluche, Les Magistrals du Parlement de Paris au XVIIIe siecle (Paris, 1960). 22. Cited in Franklin Ford, Robe and Sword: The Regrouping of the French Aristocracy after Louis XIV (New York, 1965), p. 36. 23. On the rising number of law graduates, see Richard Kagan, ‘Law Students and Legal Careers in Eighteenth-Century France’, P & P, no. 68 (1975), pp. 38-72. There was a dramatic decline in the number of men entering the priesthood at roughly tire same time as the bars of France were expanding. See Timothy Tackett, Priest and Parish in Eighteenth-Century France (Princeton, 1977), pp. 43-5. 24. A good example of such a town is provided by Olwin Hufton in Bayeux in the Late Eighteenth Century (Oxford, 1967). In 1789 this town had 1,200 adult males who exercised occupations; over 100 of these were lawyers or court officials. Dawson (Provincial Magistrates p. 35, n. 10) suggests that there were about 6,000 royal judges in France as a whole. 25. Berryer, Souvenirs, vol. 1, p. 41. 26. Laure Koenig, La Communaute des procureurs au Parlement de Paris aux XVIIe et XVIIIsiecles (Cahors, 1937); Gresset, ‘Monde judiciaire’, vol. 4, p. 979. 27. Berlanstein, Barristers of Toulouse, p. 29. 28. Gresset, ‘Monde judiciaire’, vol. 4, p. 979. 29. Jean Egret, Le Parlement de Dauphine et les affaires publiques dans la deuxieme moitie du XVIIIe siecle (2 vols., Grenoble, 1942), vol. 2, p. 83. 30. On these struggles see Jean Egret, Louis XVet I’opposition parlementaire, 1715-1774 (Paris, 1970). 31. Alfred Cobban, ‘The Parlements of France in the Eighteenth Century’ in his Aspects of the French Revolution (New York, 1968), pp. 68-82. 32. Berlanstein, Barristers of Toulouse, pp. 94-101. Note that Dawson finds a certain withdrawal from humanistic culture on the part of eighteenth-century judges (Provincial Magistrates, p. 120). 33. Daniel Roche, Le Siecle des lumieres en province. Academies et academiciens provinciaux, 1680-1789 (2 vols., Paris, 1978), vol. 1, pp. 233-55. 34. Philibert Bourgeon, Le Barreau de Dijon aux XVIIe et XVIIIe siecles (Dijon, 1885), pp. 71-2; Berlanstein, Barristers of Toulouse, Ch. 4; Robert Darnton, ‘The Encyclopedic Wars of Prerevolutionary France’, AHR, vol. 78 (1973), pp. 1331-52. 35. Berlanstein, Barristers of Toulouse, pp. 101-9. On criminal procedure, see Adhemar Esmein, Histoire de la procedure criminelle en France et specialement de la procedure inquisitoire depuis le Xlle siecle jusqu 'au nos jours (Paris, 1882). 36. John Mackrell, ‘Criticism of Seigneurial Justice in Eighteenth-Century France’, in John Boshcr (ed.), French Government and Society, 1500-1850 (London, 1973), pp. 128-34. For a general evaluation of judicial thought in the eighteenth century, stressing its limitations and lack of boldness, see John Mackrell,

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180 Lawyers in Pre-revolutionary France The Attack on ‘Feudalism’ in Eighteenth-Century France (London, 1973), pp. 48-59. 37. The bar of Grenoble opposed the creation of an arbitration board that poor litigants found beneficial because lawyers feared a loss of cases. See Egret, Parlemeiit de Dauphine, vol. 1, p. 84. 38. Colin Lucas, ‘Nobles, Bourgeois, and the Origins of the French Revolution’, Past and Present, no. 60 (August 1973), pp. 84-126. 39. Alexis de Tocqueville, L’Ancien Regime (Oxford, 1925), pp. 144-53. 40. Bcrlanstcin, Barristers of Toulouse, pp. 132-5. 41. Ibid., pp. 135-39. 42. The Age of Democratic Revolution, Vol. I: The Challenge (Princeton, 1959), pp. 86-7. 43. The best general study is Jules Flammermont, Le Chancellor Maupeou et les Parlements (Paris, 1883). 44. Jean Egret, The French Prerevolution, 1787-1788, trans. Wesley D. Camp (Chicago, 1977). Ch. 6. 45. A. Floquet, Histoire du Parlement de Normandie (7 vols., Rouen, 1840-2), vol. 6, pp. 226-49. 46. Egret, Parlement de Dauphine, vol. 1, pp. 86-8. 47. Gressct, ‘Monde judiciaire’, vol. 4, p. 1195. It is too often assumed that the parlementaires were champions of the interests of the nobility as a whole. In fact, they had often been the spokesmen for a ‘judicial’ interest and had been per­ ceived as such prior to 1789. See the suggestive article by Baily Stone, ‘Robe against Sword: The Parlement of Paris and the French Aristocracy, 1774-1789’, French Historical Studies, vol. 9 (1975), pp.278-303. 48. Lucas, ‘Nobles, Bourgeois’, pp. 120-1. 49. Paul Parisot, Essai sur les procureurs au Parlement de Bourgogne (Dijon, 1906), pp. 91-2. 50. According to one enumeration, 444 of the 648 delegates in the Constituent Assembly were lawyers or legally trained officers. This figure included 159 advocates, 47 attorneys and 90 officers of bailliages or senechausees. See Alfred Cobban, ‘The Myth of the French Revolution’ in his Aspects of the French Revolution, pp. 90-111. 51. For the judicial system created by the Revolution see Jacques Godechot, Les Institutions de la France sous la Revolution et I'Empire (Paris, 1951), pp. 116-25. 52. See Berlanstein, Barristers of Toulouse, Ch. 6. 53. David Higgs, Ultraroyalism in Toulouse from its Origins to the Revolution of 1830 (Baltimore, 1973), Ch. 2. 54. Andre-Jean Tudesq, Les Grands notables en France (1840-1849) (2 vols., Paris, 1964), vol. 1, Chs. 2-3.

