Previously, I did a post about barristers, solicitors, and lawyers, but I have had a few questions come up since then, so I am going to repeat some of what I had written back on April 12, 2017, but add to it to clarify the differences and hopefully answer the questions two readers sent to me.
Question #1: Could a young man of the merchant social class “choose” to become a barrister? If so, how would he go about it?
The simple, or not so simple, answer is “Yes.” He could become a barrister, but it would not be easy. The candidate who wished to practice law had to have someone recommend him, meaning someone from the gentry or the aristocracy. It would be necessary for him to read law for seven years if he did not go to university. Best thing he could do would be to go to university and study law there, which would cut his time at an Inn of Court down to about three years of working with someone and eating his dinners. However, going to university during the Regency era could be expensive, as was, basically, living one’s life at the Inn of Court or in residence with a barrister. Remember, the candidate would be paying out funds, even those candidates whose family shoulder the cost paid out funds, needed something to live on. The man would have little or no income for seven years. All that is assuming a university would accept him or an Inn of Court would accept him. My answer would be, though not impossible, certainly not an easy route, for the man, no matter if he was richer than those sons of gentlemen and the aristocracy, would not be easily accepted into the profession. Read on…
In present day UK, the Inns of Court in London are the professional associations for barristers in England and Wales. There are four Inns of Court: Gray’s Inn, Lincoln’s Inn, Inner Temple and Middle Temple. All barristers must belong to one of them. They have supervisory and disciplinary functions over their members. The Inns also provide libraries, dining facilities and professional accommodation. Each also has a church or chapel attached to it and is a self-contained precinct where barristers traditionally train and practise, although growth in the legal profession, together with a desire to practise from more modern accommodations, caused many barristers’ chambers to move outside the precincts of the Inns of Court in the late 20th century.
“During the 12th and early 13th centuries the law was taught in the City of London, primarily by the clergy. But a papal bull in 1218 prohibited the clergy from practising in the secular courts (where the English common law system operated, as opposed to the Roman civil law favoured by the Church). As a result, law began to be practised and taught by laymen instead of by clerics. To protect their schools from competition, first Henry II and later, Henry III issued proclamations prohibiting the teaching of the civil law within the City of London. As a result, the common law lawyers moved to premises outside the City, which in time became the inns of court.
“In the earliest centuries of their existence, beginning with the 14th century, the Inns were any of a sizable number of buildings or precincts where lawyers traditionally lodged, trained and carried on their profession. Over the centuries, the four Inns of Court became where barristers were trained, while the more numerous Inns of Chancery—which were affiliated to the Inns of Court – were responsible for the training of solicitors. In the 16th century and earlier, students or apprentices learned their craft primarily by attending court and sharing both accommodations and education during the legal terms. Prior to the English Civil War in 1642, this training lasted at least seven years; subsequently, the Inns focused their residency requirements on dining together in the company of experienced barristers, to enable learning through contact and networking with experts. In the mid-18th century, the common law was first recognized as a subject for study in the universities, and by 1872, bar examinations became compulsory for entry into the profession of law.” [Inns of Court]
Though the Inns of Court had once been regular law schools, they really were not conducted in that manner by the time of the Regency. The men who wanted to be lawyers worked/apprenticed in a lawyer’s office. They read law, studied the latest rulings, etc., and “ate their dinners.”
Though attending university for three years reduced the time the man had to “eat his dinners,” the universities did not have any courses in the common law. Those they had to learn by reading cases and listening to barristers work and hunting up the law. The universities taught civil law, and those who graduated with a civil law could practice in the church courts, admiralty, probate and marriage. Some cross trained, and others stayed either as a civil or common law professional. Those training to be a barrister customarily spent time “reading in chambers,” meaning he spent time with a barrister to whom he has paid a fee for the privilege of “training” with the practicing barrister. Nowadays, this is two years’ stint with the candidate spending a year with two different barristers. The most important duty a future advocate had to take and which was compulsory was to eat a certain number of dinners in the hall of his Inn. This is called “keeping terms.” The legal year has four terms: Hilary, Easter, Trinity, and Michaelmas. I am not certain how many meals were to be kept during the Regency, but in today’s terms, the candidate must take six meals during each term.
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: C=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. 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 took money into their hands. However, they often became very rich. Some solicitors acted as men of business for large landowners. Solicitors were regulated by parliamentary law, but barristers were governed by the benchers of their Inn.
The various courts were very jealous of one another’s jurisdiction and the processes. They even had some different terminology.
The solicitors/proctors/attorneys spoke with clients and drew up proper forms and did deeds, wills, and contracts. The barristers/advocates/and serjeants (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 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 was not yet common for all accused or even the prosecution to have a lawyer. Barristers/serjeants and advocates could also just be asked a point of law, even if it they were not defending or prosecuting a case.
Also see my piece on a A Simple Overview of the English Courts During the Regency for additional information.
