ART. IV. THE HISTORICAL AND ACTUAL RELATION BETWEEN COUNSEL, ATTORNEY AND CLIENT.

[IT is the object of this article to put forth all that can be urged practically or historically for the direct access of client to counsel. It must not be inferred that our own views on this subject are thereby compromised.-ED.]

"To secure

men's persons from death and violence:

"To dispose the property of their goods and chattels :

"For the preservation of their good names from shame and infamy."

SUCH, according to Bacon, are the uses of the law and, it is obvious at a glance, that the casualty of a moment may render one or other of them necessary to any man, woman or child, from the highest to the lowest. And, when it is remembered that every English subject is presumed to know the law, the demand that no unnecessary obstacle should be allowed to exist in the way of obtaining, promptly and easily, the best legal assistance, is at least worthy of the consideration we propose to give it.

We do not allude to the internal code, by which the Bar profess to govern themselves, which is (in theory) enforced by stringent regulations, but which is notoriously violated, or avowedly useless in every respect. Such is the self-denying ordinance, that, during the assizes, a barrister may not dine with an attorney-although he has the privilege, which by many is freely exercised, of being extremely civil in the passages of the court; and that other rule, that a barrister may not enter an assize town before the commission-day-although the clerk is allowed to waive this law, and to enter the cover before his master, and to put up the game for him. With such internal regulations we do not propose to deal, but solely with that enactment which affects the public, and forbids the client, however intelligent or honest, or however clear the facts of his case may be, from consulting the barrister personally, or engaging his services as an advocate without the intervention of an attorney.

The opponents of all change are the attornies, and those barristers who are dependent on them: they allege the great conveniences of the present system, and the difficulties that would ensue upon an alteration.

It must be admitted that, in theory, no system could be devised better adapted to winnow the pure materials from which the legal merits are ultimately to be extracted. If a merchant

apprehends that a person with whom he has contracted has made default, after a reasonable effort to establish what he conceives to be his right, he has recourse to the attorney; that functionary, practically skilled in the dealings of mankind, probes the transaction in all its bearings-all that has passed between the parties he endeavours to elicit, and every document relating to the matter is laid before the preliminary inquisitor in this domestic inquiry; when every information is obtained, it is arranged succinctly into a case for the opinion of counsel. So far, the attorney has discharged his duty; and the advantages in theory cannot be denied.

On the other hand, it is argued that, in many instances, the client would be able to put the barrister in possession of facts and documents with as much ease as the attorney; nay, that the barrister would sooner see the point decisive of the whole question, would direct all information to be concentrated upon that point, and would thus disembarrass the case of numerous details which the attorney charges high for investigating; that he would see all original documents, and from his insight into matters of business acquired by varied experience, and from his tact in examining witnesses, would soon ascertain the bonâ fide merits of the case.

The barrister is threatened, by some objectors, with an inextricable mass of details, which he will neither have time nor ability to unravel: the answer is, that it is not contended that he should be called upon to discharge this duty. Such cases should be sent to an attorney, to undergo the sifting process; and, undoubtedly, these difficulties would adjust themselves, without "fusing" the two branches of the profession. They would exist distinct, as they exist in other countries, and as they did in England two hundred years ago. It is, however, urged that the attorney should be paid only when his services are required; that, in all other cases, where his intervention is merely formal, and the client could orally instruct his counsel, there should be the right of free communication. To a similar objection, that briefs from suitors would convey insufficient instructions, we answer that this abuse would work its own cure.

Finally, a passive objection exists in the effeminate fastidiousness of some gentlemen of the Bar, whose ability and influence are admitted. They have been kept so long aloof from the suitor that they dread coming into contact with him, as though he were a leper or a torpedo. They are as shy of the outer world as the ladies of a harem, or the inhabitants of the Celestial Empire; although they have a commodity which they are willing to part withal, when it is made worth their while. But these

refined and amiable persons labour under an infatuation. They may rest well assured that barristers would not lose caste. Let the people approach the living oracles, and their reverence would not vanish with proximity. This is not mere argument. In the days of old, when all men at the Bar were gentlemen of true descent, the councillor-at-law freely advised the suitor without the intervention of the attorney; and every serjeant-at-law had his pillar assigned him in the "pervyse" of St. Paul's, where the public could consult him, as he sat with his tablets on his knee.

We now proceed to investigate the legal history and former position of that functionary for whose benefit the rule appears to have been established.

The word attourné, attorney, signified in the old law, one placed in the turn or place of another to perform an act for him. By the old common law of England, parties to suits were compelled to appear in person; the reason assigned was, the injustice of placing a third party in a situation where he might be liable for the crime of his principal, for in those early days penal consequences sometimes attended the failure of a suit; but, by a writ from the crown, the privilege could be obtained of appearing by attorney.

The first statute for the relief of the subject was the 20 Hen. III., A.D. 1235, by which "it was provided and granted, that every freeman which owed suit to the county, tything, hundred, and wapentake,1 or to the court of his lord, might freely make his attorney to do those suits for him." But we regret to say that some years afterwards (3 Edw. I.), A.D. 1275, a statute was passed, directed against them, describing them as barretors and maintainers of quarrels, and threatening them with grievous punishment, and also the sheriff who encouraged them. About this time the lawyers generally seem to have abused their position, for we find a further provision made against "any manner of deceit or collusion in the king's court, on the part of any serjeant, pleader, or other," extending, as Lord Coke explains it, to apprentices, attornies, clerks of court, or any other.

