But in addition to these new regulations by parliament, and these more private endeavours, the profession continued to be under the control of the judges in a more minute way. Most of the cases cited in the law reports refer to small points of practice, but there are one or two which have a more general interest. Perhaps the most famous of these was Frazer's Case of 1757, in which the Society of Gentlemen Practisers was concerned. Frazer was an attorney of the court of King's Bench, and had taken as his clerk a turnkey of the King's Bench prison, so that he could be concerned professionally for all the prisoners who needed legal assistance. Since 1755 he had been concerned in sixty-three cases of this kind. Complaint was made to the court, and it was decided that the articles were merely collusive, and they were ordered to be cancelled. The judge gave it as his opinion that 'the exercise of the office of a turnkey in a prison was, both in itself, and also according to the intent and spirit of the act for regulating attornies, a very improper education for an attorney'.1

Blackstone considered that attorneys were 'peculiarly subject to the censure and animadversion of the judges',2 and it is certainly true that many of them were not always able to resist the temptation to play to the gallery, and score off the attorneys. Jeffreys had set the tone, and it was taken up during the eighteenth century by others, Thurlow, Willes,3 and Kenyon, for example. Kenyon,

1 Sir James Burrow, Reports of Cases adjudged in the Court of the King's Bench, 30 Geo. II to 12 Geo. III, 1 (1766), 291; 5 May 1757. For a case in which Mansfield was concerned, see ibid. IV, 2061 (1767). Mansfield was perhaps kinder to the profession than many of his colleagues on the Bench. It was he who was responsible for establishing the doctrine of lien, whereby attorneys could retain their clients' papers as a surety for the payment of their bills (Christian, Short History, pp. 165-6), and who was prepared to acknowledge that the 'part of the profession which is carried on by Attorneys is liberal and reputable, as well as useful to the public, when they conduct themselves with honour and integrity: And they ought to be protected when they act to the best of their skill and knowledge'.

2 Commentaries, III (1768), 26.

3 It was of Willes that Horace Walpole wrote: 'He had a great quickness of wit, and a merit that would atone for many foibles—his severity to, and discouragement of, that pest of society, attorneys. Hence his court was deserted by them, and all the business they could transport carried into Chancery, where Yorke's filial piety would not refuse asylum to his father's profession' (Memoirs of the Reign of George III; quoted Campbell, Lives of the Chief Justices, II (London, 1849), 276). Yorke was the son of a Dover attorney.

4 For the case of an attorney who retaliated by laying an information against Camden and three other judges for wearing cambric bands in court, contrary to act of parliament, see W. E. H. Lecky, A History of England in the Eighteenth

indeed, according to Lord Campbell, was too often undiscriminating in this matter. 'He encouraged that universal prejudice against attorneys by which I have frequently seen the administration of justice perverted. Although bred in an attorney's office and long aspiring no higher than to be an attorney, he seemed to think the whole order pettifoggers and their occupation almost necessarily disreputable. Instead of restricting his animadversions to peccant individuals', Lord Campbell continued, 'he extended an angry suspicion to a whole class, containing many men as honourable as himself, and much his superiors in education and manners.'1 But some attorneys welcomed Kenyon's concern for the professional behaviour of their colleagues. On one occasion at least he appears to have made just such a distinction as Campbell wanted,2 and on another he gave judgment in favour of an attorney who complained that he had been libelled by a peer of the realm.3 The effectiveness of the regulation of the profession by the judges, however, depended to a great extent on the willingness of other people to bring cases of misbehaviour by attorneys into the courts. The activities of the Society of Gentlemen Practisers in this matter will be considered in detail in the chapter which follows. Century (ed. 1920), VII, 302 and n. 4. There are several cases of the regulation of the attorneys on points of practice in the various law reports of the period. For these, see Holdsworth, op. cit. XII, 118-26.

1 Campbell, op. cit. III, 83; see also Christian, Short History, pp. 161–5.

2 Cf. Gentleman's Magazine, LXIII, February 1793, 182: 'His Lordship said he believed that the majority of Attornies were honourable men, and of service to the community; but there were many others who were the greatest pests to society. He desired Attornies to take notice that they were bound to give their clients the best advice in their power, and to conduct the causes entrusted to them as if they were their own....' The Pettifogger Dramatized (1797), which was dedicated to Kenyon, insisted on such a distinction, and was prefaced by a quotation from a sermon by the Rev. Jethro Inwood making the same point.

3 In a speech in the House of Lords on 17 June 1794, the Earl of Abingdon called attention to the immoral practices of attorneys, 'those locusts of the law, the pettifogging Attornies of this country; who, like the locusts in Africa, fall like a cloud upon the earth, and eat up everything they meet with'. He instanced the conduct of one of them, Thomas Sermon of Coney Court, Gray's Inn, who had been employed by himself, and sent his speech to the newspapers for publication. Sermon brought an information against Abingdon for libel in the court of King's Bench. The case was heard by Kenyon, and Abingdon was found guilty, and was sentenced to three months' imprisonment, and fined £100. (Cobbett, Parliamentary History, XXXI, 932-5; Isaac Espinasse, Cases at Nisi Prius in King's Bench and Common Pleas, 1 (2nd ed. 1801), 225–8; D.N.B.)

