THE ORIGIN OF SOLICITORS IN CHANCERY. Edward Jenks, A Short History of English Law (1912) pp. 201, 202: The professional character of attorneys begins to make itself felt in the statute of 1402, 4 Hen. IV, c. 18, which speaks with regret of the number of attorneys "ignorant and not learned in the law" and requires all candidates for admission to the roll ("en rolle") to be examined by the Justices; and a statute of James I, 3 Jac. I (1605) c. 7, repeats this requirement in other terms. Meanwhile, the new jurisdiction of the Court of Chancery had produced another similar body of practitioners. At first apparently the Masters in Chancery were supposed to look after the equity suitor's interests; but the natural desire of litigants to have agents specially charged with furthering or "soliciting" their causes, led to the recognition of a special body of semi-attached officials known as "solicitors" who are treated by the statute of 1605 as on the same footing with attorneys.

SCRIVENERS. Edward Jenks, A Short History of English Law (1912) p. 202: A third class of non-forensic practitioners who made their appearance before the end of the sixteenth century were the "scriveners," who concerned themselves only with chamber or nonlitigious business, chiefly borrowing and lending of money.

SOLICITORS AND ATTORNEYS. 13 Ency. Laws of England, (2d Ed.) p. 437: Prior to 1875 the term "solicitor" was restricted to persons who conducted suits in the Court of Chancery; while those who acted in the common law courts were called "attorneys.” 2o But now (by virtue of section 87 of the Judicature Act, 1873, which came into operation on November 1, 1875) all solicitors, attorneys and proctors empowered to practice in any Division of the High Court of Justice or in the Court of Appeal are called "solicitors of the Supreme Court." * it is provided [by section 21

Further *

29 In the days of Sir Francis North, afterward Lord Guilford, "on matters of form and practice attorneys shared with junior counsel the right of audience by the judges at the side-bar, which corresponded with the modern Judges' Chambers; or, as Roger North unkindly puts it, in one place, the judges 'heard them wrangle.' "-E. B. V. Christian, A Short History of Solicitors (1896) p. 93.

30 "By the Legal Practitioners Act, 1876, and the Solicitors Act, 1877, solicitors became entitled to practice in any ecclesiastical court, a privilege which the decline of ecclesiastical litigation makes less important; but from the constitution of the Probate Court in 1857 they had been able to prove wills and take other necessary proceedings in reference to the estate of deceased persons. The Admiralty Court also was thrown open to solicitors." E. B. V. Christian, A Short History of Solicitors (1896) pp. 225, 226.

*

of the Solicitors Act, 1877] that all enactments referring to "attorneys" shall be construed as if the expression "solicitor of the Supreme Court" were substituted for the word "attorneys."

SOLICITORS IN ENGLAND TO-DAY. Edward S. Cox-Sinclair, The Bars of United States and England, 19 Green Bag, pp. 702, 704: The formal changes which have taken place amongst solicitors may be summed up as follows: (1) The abolition of distinctions as between solicitors and attorneys, according to the court of practice; (2) the imposition of a system of examination under the Incorporated Law Society; and (3) in connection with that Society an increasing stringency of corporate discipline.

So far as the relations between the two branches of the profession are concerned, and the relation of the members of each with the general public, practically no change has taken place. The social distance between the two branches has practically vanished, the privilege of the advocate being in effect balanced by the substantiality of the solicitor. The facilities of passing from one branch to the other have been greatly extended. Solicitors have been granted audience in many inferior courts of increasing jurisdiction and therefore tend to invade the presence of the Bar by a system of peaceful penetration. In all the essential points, however, of the traditional distinction between the two branches, no change is apparent and the etiquette of the Bar maintains itself in a wondrous way, bearing in mind the disintegrating influences of a complete change in the structure of every stratum of English society.