But the most important enactment in relief of suitors was passed (13 Edw. I. c. 10) A.D. 1285. "Our lord the king, of

Lord Coke, 2 Inst. 99. "That which in some countries is called a hundred court, in some countries is called a wapentake. Now the reason of the name was this; where any one on a certaine day and place took upon him the government of the hundred, the free suitors met him with launces, and he descending from his horse, all rose up to him, and he holding his launce upright, all the rest, in signe of obedience, with their launces touched his launce or weapon for the Saxon word wapen, is weapon, and tac, is tactus or touching, and therefore this assemblie was called wapentake, or touching of weapon."

his special grace, granteth that such as have land in divers shires where the justices make their circuit, or that fear to be impleaded of lands in shires where the justices have their circuit, and are impleaded of other lands in shires where the justices have no circuit, or before the justices at Westminster, or in the King's Bench, or before justices assigned to take assizes, or in any county before sheriffs, or in any court baron, may make a general attorney to sue for them in all pleas in the circuit of justices, moved or to be moved for them or against them, during the circuit, which attorney or attorneys shall have full power in all pleas moved during the circuit, until the pleas be determined, or that his master (the client) remove him; yet shall they not be thereby excused, but they shall be put in juries and assizes before the same justices." An entry shortly afterwards follows, by which the chief justice and the other judges are empowered to appoint a certain number, that is, to admit certain persons to be attornies of the court.

Here then we have a distinct body of men duly appointed by the judges, who have continued until the present time.

Seven years after this enactment (A.D. 1292), we find the following entry in the parliament roll: "Of attornies and apprentices, our lord the king hath injoined John de Mettingham and his fellows, that they of their discretion appoint and provide a certain number out of every county, of the better and more learned, and such as they should think best for the good of the people and the service of the court." They were to have an exclusive privilege, and it appeared to the king and his council that seven score would suffice, but the limit was left to the discretion of the justices, who, no doubt, obeyed the suggestion.

an

It is the opinion of a very learned and competent lawyer, Mr. Serjeant Manning (Serviens ad Legem, Ap. No. XIII.), that the "apprentices" (students) and attornies constituted one body; though, perhaps, it would be more correct to say that the latter sometimes adopted the designation more proper to the former; and he quotes the petition to the king in council (11 Edw. III.), A.D. 1337, of one John de Codryngton, who describes himself as "apprentice of our lord the king, and attorney," praying to be exempted from the requirement of Sir J. de Ros, who had commanded him to be at Orwell on Wednesday, the 17th of March, well and completely armed and apparelled as a man-atarms, and that, upon pain of being hanged. The answer to this petition was, that, "inasmuch as he is an attorney, let it be commanded to Sir J. de Ros, or his lieutenant, that they surcease from the demand which they make against him, and the distress which they do to him for this cause.

In the following reign, in a subsidy granted to Richard II., A.D. 1379, we find the following assessment:

"Also every serjeant and great apprentice of the law, each 40s. "Also, other apprentices who follow the law, each 20s.

"Also, all the other apprentices of less estate and attorneys each, 6s. 8d."

Similar evidence is afforded by the command above quoted to John de Mettingham and his fellows.

It is not impossible that the attornies, in this early period when they do not appear to have undergone a formal examination, were allowed to enter the inns of court, and participate in the advantages of the legal education afforded by them. They would thus become identified in name with the "apprentices of the law," the students intended for the bar. It is important also to remember, that they were generally confined to the smaller inns of chancery, which bore the same kind of relation to the larger "inns of court," that the halls in our universities do to their respective colleges. Fortescue, in his treatise de Laudibus, says, that these inns were so called because the students in them were, for the greater part, young men learning the first elements of the law, who, becoming great proficients therein, as they grew up, were taken into the great hostels, called the inns of court. It is tolerably clear that at a later period these smaller inns became almost exclusively devoted to the attornies; for about the middle of the seventeenth century we hear of that clever and vagrant boy, who afterwards became "The most learned Sir Edmund Saunders, Knight," and Chief Justice of the Common Pleas, becoming a great favourite with the attornies of Clement's Inn, and obtaining a stool in an office there. We find also a general order of the 15th April, A.D. 1630 (6 Chas. I.), sanctioned by the authority of the judges and privy council, by which it was enacted, "that the innes of chauncery should hold their government subordinate to the benchers of the innes of court unto which they belong. And in case any attorney, clerk, or officer of any court of justice, being of any of the innes of chauncery, shall withstand the direction given by the benchers of court, upon complaint thereof to the judges of the court in which he shall serve, he shall be severely punished, either by forejudging from the court or otherwise, as the case shall deserve."

But although the attornies and students were both known by the common designation, "Apprentices," i. e. learners, as being engaged in the same course of study, there can be no doubt that there was a marked distinction between those who were intended for the Bar, and those who practised in the