“A Serjeant-at-Law (SL), commonly known simply as a Serjeant, was a member of an order of barristers at the English bar. The position of Serjeant-at-Law (servientes ad legem), or Sergeant-Counter, was centuries old; there are writs dating to 1300 which identify them as descended from figures in France before the Norman Conquest. The Serjeants were the oldest formally created order in England, having been brought into existence as a body by Henry II. The order rose during the 16th century as a small, elite group of lawyers who took much of the work in the central common law courts. With the creation of Queen’s Counsel (or “Queen’s Counsel Extraordinary”) during the reign of Elizabeth I, the order gradually began to decline, with each monarch opting to create more King’s or Queen’s Counsel. The Serjeants’ exclusive jurisdictions were ended during the 19th century and, with the Judicature Act 1873 coming into force in 1875, it was felt that there was no need to have such figures, and no more were created.
“The Serjeants had for many centuries exclusive jurisdiction over the Court of Common Pleas, being the only lawyers allowed to argue a case there. At the same time they had rights of audience in the other central common law courts (the Court of King’s Bench and Exchequer of Pleas) and precedence over all other lawyers. Only Serjeants-at-Law could become judges of these courts right up into the 19th century, and socially the Serjeants ranked above Knights Bachelor and Companions of the Bath. Within the Serjeants-at-Law were more distinct orders; the King’s Serjeants, particularly favoured Serjeants-at-Law, and within that the King’s Premier Serjeant, the Monarch’s most favoured Serjeant, and the King’s Ancient Serjeant, the oldest. Serjeants (except King’s Serjeants) were created by Writ of Summons under the Great Seal of the Realm and wore a special and distinctive dress, the chief feature of which was the coif, a white lawn or silk skullcap, afterwards represented by a round piece of white lace at the top of the wig.
“The process of being called to the order of Serjeants-at-Law stayed fairly constant. The traditional method was that the Serjeants would discuss among themselves prospective candidates, and then make recommendations to the Chief Justice of the Common Pleas. He would pass these names on to the Lord Chancellor, who would appoint the new Serjeants. This was intended to provide a way to select possible judges in a period where political favouritism was rampant – since only Serjeants could become judges, making sure that Serjeants were not political appointees was seen to provide for a neutral judiciary. Serjeants were traditionally appointed by a writ directly from the King. The writ was issued under the Great Seal of the Realm and required “the elected and qualified apprentices of the law to take the state and degree of a Serjeant-at-Law”. The newly created Serjeants would then assemble in one of the Inns of Court, where they would hear a speech from the Lord Chancellor or Lord Chief Justice and be given a purse of gold. The Coif was then placed on the Serjeant’s head. The Serjeants were required to swear an oath, which was that they would: …serve the King’s people as one of the Serjeants-at-law, and you shall truly counsel them that you be retained with after your cunning; and you shall not defer or delay their causes willingly, for covetness of money, or other thing that may turn you to profit; and you shall give due attendance accordingly. So help you God.” [Serjeant-at-law]
Question #2: Could a foreigner be a barrister?
Just as a point of reference, nowadays (not during the Regency era), lawyers qualified in foreign jurisdictions, as well as English barristers, can take the Qualified Lawyers Transfer Scheme (QLTS) assessment, a fast-track route for qualification as an English solicitor which can be completed in a shorter or longer period of time, depending on the legal background of the candidate. There is no training or experience requirement under the QLTS, which comprises two assessments; a multiple choice test (180 multiple choice questions on 14 subject matters) and two practical assessments, the OSCE1 and OSCE2 which include nine written papers, three oral papers and three mixed written-oral papers on the most important areas of practice for solicitors (business law, probate, conveyancing, civil litigation, criminal litigation). The scheme is open to qualified lawyers in many common law and civil law jurisdictions, such as the US, Australia, South Africa, Nigeria, Brazil, Argentina, Turkey, Russia, China, South Korea, Japan, Singapore, India, Pakistan, all EU member states, as well as other countries. [The Law Society: Qualifying From Outside the UK]
Again, as in the previous question, the idea was not an impossible one, but it remained very unlikely, for the same reasons. Almost every profession during the Regency and early 1800s required an oath of allegiance to the Church of England and proof of having taken Communion. I like this description of English Law through German Spectacles from 1890: The Law Students’ Journal, Volume 12.
Both solicitors and barristers had to have several years of training. Coming to England as a foreigner, it would likely be easier to train as a solicitor than as a barrister. Solicitors had to have 5 years as apprentice, all with the same man, so if he died during those five years, the solicitor candidate had to begin again with another. At the end of five years, he could apply for recognition and admittance to practice as a solicitor. The man had to be recommended by the one who was training him and provide proof of years of service, studies, etc. Sometimes these candidates were given an exam on various aspects of their work.
If a man attained a university degree in civil law, he could be entered without the five years “apprenticeship.” Most who attended university thought of becoming barristers. They were required to study at Inns of Court for four years after their university studies were complete. That is seven years total. When the barristers of their Inn thought them ready, they were Called to the Bar.
