Courts of Chancery, Barristers, and Solicitors

Microcosm_of_London_Plate_022_-_Court_of_Chancery,_Lincoln's_Inn_Hall_(tone)

Court of Chancery, Lincoln’s Inn Hall, 1808 ~ public domain

In the 15th Century, the Court of Chancery or of “equity” developed. It was under the lord high chancellor and provided an outlet for cases where results were not obtainable in the courts of common law. The courts of common law were the principal paths of royal justice by the 14th Century, making the common law rigid and inflexible. Relief customarily took the form of payment of damages and to the recovery of the possession of land and chattels. More complex situations were not addressed beyond the above-mentioned relief, often not treating complainants fairly and equitably. Moreover, during the 15th Century, powerful lords often bribed juries or defied court orders. 

“Disappointed litigants consequently turned to the king and council with petitions for justice. These petitions were referred to the lord chancellor, who by the 15th century had begun to build up a series of equitable remedies, together with policies governing their operation. In the exercise of his equitable jurisdiction, the chancellor initially was not bound by precedent, as were the common-law judges. He had wide powers to do justice as he saw fit, and he exercised them with a minimum of procedural formality. The chancery was relatively cheap, efficient, and just; during the 15th and 16th centuries, it developed spectacularly at the expense of the common-law courts. During the 17th century, opposition developed from the common-law judges and Parliament; they resented chancery’s encroachment upon the province of the common-law courts, and the chancellor was forced to agree not to hear any case in which there was adequate remedy, such as damages, at common law. 

“By the early 16th century, the development of a system of precedent exercised another restrictive influence on the continued growth of equitable remedies. Although most of the early chancellors had been clerics, the later ones were usually lawyers who used the newly initiated reports of cases to begin shaping equity into an established set of rules. By the middle of the 17th century, the equity administered by the Court of Chancery had become a recognized part of the law of the land. By the Judicature Act of 1873, the competitive, separate common-law law and equity courts in England, with their attendant delays, expense, and injustice, were abolished.” (Encyclopedia Britannica)

Therefore, the Court of Chancery was meant to settle cases involving trusts, wills, inheritance, and mortgages. Unfortunately, the the Regency Period, it was a mess of rules and regulations that could drag out for decades. Charles Dickens in Bleak House painted a picture of a good idea gone astray. A person who brought forth a suit had to be prepared for fees from solicitors and fees to the Commissioners, office fees, and the purchase of copies of the documents. Supplemental bills became necessary to reconstitute the circle of litigants after a death. Moreover, there were often fees to corrupt officials and clerks. “The documents in Jarndyce and Jarndyce were the stuff of legend.  Dickens wrote that upon the announcement of the Jarndyce case in court there was a ‘bringing in of great heaps, and piles, and bags full of papers’ and that once the ‘twenty-three gentlemen in wigs’ had argued for a bit and had the case ‘referred back, t’he copious documents were ‘bundled up again before the clerks had finished bringing them in.’ To top it all off, the process by which the court functioned was so technical and its procedures were so slow that ‘the length of time taken to decide even uncontested cases amounted to a denial of justice.’  This was a system ripe for abuse and certainly in need of reform.” (Law Meets Literature)

Chancery and the equity side of the Exchequer were the major courts of equity of the 18th Century. The work of barristers in these courts were not fundamentally different from common law practices. Teams of senior and junior barristers argued at major hearings, while single counsel would defend minor disputes. In suits of Chancery, where “Justice leaves Time the arbitor of all disputes and litigants leave their heirs more land than land to manage,” cases might last for years and create hundreds of rulings. 

As both Chancery and Exchequer met at Westminster Hall (and at Rolls and Lincoln’s Inn during holidays), they addressed issues not acceptable for the King’s Bench of Common Pleas courts. Therefore, by the 19th Century, barristers who practiced at Chancery were not required to “go on the circuit.” Chancery was not formally a court of record. It depended upon the opinions of the lord chancellor and his judges. It supposedly meant to deal with common sense and reason, rather than arbitrary laws.

Okay, what was the difference between a solicitor and a barrister in the Regency?

chancery-court

Lincoln’s Inn (Old Hall, Chapel, and Chancery Court), 1830 by Thomas Shepherd. ~ public domain

Nowadays, the basic difference between barristers and solicitors is that a barrister mainly defends people in court and a solicitor mainly performs legal work outside court. This was true also of the Regency, with some minor differences. 

