In a valuable monograph on the Star Chamber, written before 1635 by William Hudson, of Gray's Inn, but not published until 1792, there occurs the passage, 'In our age there are stepped up a new sort of people called solicitors, unknown to the records of the law, who, like the grasshoppers in Egypt, devour the whole land'.

But by the end of the eighteenth century the wheel had turned full circle. Dr Robson tells us, on page 152, that one of the characters in Maria Edgeworth's novel, Patronage, published in 1814, remarked, ‘There are no such things as attorneys now in England, they are all turned into solicitors and agents, just as every shop is become a warehouse, and every service a situation'.

Dr Robson explains this change of fashion by the fact that the adjective 'pettifogging' had come to be linked all too frequently with the noun attorney, while solicitor suffered from no such pejorative association.

At any rate it is as 'solicitors' that the 'gentlemen practisers in law and equity' preferred to be known, and the title was given statutory recognition in the Judicature Acts, 1873-5. And so the sonorous title 'attorney' survives in England only as that of the Leader of the Bar, though in the United States it flourishes in high esteem side by side with the excellent word 'counsellor'.

I hope that some of the thousands of solicitors practising in this country may catch sight of an advertisement of Dr Robson's book, and may be inspired to purchase it for their firms and thus encourage further research into the antiquities of their profession.

December 1958

H.A. H.

PREFACE

THERE has been no previous attempt at a social history of the profession of attorneys and solicitors in eighteenth-century England. In recent years there have been studies of the parish clergy and of the medical professions during this period. These are as yet unpublished, and I am grateful to their authors, Mr P. A. Bezodis and Dr B. M. Hamilton, for allowing me to see their work. My own research has in some ways proved complementary, and has suggested that this was a period of crucial importance for the history of the professions in England. It has also tried to show how important the attorneys were in the working of English society in the eighteenth century.

The main MS. sources which have been used are indicated at the end of the work. In general, the working papers of attorneys have proved of limited use for a study of this kind, and are difficult to quote briefly and intelligibly. They have, however, been extremely useful in creating an impression of the nature and of the importance of the attorney's work, even when, as is often the case, the attorney's personal papers have been destroyed and only those belonging to his clients have been preserved. I am most grateful to the various county archivists and librarians whose papers I have used, and particularly to Mr F. G. Emmison of the Essex County Record Office, and Mr W. P. Lamb, formerly the City Librarian of Sheffield, for their kindness in depositing bulky collections of documents for lengthy periods in my college library. Mr T. Gray of the Cumberland County Record Office allowed me to arrange the unsorted Hodgson papers so that I might use them more conveniently.

For permission to use the Wentworth Woodhouse papers at Sheffield I am indebted to Earl Fitzwilliam and his trustees of the Wentworth Woodhouse Settled Estates. The Librarian of the Royal Institution of Cornwall enabled me to see the Journal of Christopher Wallis deposited with him by Mr J. Percival Rogers. quote from W. E. Beasley, The Early History of a Leicester Firm of Attorneys, by permission of Mr Beasley's Executors, and from The Memoirs of William Hickey, vol. I (1913) by permission of Messrs Hurst and Blackett, Ltd. I have also received help from

many persons and societies who possessed records of eighteenthcentury attorneys. These include Mr A. N. L. Munby, Mr R. C. Reginald Nevill, Mr Henry Potts, and the secretaries of the Liverpool Underwriters' Association and of the provincial law societies mentioned in chapter IV.

The many pamphlets which have proved valuable are listed at the end. Some of these are only available in the Library of the Law Society in Chancery Lane, and I am indebted to the Council of the Law Society for permission to consult them there.

The attorneys touched society at many points, and there are traces of their activities in many of the contributions which have been made to the social, political, and economic history of the period. Where I have made use of these, I have indicated the work in footnotes, and for that reason I have not compiled a separate bibliography of secondary works. The only ones which are directly relevant are three short volumes by E. B. V. Christian, A Short History of Attorneys and Solicitors (London, 1896); Leaves of the Lower Branch: the Attorney in Life and Letters (London, 1909); and Solicitors: an Outline of their History (London, 1925).