“The call to the bar is a legal term of art in most common law jurisdictions where persons must be qualified to be allowed to argue in court on behalf of another party and are then said to have been “called to the bar” or to have received a “call to the bar”. “The bar” is now used as a collective noun for barrister, but literally referred to the wooden barrier in old courtrooms, which separated the often crowded public area at the rear from the space near the judges reserved for those having business with the Court. Barristers would sit or stand immediately behind it, facing the judge, and could use it as a table for their law briefs.
“Like many other common law terms, the term originated in England in the Middle Ages, and the call to the bar refers to the summons issued to one found fit to speak at the ‘bar’ of the royal courts. In time, English judges allowed only legally qualified men to address them on the law and later delegated the qualification and admission of barristers to the four Inns of Court. Once an Inn calls one of its members to its bar, they are thereafter a barrister. They may not, however, practise as a barrister until they have completed (or been exempted from) an apprenticeship called pupillage. After completing pupillage, they are considered to be a practising barrister with a right of audience before all courts.” [Call to the bar]
Although there have been some changes to the distinctions in modern England and Wales, most being in social standing, most jurisdictions define two types of lawyers, who are regulated by different bodies, with separate training, examinations, regulation and traditions:
- Barristers primarily practise in court and generally specialise in advocacy in a particular field of law; they have a right of audience in all courts of England and Wales.
- Solicitors do not necessarily undertake court work, but have a right of audience in the lower courts (magistrates’ courts and county courts). They are admitted or enrolled as a solicitor, to conduct litigation and practise in law outside court, e.g., providing legal advice to lay clients and acting on their behalf in legal matters.
A solicitor must additionally qualify as a solicitor-advocate in order to acquire the same “higher rights” of audience as a barrister. In other jurisdictions, the terminology and the degree of overlap between the roles of solicitor and barrister varies greatly; in most, the distinction has disappeared entirely.
Briefly, solicitors dealt 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 the criminal court. Chancery was a court of equity, and the church courts dealt with marriages and wills and were under civil (Roman) law.
They had attorneys, solicitors, and proctors. These did the legal work of investigation, writing up the writs, determining the charge when working for a plaintiff and looking for a rebuttal for a defendant. They paid the one who pled the case in court.
Serjeants, barristers, and advocates. These were the pleaders. Despite what one reads in novels, they rarely ever met the client and seldom spoke to the client about the case. They were hired and paid by the attorney, solicitor and proctor.
By the way, even the English of the day became exhausted with trying to keep all the groups and classes straight and which man worked in which court, so there was a general trend to dropping the distinction between solicitors and attorneys. All pleaders were called barristers by the general public. Records of court cases or legal texts might hold to the distinction. The church court held to proctor (solicitor) and advocate (barrister) the longest and some state divorce courts continued to do so for ages afterwards.
Many solicitors became very wealthy, though it was usually the barristers who went on to silk and a peerage. When a man took his silk, he changed his customary gown for a silk one and became a king’s Counsel. These men were called upon to argue many of the cases for the Crown. They could take a private case as long as it was not against the Crown or any government office or official. Barristers had chambers. There were no law firms, as we think of them in present time. They could share the chambers with other barristers– sharing the rent and expenses of the clerks, but they worked independently. The clerk of chambers would be the one to receive the brief from solicitors and would collect the”honorarium” from the solicitor, but other than the shared expenses the men were independent.
To the best of my knowledge, and I have been wrong on several occasions, so do not quote me, solicitors were forbidden to form companies. They could employ others, but their businesses were independent from other solicitors. A man who had been practicing for awhile and had a thriving business could take in his son or his nephew or a stranger as a student apprentice. There is not as much information around on the organization and rules governing solicitors as there are regarding the governing of barristers.
“Before the creation of the Supreme Court of Judicature under the Supreme Cour tof Judicature Act 1873, solicitors practised in the Court of Chancery, attorneys practised in the common law courts and proctors practised in the ecclesiastical courts. After 1873, the offices of ‘attorney’ and ‘proctor’ disappeared as terms relating to legally qualified persons, being replaced by “Solicitor of the Supreme Court of England and Wales”, except for the unique government offices of Queen’s (or King’s) Proctor (now generally Treasury Solicitor which is co-held with the title), and Attorney- General. Since the replacement of the judicial aspect of the House of Lords with the Supreme Court the full title of a solicitor is ‘Solicitor of the Senior Courts of England and Wales’.
“In the English legal system, solicitors traditionally dealt with any legal matter including conducting proceedings in courts although solicitors were required to engage a barrister as advocate in a High Court or above after the profession split in two. Minor criminal cases are tried in magistrates’ courts, which constitute by far the majority of courts. More serious criminal cases still start in the magistrates’ court and may then be transferred to a higher court.” [Solicitor]