But the complaints about attorneys continued, and the act of 14551 to limit the number of attorneys in Norfolk and Suffolk was in answer to a petition which said that there were many people 'not being of sufficient cunning 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 make untrue suits, foreign suits, for light offences and small sums of debt', and asked that the number of attorneys allowed to practise in the two counties should be limited to fourteen-six for each county and two for Norwich.

By the sixteenth century the present distinction between barristers and attorneys existed and was insisted on. It was given institutional representation in the deliberate attempt to exclude attorneys from the Inns of Court in order to prevent them being called to the bar. The character of the attorneys' work can be defined negatively as comprising all that barristers did not insist on keeping to themselves. Beyond this, it was decided by the demands of society, demands which ultimately had the result that attorneys did much work which had habitually though not legally been confined to the bar. In the sixteenth century it is possible to say that attorneys existed as a professional class in the sense that men now generally turned for legal aid to a man of some professional training and experience, and that many such men existed. But it would be too much to say that they were a professional class if by that is implied the existence of professional institutions and fixed standards of professional education and conduct. Indeed, it may be that a professional class in this sense existed less and less during the sixteenth and seventeenth centuries as the almost exclusive concentration of lawyers in London was broken down, and men were increasingly able to find enough problems of a legal sort to occupy them in a country practice, problems which might only rarely bring them up to attend on the courts in London.

This being so, whatever degree of institutional representation had formerly been given to the attorneys by membership of the Inns of Court or Chancery was diminished, though the attempt of the judges to insist on it, in order to have some control over the profession, went on long after it ceased to be desirable, or even feasible. These attempts may, indeed, be indirect recognitions on the part of the judges that the profession was growing larger and

1 33 Henry VI, c. 7.

more scattered and hence less controllable, compelling them to insist on outmoded means of regulation because no others existed.

In the main act of parliament which sought to control the attorneys before the eighteenth century, they were linked with the solicitors.1 Just as the attorneys had come to perform whatever were not the exclusive functions of barristers, and to fill a need which the barristers could not completely satisfy, so the solicitors arose to answer needs catered for neither by barristers nor attorneys. The solicitors were a group known in the fifteenth century.2 They assisted the attorneys, and managed business which fell outside their scope. They were not officers of the common law courts, and it was to the development of 'the new work and new needs introduced by the growth of the jurisdiction of such courts as the Star Chamber, the court of Chancery, and the court of Requests, that the solicitor owes his elevation from the position of the servant or agent of the litigant or attorney, to the position of a professional man on a level with the attorney'.3 By the middle of the sixteenth century they were a group sufficiently definite to be excluded along with the attorneys from the Inns of Court. During the seventeenth century attempts were made to define the solicitors' work, claiming that 'It is not enough for the Solicitor to be, as it were, the Loader to the Attorney, or the Intelligencer to the Client'.5 These had been the earlier functions of the solicitors, but by the middle of the century certainly they had come to have a more closely defined sphere of practice in which they were alone. A certain amount of prejudice against solicitors was still felt by attorneys, but as attorneys came to practise as solicitors, and solicitors of five years' standing could practise as attorneys, the division between them became blurred.

At any rate they were lumped together in 1605, and contrasted with the 'just and honest serjeant and counsellor at law', who considered themselves 'greatly slandered' by the disrepute into which the conduct of their inferior brethren brought the profession of

1 3 Jac. I, c. 7; an act 'to reform the multitudes and misdemeanours of attornies and solicitors at law'.

2 By c. 1450 the term 'solicitor', used earlier simply of one who 'urges, instigates, or conducts business on behalf of another person', had come to mean one who concerned himself with legal business but who was neither an attorney nor a barrister (Holdsworth, op. cit. VI, 449).

3 Ibid. pp. 454-5.

4 Ibid. p. 449.

5 Compleat Solicitor, 1668; quoted ibid. p. 452.

the law. Some differences between attorneys and solicitors were recognised. Attorneys were required to have been brought up in the King's Courts, or be 'otherwise well practised in soliciting of causes', and also 'have been found by his dealings to be skilful and of honest disposition'. All that was required of a solicitor was that he should 'be a man of sufficient and honest disposition'.1 The act further provided that an attorney was to produce receipts for any fees he claimed to have paid on behalf of his 'client or master', together with an elaborate statement of all the work he claimed to have done. Heavy penalties were imposed for delaying suits, and attorneys were not to allow unqualified persons to bring suits in their names.2