9

LAWYERS AND LITIGATION IN CASTILE, 1500-1750

Richard L. Kagan

‘Litigation bred lawyers, and lawyers litigation.’ In the thirty years since J.E. Neale coined this familiar adage historians have done sur­ prisingly little to explore the importance of changing patterns of liti­ gation for the development and evolution of the legal profession, let alone the different kinds of lawyers which litigation bred. So with Castile, heart of the Spanish monarchy in the sixteenth and seventeenth centuries, providing the setting, this chapter proposes to take a closer look at the relationship between lawyers and litigation. It will examine first the changes in the legal profession wrought by a century of abun­ dant litigation, followed by those which resulted from an epoch in which litigation was apparently declining.

I

The Expansion of Litigation

The evidence is somewhat sketchy, but it now appears that the six­ teenth century was an era in which Castilians flocked in unprecedented numbers to settle their differences in court. Beginning late in the fifteenth century, and continuing almost uninterrupted until the second quarter of the seventeenth century, the number of lawsuits climbed sharply, especially in royal tribunals which, by the end of the sixteenth century, could barely cope with the demand. At the chancilleria of Valladolid, the most important of the monarchy’s five audiencias or regional high courts, tire number of civil lawsuits completed annually increased fromc. 530in 1500 toe. 1,400in 1580,a 200 per cent increase which far outstripped concomitant gains in population (Figure 9.1).1 Similar increases were evident in the crown’s other tribunals, including the Royal Council of Castile, the kingdom’s highest court of appeals.2 Nor was royal justice the only jurisdiction to prosper. Little is known about church courts during this era, but the tribunals of the Inquisition thrived on hundreds of cases of slander, palabras injuriosas and blas­ phemy despite strong competition from secular courts.3 Municipal and seigneurial jurisdictions also appear to have attracted new litigants, although the only lower court for which records exist are those of 181

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182 Lawyers and Litigation in Castile, 1500-1750

Toledo’s fiel del juzgado, a municipal judge with competence over the isolated villages of a mountainous region in the central reaches of New Castile.4 So great in fact was the increase in the number of legal actions dis­ patched in Castile’s courts that contemporaries could hardly fail to take note. As early as 1532 the Castilian Cortes complained to Charles V that ‘the number of lawsuits has and continues to grow so sharply that the cases cannot be dispatched with the speed that is necessary’.5 Charles responded by expanding the judiciary, but subsequent visita­ tions of royal courts continued to uncover a multitude of law suits, crowded dockets and long, almost interminable backlogs which allowed some cases to become immortal.6 Writing in 1566, Gabriel Monterroso y Alvarado, a scribe working in the chancilleria of Valladolid, noted that ‘lawsuits and conflicts among the populace are growing daily . . . already, the world is so engulfed and involved in these disputes that almost nothing is resolved except by the cloth of judgement’.7 In 1581 Tomas Cerdan de Tallada, a Valencian lawyer, agreed that law suits were ‘multiplying’ and attempted to explain why.8 Writing in the seventeenth century, the humanist writer Balthasar Alamos de Barrientos calculated that at least three-quarters of Castile’s population regularly engaged in law suits.9 His estimate was inflated but neverthe­ less suggests the degree to which educated Castilians believed that theirs was a litigious society. The reasons for this century-long increase in litigation need not detain us here, although the social tensions precipitated by demo­ graphic and economic growth, coupled with the rise of strong monarch­ ical government and the spread of education among society’s upper and middle classes seem to have been chiefly responsible.10 Litigiousness is not easily measured in quantitative terms because the data concerning law suits are generally so poor. But litigiousness is a qualitative matter as well — knowing how to tie up an opponent in legal red tape, how to force an advantageous court settlement, how to help one’s lawyers plan a successful case, and in general how to exploit the law successfully. By this standard, Castile’s nobility, nearly all her merchants and artisans, and most of her landed peasantry (labradores) were litigious.11 Equally so were widows of all social classes, if only because these women — hounded ruthlessly by their neighbours and relatives of their former husbands in this male-dominated society — turned regularly to the law courts for aid and support.12 So too did many of Castile’s small peasant communities, thanks to the willingness of the crown’s judges during this century to side with them in their disputes against nobles, their

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