study, and, if the junior is making over £1000 a year, he continuously employs the same devil. This term is not applied in a jocular sense, but is the regular and serious appellation of a young barrister who, in wig and gown, thus serves without compensation and without famefor his name never appears-often for from five to seven years. The devil studies the case, sees the witnesses, looks up the law and generally masters all the details, in order to supply the junior with ammunition.21

21 "I do not know how far the mysterious practice of 'devilling' obtains in the United States. In England the system may be described as the process by which an advocate of business aptitude, instructed by a client in any particular case, hands over to another advocate the conduct of that case while himself retaining the remuneration. It is traditional, it is not wholly satisfactory, but it is regulated by very precise rules which form a not inconsiderable portion of the etiquette of the profession."-Edward S. Cox-Sinclair, The Bars of United States and England, 19 Green Bag, 702, 707.

"DEVILLING AND OTHER MATTERS.-It is not permissible or in accordance with the professional etiquette for a Counsel to hand over his brief to another Counsel to represent him in Court and conduct the case as if the latter Counsel had himself been briefed, unless the client consents to this course being taken.

"This applies equally whether the Counsel are both juniors or both King's Counsel.

"As to the practice: in the Chancery Division it is not the practice for one junior to hold a brief (other than a merely formal one) for another, and the same is true of King's Counsel. In the King's Bench Division, in the case of juniors it is not uncommon for one Counsel to 'devil' a brief for another; but in the case of King's Counsel it is very seldom done.

"These differences in practice, however, do not indicate any uncertainty in the principle, which is that stated above.

"It is not permissible or in accordance with professional etiquette that a Counsel who has been instructed to draw pleadings should delegate his responsibility to another. But this does not preclude the Counsel who has been instructed from obtaining any assistance he may require in the work of drafting pleadings, subject to his approving the pleadings so drafted and making himself personally responsible for their contents by signing them, and the same principle is applicable to advising or to any other drafting as well as to pleadings.

"The above rules are of course subject to exception in cases of emergency, or where the interests of the client cannot otherwise be protected. There is no rule or settled practice governing the remuneration for 'devilling' or assistance given by one Counsel to another in the cases above referred to.

"With regard to juniors it is a common practice in the Chancery Division for the one Counsel to remunerate the other by paying him an agreed proportion, generally one-half, of the fees the former receives in respect of opinions or drafting. In the King's Bench Division remuneration for 'devilling' of briefs or assistance in drafting and opinions is not common. In both Divisions occasionally such work is remunerated either by casual or periodical payments.

"An arrangement of this kind is also not unfrequently made in the case of a King's Counsel who desires regular assistance from a junior in the perusal and noting of his briefs.

"No practice in the least degree resembling partnership is permissible between Counsel; and the etiquette of the profession forbids the handing over of work by one Counsel to another, outside the conditions above stated.—An. St. 1902-03, p. 4.

"DEVILLING IN VACATION.-There is no Rule of the Profession against it. An. St. 1900-01, p. 8. As to the Scottish Bar, cf. 117 L. T. Jo. p. 260.”—Statement of the General Council of the Bar, The Annual Practice (1917) p. 2415.

Before the trial the junior has one or more "conferences" with the solicitor, all paid for at so many guineas; occasionally he even sees the party he is to represent, and, more rarely, an important witness or two. The devil is sometimes present, although his existence is, as a rule, decorously concealed from the solicitor.

If the solicitor, or the litigating party, grows nervous, or hears that the other side has employed more distinguished counsel, the solicitor retains a K. C. as leader. Then a "consultation" ensues at the leader's chambers between the leader, junior,22 solicitor, and, occasionally, the devil.

At the trial, the junior merely "opens the pleadings" by stating in the fewest possible words what the action is about-that it is, perhaps, a suit for breach of promise of marriage between Smith and Jones, or to recover upon an insurance policy for a loss by fire-and then resumes his seat, whereupon the leader-the great K. C.-really opens the case, at considerable length and with much more detail and argument than would be good form in an American court. He states his side's contention with particularity, reads documents and correspondence (none of which have to be proved unless their authenticity is disputed-points which the solicitors have long ago threshed out) and he even indicates the position of the other side, while, at the same time, arguing its fallacy. Having done this, he leaves it to the junior to call the witnesses-more often he departs from the court room to begin another case elsewhere, and returns only to cross-examine an important witness on the other side, or to make the closing speech to the jury. In this way a busy leader may have several trials going on at once. The junior then proceeds to examine the witnesses with the help of an occasional whispered suggestion from the solicitor, who is more than ever isolated by the departure of the leader, and the devil is proud when the junior audibly refers to him for some detail.