Although there was no more legislation to discipline the profession between this act and that of 1729, there were frequent complaints about the excessive numbers of attorneys. There was a parliamentary committee on the subject in 1672, and a bill in parliament in 1700. In the absence of legislation, however, there was a good deal of activity on the part of the judges to control the profession. They tried to keep down numbers by insisting on a fixed period of apprenticeship before admission. A rule of the court of Common Pleas of 1633 prescribed six years' service as a clerk to an attorney. It was followed in 1654 by a rule of the Judges of the Upper Bench prescribing a period of five years' apprenticeship, and an examination to prove the candidate 'of good ability and honesty for such employment'. At least twelve examiners were to be appointed every year to conduct this examination. It was claimed that these examinations were not rigorously insisted on for many reasons, among them the conduct of the judges themselves. ‘A judge considers every attorney he admits as a new client who may bring him business, and therefore his lordship is not severe respecting the attorney's knowledge, the want of which tends to increase the business of the judge's chambers."

Nevertheless, both in London and on circuit the judges did

1 Quoted Holdsworth, op. cit. p. 456.

2

By the regulating act of 1729 sworn attorneys were entitled to practise as solicitors without paying additional fees, but it was not until 1750 that sworn solicitors were granted the reciprocal advantage of practising as attorneys. All trace of the division disappeared when the Judicature Acts of 1873 classed them all as solicitors of the Supreme Court.

3 Cunningham, The History and Antiquities of the Four Inns of Court..., extracted from Dugdale (1780); quoted Christian, Short History, p. 82.

something to control the professional conduct of attorneys. In Cambridge, for example, in 1665, 'John Patteson an Attorney at Law stood in the pillory on the Pease Hill...from about a quarter after eleven in the forenoon, to about half an hour after twelve of the clock having fastened to the fore part of his hat being on his head a paper written in capital letters (a common barrator) being sentenced by Judge Keeling at the...Assizes'.1

In theory the control of the profession was complete at the beginning of the eighteenth century. The practice and the numbers of the attorneys were controlled by parliament, and this was supplemented in detail by the orders of the judges which affected all who wished to practise in their courts. In theory there was a fixed period of apprenticeship, and an examination before admission to the Roll. In theory they were all 'brought up in the courts or otherwise well practised in soliciting causes and proved by their dealings to be skilful and honest'. No one in the early eighteenth century could have believed that this was the case with the profession: there were, perhaps, not many who believed that any laws could ensure that attorneys would be 'skilful and honest', 'good and virtuous and of good fame'. Fewer still can have expected that attorneys themselves would ever be concerned to see that theory and practice should in this matter more nearly coincide.

1 Cambridge Antiquarian Society, Octavo Publications, XXIII (1890), The Diary of Samuel Newton, 1662–1717, p. 10.

CHAPTER II

REGULATION OF THE PROFESSION

ON 4 February 1700 Evelyn noted in his diary that the House of Commons had 'voted that the exorbitant number of attorneys be lessened, (now indeed swarming and...eating out the estates of people, provoking them to go to law)'. In March 1701 leave was given to bring in a bill for the reduction of the number of attorneys and solicitors, and for regulating their practice.1 It received its second reading on 16 April, and was committed to the legal members of the house, but is not mentioned again.

The judges continued their work in the absence of this act, and controlled the profession with the means at their disposal. In 1704 they laid it down that all attorneys should belong to some Inn of Court or Chancery. This, however, proved impossible to enforce. The Inns of Court existed for quite other purposes than the judges were seeking to use them for, and could not be compelled to admit attorneys. The barristers, perhaps resenting the encroachments of the attorneys, and determined to preserve some distance and distinction between them, were successful in their attempt to exclude the attorneys from the Inns of Court.2

What in part the judges had wanted was that each attorney should have a London address where writs and the like could be served on him, as well as putting them under the control of some body which could supervise them more closely than had been possible in the past. It may be that the judges knew that the Inns of Court would not admit the attorneys, and that they would in consequence be forced into the Inns of Chancery, which had been more properly their province, and which in the early stages of the

1 Commons Journals, XIII, 31 March 1701. It seems to have aroused at least one pamphlet: Observations on the Dilatory and Expensive Proceedings in the Court of Chancery, etc. (1701) (see bibliography for full title).

2 On this, see Holdsworth, op. cit. VI, 441; and H. Hale Bellot, 'The Exclusion of the Attorneys from the Inns of Court', Law Quarterly Review, XXVI, 137-45. In 1706 a bill was introduced by Lord Somers into the House of Lords to regulate proceedings at law. The bill was passed by the Lords, but defeated in the Commons, where 'the interest of under-officers, clerks, and attornies, whose gains were to be lessened by this bill, was more considered, than the interest of the nation itself' (Cobbett, Parliamentary History, VI, 517–18).