CHAPTER VIII.

ADVOCACY IN ENGLAND.

Plusors sont que ne scavont leur causes prononcer, ne se defendre en jugement, et plusors que poient, et pur ceo sont Countors necessaire. Mirroir des Justices.

As the object of this work is not to write a history of the bar, but merely to consider the office and functions of a lawyer in his capacity of an advocate, charged with the defence of the rights and interests of his fellow-citizens in courts of justice, it is not necessary to enlarge upon what may be called the archæology of the profession, nor transcribe from ancient writers the curious particulars they record of its state and condition in very early times in England. Nor need we dwell at any length upon the venerable degree and dignity of serjeants-at-law, of whose creation and appointment Fortescue, in his work De Laudibus Legum Angliæ, and Dugdale in his Origines, give such ample details. Great was their state and solemn their inauguration in the olden time. When called to receive their office by the Lord Chancellor, "after that the company is so assembled in their hall, thence cometh down to them the new serjeants: and after that the new serjeants be so come down to the company, then all they standing together, the most ancient of the company rehearseth the manner of learning and study; giving laud and praise to them that have well used them, showing what

CH. VIII.] THE GREAT STATE OF THE SERJEANTS.

1

343

worship and profit cometh and groweth by reason of the same, in proof whereof those new serjeants, for their cunning, discretion, and wisdom, be called, by the king's highness and his honourable council, to the great promotion and dignity of the office of a serjeant of the law and then he giveth them a laud and praise for their good conversation, and pain and diligence that they have taken and used in their study, presenting to them the reward of the house, beseeching them to be good and kind to the company." When they had refreshed themselves with "spiced bread, comfits, and other goodly conceits, with hippocrass," the labours of the first day were over. Afterwards they counted upon their writs, a legal mystery which it would not be easy to make very intelligible, and then proceeded to attack a right goodly feast, which Fortescue says "shall continue and last for the space of seven days; and none of those elect persons shall defray the charges growing to him about the costs of this solemnity, with less expenses than four hundred marks." The grandeur of these entertainments in former times was remarkable, and they were generally held in Ely House, where "divers great and solemn feasts," says Stow, "have been kept, especially by the serjeants at the law;" and where royalty did not disdain to appear, accompanied by "all the Lords and Commons of the Parliament." Henry VII. and his queen dined there more than once, and in the twenty-third year of the reign of Henry VIII., he and Queen Catherine honoured the newly-created serjeants with their company, "but in two chambers," at a sumptuous repast which lasted for five days. The monarch, however, and his queen were present only on the principal day. "It were tedious to set down the preparation of I have modernized the spelling

'Dugdale, Orig. Jurid. 114.

me, it seemeth,

So

So says honest

fish, flesh, and other victuals spent in this feast, and would seem almost incredible: and as to wanted little of a feast at a coronation." Dugdale', and agreeing with him, I may spare the reader the enumeration which he gives of the great beefs, fat muttons, porkes, capons, cocks of grouse, pullets, and swans which were there consumed.2 When the elevation of these aspirants to the coif was regarded as so important, and attended with such stately ceremony, well might Fortescue exclaim, "Neither is there any man of law, throughout the universal world, which by reason of his office or profession, gaineth so much as one of these serjeants."

"3

But how are the mighty fallen!" The ruthless hand of innovation has swept away their privileges, and they no longer possess now even the monopoly of practice in their own court of Common Pleas, which they enjoyed for upwards of seven hundred years. Firmly and successfully for a time was the change resisted, when the attempt was made to throw open that court to all advocates by virtue of a warrant under the sign-manual of the crown; but an Act of Parliament accomplished the same object two years ago, without complaint or even a murmur of opposition. 4

We know, from several passages in our old writers,

1 Orig. Jurid. 128.

The particulars which Dugdale records of one of these feasts in 1555 are most inviting, and prove how thoroughly the science of good living was understood by our ancestors. There is one dish, the "chewet pies," which figures very frequently in the bill of fare. One of the ornaments of the table was "a standing dish of wax, representing the Court of Common Pleas." It is curious to compare the prices then with those of the present day.

De Laud. Leg. Ang.

4 9 & 10 Vict. c. 54.

CH. VIII.]

WAGER OF BATTEL.

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that pleaders or advocates existed in this country in very early times. They are said to have been in repute in the reign of William Rufus; and Matthew Paris, the historian, in his Lives of the Abbots of St. Alban's, gives us a curious account of the reason why they were temporarily awed into silence at a later period.1 After stating that the abbey had been much oppressed in the reign of Henry III., by a person who was protected by John Mansel, he goes on to say, "Nor could we obtain any right, or redress, while the said John was the confidante, and assisted at the councils of the king. Nay, more, the terror and influence of John himself completely stopped the mouths (ora penitus obturavit) of all the judges and pleading advocates, (whom we usually call Countors of the Bench). So that oftentimes the Lord William, who was then our bursar2, (a man circumspect and eloquent withal,) was obliged to state his complaints himself in his own person before the justices, and even before the king and barons.3 And the justices protested, as they privately whispered into the ear of the said William, that at that time there were two persons who bore rule in the realm, to wit, Count Richard, and John Mansel, in the face of whom they did not venture to deliver judgment."

We have seen that in France, when judicial combats took place, the gens de loi were called upon to officiate in the preliminary stage of the proceedings. And in old times in England, the peaceful serjeants had sometimes to act very much in the capacity of seconds to the com

This passage is cited in Stephen on Pleading, App. note 8. Cellarius. Ducange in his Glossary says, that this officer corresponds to the more modern bursar. Perhaps Dominus Wilielmus would be more correctly translated Master than Lord William.

3 Barnagium. See Ducange, in voc.

It

batants, as will appear from the following example. was the case of a writ of right which two demandants brought against Paramour, the tenant of lands in Kent 1, and occurred in 1571, in the reign of Elizabeth.

"And Paramour chose the trial by battle, and his champion was one George Thorne; and the demandants e contra, and their champion was one Henry Nailer, a master of defence. And the court awarded the battle; and the champions were by mainprise, and sworn (quære the form of the oath) to perform the battle at Tothill, in Westminster, on Monday next after the morrow of the Trinity, which was the first day after the utas of the Term, and the same day given to the parties; at which day and place a list was made in an even and level piece of ground, set out square, sixty feet on each side, due east, west, north, and south, and a place or seat for the judges of the bench was made without and above the lists, and covered with the furniture of the same bench in Westminster Hall; and a bar made there for the serjeants-at-law. And about the tenth hour of the same day, three justices of the bench, Dyer, Weston, and Harper, Welshe being absent on account of sickness, repaired to the place in their robes of scarlet, with the appurtenances and coifs; and the serjeants also. And there public proclamation being three times made with an Oyez, the demandants first were solemnly called, and did not come. After which, the mainpernors of the champions were called to produce the champion of the demandants first, who came into the place, apparelled in red sandals over armour of leather, bare-legged from the knee downward, and bareheaded, and bare arms to the elbow, being brought in by the hand of a knight, namely, Sir Jerome Bowes,

Lowe and Ryme v. Paramour, Dyer, 301. a.