Generally, to be a solicitor, a proctor, or an attorney, the man had to be an apprentice to a man practicing in the field in which he wished to practice: Common law, Chancery, or Civil law courts. Solicitors were regulated by parliamentary law while all the barrister/pleaders were regulated by their inns and the judges of the  courts to which they were admitted for practice.

There were different sorts of lawyers who practiced in different courts and required different training. Solicitors  were regulated by parliamentary law, while barristers were governed by the benchers of their Inn of Court.

Both solicitors and barristers had to have several years of training. Solicitors were to have five years as an apprentice, all with the same man,  so if his “tutor” died,  it was problematic for the apprenticed solicitor. At the end of five years, he could apply for recognition and admittance to practice as a solicitor. After his studies, he had to be recommended by the one who was training him and provide proofs of dates, etc. Sometimes they were given an exam on various aspects of the work required of them. If a man attained a university degree in civil law, he could be entered without the five years apprenticing. Most who attended university thought of becoming  barristers. They had to study at inns of court for four years after  university, where they called it “eating their dinners” and worked in the office of a barrister while they learned the law. When the barristers of their inn thought them ready, they were called to the bar. Solicitors dealt directly with clients, while barristers had contact only with the solicitor and depended on the solicitors for an adequate presentation of the case. Both had to be admitted to practice in the  different courts. King’s Bench and Common Pleas were common law courts as were Criminal court. Chancery was a court of equity and the church courts were for marriages and wills  were under civil ( Roman) law. Many solicitors became very wealthy, though it was usually the barristers who went on to the peerage.

It took about seven years to become a good solicitor. Solicitors had a lower social standing than did barristers, for the most part, because they did the work and  money into their hands. However, they often became very rich. The man needed someone to recommend him for the study of law. He must read law for seven years if he did not go to university. It was better for him if he attended university and studied law there, but universities only taught civil law and the courts were mainly common law courts. However, going to university would cut his time at an inn of court down to about three years of working with someone (apprenticing) and eating his dinners there. The solicitors, proctors, and attorneys spoke with clients and drew up proper forms and created deeds, wills, and contracts. Some solicitors acted as men of business for large landowners.

The barristers, advocates, and sergeants (higher level barristers)  were the ones who could speak in the higher courts and present the case. Quite often they only spoke to judges  and not to juries. These men were not supposed to converse with the client at all.

Criminal practice was just coming in as a area of practice as it wasn’t yet common for all accused  or even the prosecution to have a lawyer. Barristers, sergeants, and advocates could also just be asked a point of law, even if it would not be necessary for them to defend or prosecute a case.

Could a foreigner be a barrister? Almost every profession required an oath of allegiance to the Church of England  and at least a show of having taken Communion. 

533503790c9e0ca28ddc420c8ca30a47

Lincoln’s Inn, Holborn Interior view of Lincoln’s Inn old hall

Bright Knowledge explains the current differences between solicitors and barristers: “When people talk about going to see their lawyer, it is usually a solicitor that they will contact. Solicitors can work for a big range of organizations, including” commercial or non-commercial law firms, the government, private businesses, banks, and corporations. They have specialized knowledge of different areas of the las such as family, crime, finance, property and employment. Most of the time solicitors advise clients, undertake negotiations and draft legal documents. It is primarily a desk job, but does involve traveling to see clients and representing them in court. In the past, a solicitor’s advocacy work was restricted to magistrates’ courts (where less serious cases are dealt with) and minor cases in county courts, but now there are a few solicitor advocates who work in the higher  level courts.

“Barristers can be distinguished from a solicitor because they wear a wig and gown in court. They work at higher levels of court than solicitors and their main role is to act as advocates in legal hearings, which means they stand in court and plead the case on behalf of their clients in front of a judge. They also have specialist knowledge of the law and so are often called on to give legal advice. Barristers do not come into contact with the public as much as solicitors. They are given details of a case by a solicitor and then have a certain amount of time to review the evidence and to prepare what they are going to say in court (a pleading). Most barristers are self-employed and work in Chambers with other barristers so they can share costs of accommodation and administrators. They can also be employed in-house as advisors by banks, corporations, and solicitors firms.”

 

Advertisements

About reginajeffers

Regina Jeffers is the award-winning author of Austenesque, Regency and contemporary novels.
This entry was posted in Act of Parliament, British history, buildings and structures, Georgian England, history and tagged , , , , , . Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s