SECTION 3.-THE RELATION BETWEEN BARRISTERS AND SOLICITORS IN ENGLAND

THE BARRISTER'S DUTY TO ACT ONLY WHEN INSTRUCTED BY A SOLICITOR. 2 Halsbury's Laws of England, pp. 389, 390: The usage and etiquette of the profession of a barrister require that in all but some exceptional cases counsel should not undertake any professional work as regards which the relation of counsel and client can arise except on the instructions of a solicitor. There is no rule of law to prevent a litigant from instructing counsel directly, or to prevent counsel so instructed from appearing on behalf of a litigant (Doe d. Bennett v. Hale [1850] 15 Q. B. 171); but a judicial opinion has been expressed that it is expedient in the interests of suitors and for the satisfactory administration of justice to ad

here to the usage which requires that counsel should not accept a brief in a civil suit from any one but a solicitor. Ibid., per Lord Campbell, C. J., at p. 186.31 The exact scope of the usage is not very clearly defined, but it extends to all civil contentious business, and to all criminal business except what is known as a "dock defense" (i. e., on the trial of an indictment, or on the hearing of an appeal under the Criminal Appeal Act, 1907 [7 Edw. 7, c. 23] a barrister in court may be instructed directly by the prisoner from the dock). It does not extend to the preparation of a will, to work before parliamentary committees, * or to inquiries under the Local Government Acts, the Public Health Acts or the Light Railways Act. * * * A barrister may advise in non-contentious business without the intervention of a solicitor, though the practice has been stated [by the General Council of the Bar] to be undesirable."2

*

81 In Doe d. Bennett v. Hale, 15 Q. B. 171, 182, 183 (1850), Lord Campbell, C. J., said: "There certainly has been an understanding in the profession that a barrister ought not to accept a brief in a civil suit, except from an attorney; and I believe it is for the benefit of the suitors, and for the satisfactory administration of justice that this understanding should be generally acted upon. But we are of opinion that there is no rule of law by which it can be enforced." It is, however, enforced as a matter of custom and of professional etiquette by the General Counsel of the Bar.

"It is worthy of notice that, according to Roger North, Lives of the Norths (Bohn) III, par. 175, personal intercourse with the lay client, which had formerly been shared between both branches of the profession, became confined to the non-forensic branch in the last half of the seventeenth century. The natural consequence of the change was that the business and reputation of individual barristers came to depend largely on the favor of at torneys and solicitors."-Edward Jenks, A Short History of English Law (1912) 203.

"The average solicitor is probably as able as the average barrister, and would conduct cases in court with as much propriety, and, after practice, with as much effect. But advocacy is work of a special kind, demanding for success constant and undivided attention, and in itself contains more than one man may accomplish. For the bar is, in effect, not one but several; and though the dividing lines are not rigid, there is a Chancery bar, a Common Law bar, a Parliamentary bar, a bar attached to the Criminal Courts, while knowledge further specialized gives to a few gentlemen a monopoly in patent actions and in Admiralty and other distinct classes of litigation."-E, B. V. Christian, A Short History of Solicitors (1896) 214, 215.

"While all the world might, if he could get it, be the client of a solicitor, a barrister's clients are only solicitors; the former being prohibited from taking cases or work from the general public without the intervention of a solicitor; and as a fact it is but rarely that a barrister sees the actual client until possibly a case goes into court. Barristers are accordingly dependent practically upon solicitors for their business. But although there is this great dependency between them, they cannot enter into partnership one with another, nor can a partnership exist between two or more barristers; but as between themselves there is no restriction against solicitors joining in partnership."-T. W. Tempany, The Legal Profession in England-Its History, Its Members, and Their Status, 19 Amer. L. Rev. 677, 694, 695.

32 "No one but a properly admitted solicitor can 'sue out any writ or process or commence, carry on, solicit, or defend any action, suit or other proceeding in any court in England, or act as a solicitor in any cause, matter, or suit, civil or criminal.' 6 & 7 Vict. c. 73, § 2. A barrister, therefore, cannot commence an action for a client or carry on or defend one. No one but a

BARRISTER ACTING WITHOUT INTERVENTION OF A SOLICITOR.

BARRISTER ACTING AS Spokesman for a DepUTATION. Statement of the General Council of the Bar, The Annual Practice (1917) p. 2411: Some London contractors were forming a deputation to wait on a Public Body in London for the purpose of urging certain views of the contractors in reference to the Public Body's system of issuing licenses for certain purposes. A representative of a firm of one of such contractors requested a Barrister to act as spokesman for the deputation, and offered him, through his clerk, a fee of -guineas. The Barrister suggested that a solicitor should be instructed to deliver a brief, but the contractor's representative declined to do this on the ground of expense, saying that the matter was non-contentious business. Not being sure whether the fact that the Public Body was not a Judicial Tribunal of any kind made any difference, the Barrister asked the Council's opinion as to the course he should adopt. The Council replied that the general rule is that a Barrister should not appear as an advocate on behalf of a client without the intervention of a Solicitor, and that in the opinion of the Council this rule is applicable to the facts set out above. An. St. 1904-05, p. 10.