CHAPTER III

THE SOCIETY OF GENTLEMEN

'1

PRACTISERS

'AT a meeting of the Society of Gentlemen Practisers in the Courts of Law and Equity, held on the 13th February, 1739, the Meeting unanimously declared its utmost abhorrence of all male [sic] and unfair practice, and that it would do its utmost to detect and discountenance the same. This is the first entry in the minute book of the society, and it seems to indicate that the society had not long been established. There is no information about the events leading up to its foundation. Like most professional bodies in England, it was voluntary in origin, and during the eighteenth century at least, it remained independent of external authority. The scope of existing regulations permitted it to put its first resolution into practice, without being specifically authorised to do so either by the judges or by parliament. For the rest, it was, like many others at this time, largely a convivial society, meeting twice a year to have a dinner, and to hear what the committee had been doing.

In retrospect, of course, the drawbacks of its independence are apparent, and even during the eighteenth century there were those who believed that such a society could not adequately control the profession. But its minutes show a record of activity perhaps surprising to those who believed the attorneys to be wholly devoid of public spirit, or to those who, like Bentham, thought it unrealistic to suppose that they would ever concern themselves with professional morality. So the history of the society is another important sign of the growing concern which some attorneys were feeling about the public status of their profession. And it does not necessarily detract from its achievement that it owed much of its impetus to the realisation of its members-the more affluent part of the profession practising in London-that 'true self love and social'

1 Records [of the Society of Gentlemen Practisers], ed. Edwin Freshfield (London, 1897), p. 1. Holdsworth dealt with the activities of this body in the History of English Law, XII, 63-75, but it seems desirable to deal with it at some length in the present context.

2 See the criticisms of Joseph Day, pp. 31–4 below.

might coincide. Completely disinterested reformers are rare, and are inclined to an idealism which too readily ignores the general temper of the age in which they live. The effectiveness of the work of this society and of others like it was due to the fact that they were swimming with an increasingly powerful tide.

In addition to the two general meetings, held on the day after the beginning of the Hilary and Trinity Terms, it was agreed that a committee should meet once a month to consider how the aims of the society might best be achieved.1 The officers of the society were a prolocutor, a secretary, and a deputy-secretary who acted as treasurer. At the beginning there were twenty-one committee members, five of whom constituted a quorum.2 The main burden of the society's work fell on a small number of enthusiasts—so small indeed that the committee meetings had often to be postponed for want of a quorum. From time to time, ad hoc committees were appointed to study special problems, to draw up petitions and memorials, or to convey the thanks of the society to some benefactor. At critical times, the secretary's work could be very heavy, but he received no regular payment, and the office was commonly held by the same man for lengthy periods. On occasion, the society rewarded the devotion of its officers by voting them specific sums. In 1781, for example, 50 guineas were given to Edward Bowman in consideration of his 'long service...and the very small gratuities he had received for his trouble therein'.3

The subscription was fixed at half a guinea a year. In November 1758 it was raised to meet the costs of the society's dispute with the Scriveners' Company. When it had recovered from this heavy drain on its resources, the society began to invest in consols, and thus created a fund from which future needs of this kind, and all unexpected expenses, could be met. Occasionally, however, members were asked for special contributions for particular needs. By February 1810 the society held £1000 3% Consols, yet in July of that year the committee suggested that the subscription should

1 See V. I. Chamberlain, "The Early History of the Incorporated Law Society', Law Quarterly Review, VIII (1892), 41: 'The usual meeting place was the Old Devil Tavern...a place of resort... frequented by lawyers, who wrote up on their chamber doors "Gone to the Devil"."

2 In order to ensure the attendance of a quorum, the numbers of the committee were increased from time to time, a rota was drawn up, and fines for absence were imposed. See Records, pp. 30, 145, 170, and 173.

3 Records, p. 152.

be increased to two guineas a year1 'in order to support the credit and respectability of the society, and to defray the contingent expenses lately incurred in protecting and supporting the general interests of the profession, and to make provision for similar expenses in the future'.2

At a general meeting held on 23 February 1742 ‘it was ordered that all proper and necessary enquiries be made by the Committee to discover any attorneys or solicitors who had been or should be surreptitiously admitted: That every member of the society should use their utmost endeavours to discover and discountenance any such practice, and that the committee should use such ways and means as they should find most necessary to prevent such practices in the future'. In 1752 this resolution was supplemented by the further one which instructed the committee to 'take notice of, and prosecute, at the society's expense, any attorneys found guilty of illegal practices, and every member was desired to give notice to the Deputy-secretary of all such illegal practices as should come to their knowledge'.4 What the society did on the basis of these resolutions is shown in detail in the minutes.

It was clearly work which could be done more easily for attorneys and solicitors practising in London and the Home Counties. Until communications had improved, and the provincial law societies had come into existence, it was difficult to obtain accurate and upto-date information about the activities of provincial attorneys and their clerks. But by 1802 at any rate, the activities of the society were sufficiently widely known for it to be asked to act against attorneys suspected of unprofessional conduct in Birmingham and in Jersey.5

In London, however, the society found much to occupy its attention, and from the start it acted with some vigour and success in controlling admissions to the Rolls, and in bringing instances of malpractice and the violation of the acts governing the profession to the notice of the courts. In 1753, it secured the removal from the Roll of the Court of King's Bench of an attorney who had continued to practice while detained in the Fleet prison, and it was announced in the court that 'the society would at all times be 1 It had previously been raised from half a guinea a year to three guineas payable over two years.

2 Records, p. 228.

4 Ibid. p. 51.

3 Ibid. p. II.

5 Ibid. pp. 180, 184.

• Contrary to the stipulation of 12 Geo. II, c. 13, sect. ix.