If the leader is absent, which frequently happens notwithstanding his fee has been paid, inasmuch as no case is deferred by reason of counsel's absence, the junior takes his place, while the solicitor grumbles and more devolves upon the devil.

Occasionally, indeed, both leader and junior may be elsewhere and then is the glorious opportunity of the poor devil, who hungers for such an accident, for he may open, examine, and cross-examine, and, if neither his junior nor his august leader appear, he may even close to the jury. The solicitor will be white with rage and chagrin, wondering how he shall explain to the litigant the absence of the counsel whose fees he has paid, but the devil may win and so please the solicitor that the next time he may himself be briefed as junior. This is one of the things he has read of in the Lives of the Lord Chancellors.

22 "JUNIOR BRIEF TO JUNIOR LEADER.-The general rule is that a Barrister should not accept a junior brief to a Barrister junior to him in point of call. An. St. 1905-06, p. 10."-Statement of the General Council of the Bar, The Annual Practice (1917) p. 2413.

The devil is in no sense an employee or personal associate of the junior-which might look like partnership, a thing too abhorrent to be permitted. On the contrary, he often has his own chambers and may, at any time, be himself retained as a junior, in which event his business takes precedence of his duties as a devil, and he then describes himself as being "on his own."

Having gained some identity, and more or less business "on his own" from the solicitors, a devil gradually begins to shine as a junior, whereupon appears his own satellite in the person of a younger man as devil, while the junior becomes more and more absorbed in the engrossing but ever fascinating activities of regular practice at the Bar. Reaching a certain degree of prominence, a junior at the common law Bar may next "take silk"; that is, become a K. C., or King's Counsel, which has its counterpart at the Chancery Bar in becoming a "leader." * * Whether a barrister shall "apply" for silk is optional with himself and the distinction is granted by the Lord Chancellor at his discretion, to a limited, but not numerically defined, number of distinguished barristers. The phrase is derived from the fact that the K. C.'s gown is made of silk instead of "stuff," or cotton.24 It has also a broad collar, whereas the stuff gown is suspended from shoulder to shoulder.

23

Whether or not to "take silk," or to become a "leader," is a critical question in the career of any successful common law or chancery barrister. As a junior, he has acquired a paying practice, as his fee is always two-thirds that of the leader. He has also a comfortable chamber practice in giving opinions, drawing pleadings and the like, but all this must be abandoned-because the etiquette of the Bar does not permit a K. C. or leader to do a junior's work-and he must there

23 “At the Chancery Bar there is a peculiar subdivision which has already been mentioned. Having reached a certain degree of success and become a K. C., a barrister may take his seat' in a particular court, by appointment of the judge, as a 'leader.' Thereafter he can never go into another, except as a 'special,' a term which will be explained presently. For three pence, at any law stationer's, one can buy a list of the leaders in the six chancery courts, varying in number from three to five and aggregating twenty-five, and if a solicitor wishes a leader for his junior in any of these courts, he must retain one out of the limited list available. Hence, these gentlemen sit like boys in school at their desks and try the cases in which they have been retained as they are reached in rotation.

"But even for a leader at the Chancery Bar, one more step is possible, a step which a barrister may take, or not, as he pleases, and that is: he may go 'special. This means that he surrenders his position as a leader in a particular court and is open to accept retainers in any chancery court; but his retainer, in addition to the regular brief fee, must be at least fifty guineas or multiples of that sum, and his subsequent fees in like proportion."-Thomas Leaming, A Philadelphia Lawyer in the London Courts (1911) pp. 40, 41. 24 "Barristers cannot be heard in court as advocates unless they are robed." -James Robert Vernam Marchant, Barrister-at-Law (1905) p. 41.