This subject was suggested to me by Dr J. H. Plumb, and my work on it was supervised by Dr Plumb and by Dr G. S. R. Kitson Clark. I am deeply indebted to both of them for much encouragement and advice over a lengthy period. I have also benefited greatly at a later stage from the comments of Professor H. J. Habakkuk, Professor Edward Hughes, and of the Editor of this series, Professor H. A. Hollond. It is my fault that this work is not more worthy of the attention which has been bestowed upon it by these scholars, and of the generosity with which the Master and Fellows of Trinity College surrounded its writing and rewarded its completion.

TRINITY COLLEGE

CAMBRIDGE

26 June 1958

R. R.

CHAPTER I

ATTORNEYS AND SOLICITORS

BEFORE 1700

THE present division of the legal profession into barristers and solicitors existed in the eighteenth century, and the division of labour in its present form had in many respects already been established. Indeed, as far as the essential difference between the two branches of the profession was concerned, the distinction between those who were permitted to plead a client's cause before the judges, and those who could only conduct it up to this stage, it may be said to have existed in the sixteenth century. This distinction was marked by a difference in the organisation and regulation of the two branches, and was itself the product of the theory and practice of the law in medieval England.1

The idea that a man could stand in place of another in legal disputes, that he could be his attorney, was alien to early conceptions of the law, and was perhaps inappropriate to the simpler structure of society. To appear in court by attorney was at first a privilege restricted to the king, for whom such a representation was an obvious necessity. Gradually the privilege was extended to others, but it survived surprisingly long as a privilege, and was not readily conceded as a right to be demanded by all litigants. Eventually, however, the concession which the king at first allowed to favoured subjects was made to all who sought it. The growing complexity of society and of its laws involved more and more people in litigation, and in litigation so abstruse as to demand the technical assistance of those skilled in the law. It was in response to this need that the legal profession arose, and naturally enough, attorneys came to be chosen from those who, by habitual attendance on the courts, had acquired a special knowledge of their practices.

But if the appointment of an attorney was at first rare because it

1 This historical introduction is based entirely on secondary sources, namely, F. Pollock and F. W. Maitland, The History of English Law (2nd ed., Cambridge, 1923); W. S. Holdsworth, A History of English Law, 11 (3rd ed., London, 1923), VI (1924), and XII (1938); and E. B. V. Christian, A Short History of Solicitors (London, 1896).

conflicted with early notions of the law, the assistance of a pleader was commonly allowed and was entirely in harmony with these ideas. The pleader or barrister did not stand in his client's place, but only used his skilled voice on his behalf, and this was not a function which had to be conceded as a privilege by the king or his judges. Consequently there was in the case of the barristers no basis for the kind of control to which the attorneys, in their highly privileged and slightly unusual position, were submitted. They lived in the Inns of Court in circumstances chosen for their own convenience, and admitted newcomers to membership on conditions which they themselves laid down.

The attorneys in contrast were early subjected to close regulation by the judges and by parliament. And, whereas the barristers organised themselves in the Inns of Court, the attorneys were compelled to belong to the Inns of Chancery by the judges, and the Inns of Chancery were themselves dependent on, and subordinate to, the control of the Inns of Court. "The attorney was never allowed to forget that he was an officer of the court and subject to its discipline. The barrister, on the other hand, was in no sense an officer of the court, and was much less directly under its control."1

As early as 1292, 'The king directed his justices to provide for every county a sufficient number of attorneys and apprentices from among the best, the most lawful, and the most teachable, so that the king and people might be well served'. On this occasion it was suggested that 140 such men might be enough, but the matter was left to the discretion of the judges.

This matter of the number of attorneys was a chronic complaint, and in 1402, as a result of such grumbling, it was enacted that all attorneys should be examined by the judges before being put on the Roll. They were to be 'good and virtuous and of good fame', and 'received and sworn well and truly in their offices'. And it was further laid down that ‘if any such attorney be hereafter notoriously found in default of record or other wise, he shall forswear the court and never be received to make any suit in any court of the king'. In London, and later elsewhere also, special rules governed the behaviour of attorneys who were admitted to practise in the local courts.

1 Holdsworth, op. cit. VI, 434.

2 Pollock and Maitland, op. cit. 1, 216.

3

4 Henry IV, c. 18: Christian, Short History, p. 19.