BARRISTER MEMBER OF COLONIAL LAW FIRM. Statement of the General Council of the Bar, The Annual Practice (1917) p. 2413: A Barrister has for some years practised in a Colony where there is no distinction between Barristers and Solicitors, and where both have equal rights of audience in the Courts. Since 1898 he has been a partner in a firm of Advocates, Solicitors and Notaries Public, carrying on business in such Colony. He has recently returned to reside in England, but continues to be a member of said firm, and to draw a share of the profits of the business. Is he entitled to practise at the Bar in England? The Council were of opinion that he ought not to practise

litigant in person or a solicitor can do this."-James Robert Vernam Marchant, Barrister-at-Law (1905) p. 43.

"As far back as October, 1851, a meeting of lawyers was held in London to consider the advisability of allowing solicitors to plead on an equal footing with the Bar, and in 1896 this question of the 'fusion' of both branches of the profession again came up for discussion in the professional and general press. It seems, however, to make for the best interests of each that the respective callings of barrister and solicitor should remain distinct. The advocate who does not come into immediate contact with the client has, as a rule, no personal knowledge of his merits or demerits, and can in consequence act independently of these considerations. The certain knowledge that the person whose cause he represented was actually guilty, or in the wrong, might well be conceived to prove a serious hindrance to any line of defense or pleading, besides placing the counsel himself in a very invidious position. The barrister who 'faces a British jury' does so in the light of a third person, and the arguments put forward by him derive a strength from this circumstance which would be wholly wanting under other and more partisan-like conditions."Bernard W. Kelly, A Short History of the English Bar (1908) p. 118.

An. St. 1906–

as an English Barrister so long as he remains a member of the Colonial firm, or takes a share of the profits made by that firm. 07, p. 12.

CONFERENCES AT A SOLICITOR'S OFFICE. Statement of the General Council of the Bar, The Annual Practice (1917) p. 2414: The Council have expressed an opinion that as a general rule it is contrary to etiquette and improper for a Barrister to attend Conferences at a Solicitor's office, but that under exceptional circumstances the rule may be departed from. An. St. 1904–05, p. 10.

NON-CONTENTIOUS BUSINESS-ANNUAL PAYMENT. Statement of the General Council of the Bar, The Annual Practice (1917) p. 2409: There is no rule against a Barrister advising in non-contentious business without the intervention of a Solicitor, but it is an undesirable practice. If fees should be taken for such opinion, such fees must be marked and paid in the usual way and on the ordinary scale, not by way of annual payment or salary. An. St. 1896-97, p. 11. Confirmed, An. St. 1907-08, pp. 13, 14, (2), (3), (4), (5).

* *

COURTS-MARTIAL. Statement of the General Council of the Bar, The Annual Practice (1917) p. 2412: A Barrister ought not to appear in his professional capacity at a court-martial unless instructed by a Solicitor. An. St. 1915, p. 16. It is understood that this ruling does not apply to an officer who happens to be a Barrister appearing as "friend" of the accused.

SECTION 4.-THE GENERAL COUNCIL OF THE BAR AND THE LAW SOCIETY

THE GENERAL COUNCIL OF THE BAR. 2 Halsbury's Laws of England, 368, 369: Up to recent times there was no organisation of the whole body of the English bar. Each circuit had an organisation of its own in the circuit mess; there was also a kind of organisation of barristers practising in the Chancery Courts. In December, 1883, a meeting of the English bar was held, when it was resolved

33 "A Counsel does not commit any breach of etiquette in advising, without the intervention of an English Solicitor, on a case submitted to him by a Colonial Advocate in a Colony where the professions of Barrister and Solicitor are combined. An. St. 1902-03, p. 11."-Statement of the General Council of the Bar, The Annual Practice (1917) p. 2410.

34 "To the public the solicitor is the lawyer of first instance, and the only sort of lawyer with whom the client comes into contact. But if the opinion of the Bar be correct, the solicitor is no lawyer."-Edmund B. V. Christian, A Short History of Solicitors (1896) Preface, p. vi.