"It is doubtful whether a barrister litigant who is conducting his own case has any right to appear in forensic costume or to speak from the places reserved for counsel. See Cox-Sinclair's Rights, etc., of an Advocate, p. 22."— Id. p. 70, note.

after hazard the fitful fancy of the solicitors when selecting counsel in important causes. Some have taken silk to their sorrow, and many strong men remain juniors all their lives, trying cases with K. C.'s and leaders much younger than themselves.25

BARRISTERS IN ENGLAND. Edward S. Cox-Sinclair, The Bars of United States and England, 19 Green Bag, 702, 704: The formal changes in fact, up to the present day, which have taken place in regard to the barrister-at-law, can be summed up as follows: (1) The abolition of the degree of Sergeant-at-Law, leaving all barristers of one designation, with the exception of the select few appointed King's Counsel. (2) The abolition of a few special offices of an advocate, survivals of the day when the lines of division between the Courts were sharp. For instance, certain persons in the Court of Exchequer who had priorities in motions, called from their places in the Court the Tub-man and the Post-man, were no longer so distinguished. Certain advocates belonging to special bars, such as a trusted member practising in the Mayor's Court in the City of London, ceased to have the privilege of limitation. (3) The abolition of a certain grade called the special pleaders, whose designation conveys their functions. 28 (4) The imposition of a stringent system of examination administered by the Council of Legal Education.

26

25 “There are at the present time about ten thousand Barristers in London, eight thousand of whom are not in active practice. Of the two thousand in active practice, there are about two hundred King's Counsel or Leaders, as they are called (because in England every important case has to have a Leader), and the remaining eighteen hundred are Juniors, who are not allowed to 'wear the silk.'

"Only the King's Counsel are allowed to wear a silk gown, and, in order to become a King's Counsel, application must be made to the Lord Chancellor. "Recently, out of ninety applications in one year, only fourteen were granted, and at the present time there is considered to be a scarcity of King's Counsel in active practice.

"Indeed, out of the two hundred Leaders actively at work, at least fifty devote their time exclusively to Parliamentary work, fifty to the Chancery Courts, about fifteen to the Admiralty Court, and a few entirely to divorce matters, leaving only about twenty-five King's Counsel now in active practice in the City of London. As a consequence, these twenty-five, or the majority of them, are so busy that they are often required to conduct two or three cases at a time."-Francis L. Wellman, Day in Court (1910) pp. 15, 16.

26 "Special pleading" is referred to in Bernard W. Kelly's A Short History of the English Bar (1908) p. 92, as “An important branch of legal business." The author adds in a note on page 93 that "for the sake of the uninitiated it may be explained that a Special Pleader is a member of an Inn of Court, generally not called to the bar, who devotes himself to the drawing of pleadings, and attending at judges' chambers."

COST.LEG.ETH.-2

SECTION 2.-THE HISTORY OF ATTORNEYS AND SOLICITORS IN ENGLAND

THE ORIGIN OF ATTORNEYS AT LAW. Frederic W. Maitland, in Maitland and Montague's Sketch of English Legal History (1915) pp. 94, 95: Ancient law does not readily admit that one man can represent another; in particular it does not readily admit that one man can represent another in litigation. So long as procedure is extremely formal, so long as all depends on the due utterance of sacramental words, it does not seem fair that you should put an expert in your place to say those words for you. My adversary has, as it were, a legal interest in my ignorance or stupidity. If I cannot bring my charge against him in due form, that charge ought to fail; at all events, he cannot justly be called upon to answer another person, some subtle and circumspect pleader, whom I have hired. Thus the right to appoint an attorney who will represent my person in court, and win or lose my cause for me, appears late in the day.27 It spreads outwards from the king. From of old the king must be represented by others in his numerous suits. This right of his he can confer upon his subjects-at first as an exceptional favor, and afterwards by a general rule.

In Henry III's reign this process has gone thus far: A litigant in the king's court may appoint an attorney to represent him in the particular action in which he is for the time being engaged; he requires no special license for this; but if a man wishes to prospectively appoint a general attorney, who will represent him in all actions, the right to do this he must buy from the king, and he will not get it except for some good cause. The attorneys of this age are by no means always professional men of business.28

27 "As early as the time of Henry II we hear from Glanville [ed. by Beames, p. 275, book xi], writing in or about 1181, of the nomination of certain persons as attorneys 'to win or lose' for the party nominating them."F. A. Inderwick, The King's Peace (1895) p. 90.

28 "The first legislative reference [to attorneys] is in the Statute of Merton (20 Hen. III, c. 10 [1235]) whereby

"It is provided and granted that every Freeman which oweth Suit to the County, Trything, Hundred and Wapentake, or to the Court of his Lord may freely make his Attorney to do these Suits for him."-E. B. V. Christian, A Short History of Solicitors (1896) 6. It was not until 1285 (13 Edw. I. St. 1, c. 10) that the power to appoint attorneys in the superior courts received legislative sanction. See Mr. Serjeant Manning's note to Doe d. Bennett v.

Hale, ante, p. 11.