The History of English Law before the Time of Edward I. Frederic William Maitland

is otherwise with the attorney, for the attorney represents his principal: he has been appointed, attorned (that is, turned to the business in hand), and for good and ill, for gain and loss (ad lucrandum et perdendum) he stands in his principal’s stead. In England and in other countries the right to appoint an attorney is no outcome of ancient folk-law; it is a royal privilege. The king, as is often the case, has put himself outside the old law: he appoints representatives to carry on his multitudinous law-suits, and the privilege that he asserts on his own behalf he can concede to others. Already in Glanvill’s day every one who is engaged in civil litigation in the king’s court enjoys this right of appointing an attorney, [p.192]or rather, for the word attorney is hardly yet in use, a responsalis.¹⁶⁷ But the right is narrowly limited. The litigant must appear before the court in his proper person and must there put some one else in his stead to gain or lose in some particular plea. Whatever is more than this can only be accomplished by means of a royal writ. Thus it is only under a royal writ that a man can have a general prospective power of appointing attorneys to act for him in future litigation.¹⁶⁸ Such writs are by no means matters of course; they usually recite some special reasons why an exceptional boon should be granted:—the grantee is going abroad on the king’s business, or he is the abbot of a royal monastery and too old or infirm for laborious journeys.¹⁶⁹ In the communal courts a litigant could not appoint an attorney unless he had the king’s writ authorizing him to do so.¹⁷⁰

Attorneys not professional.The attorneys of the period which is now before us do not seem to be in any sense “officers of the court,” nor do they as yet constitute a closed professional class. Probably every “free and lawful” person may appear as the attorney of another; even a woman may be an attorney,¹⁷¹ and a wife may be her husband’s attorney.¹⁷² A bishop will appoint one of his clerks, an abbot one of his monks, a baron will be represented by his steward or by one of his knights. Occasionally, however, as we look down the list of attorneys we see the same names repeating themselves, and draw the inference that there are some men who are holding themselves out as ready to represent whoever will employ them. A change comes in Edward I.’s day which gives a new definiteness to the class of attorneys as well as to the class of counsellors.

Professional pleaders.Recurring for a moment to the class of counsellors, we observe that Richard of Anesty, when he prosecuted his tedious suit, followed the royal court in its peregrinations with a group of “friends and helpers and pleaders” in his train.¹⁷³ For his litigation in the ecclesiastical courts he naturally required professional aid, and he had it from Italian lawyers resident in this country; among them [p.193] was Master Ambrose, who was in every sense one of the first lawyers in England, first in time as well as first in learning.¹⁷⁴ But even in the king’s court he was surrounded by friends and helpers and pleaders, and among them was Ranulf Glanvill.¹⁷⁵ For a long time, however, we hear very little of professional counsellors in the temporal courts. This is the more noticeable because Matthew Paris is full of complaints against the pack of bellowing legists whom the king employs and whom he lets slip whenever an episcopal election goes against his wishes.¹⁷⁶ They are not men skilled in English law; they are romanists and canonists; many of them are foreigners; one of the most infamous of them, if we judge them by Matthew’s report, is the renowned Hostiensis.¹⁷⁷ The only persons who are mentioned as learned in English law are the king’s justices,¹⁷⁸ and they to all appearance have been selected, not out of a body of advocates seeking for employment from the general public, but from among the king’s civil servants, the clerks of his court and of his chancery and those laymen who have done good work in subordinate offices. However, when in his account of the year 1235 Paris tells us how Henry sought to crush the aged Hubert de Burgh with accusations, he represents Hubert’s faithful counsellor Lawrence of St. Albans as having to contend against “all the advocates of the bench whom [p.194] we commonly call countors.”¹⁷⁹ In 1268 “a countor of the bench” assaulted a justice of the Jews in Westminster Hall; his fellow countors interceded for him.¹⁸⁰ The king already seems to have permanently retained a number of persons to plead his causes for him; but whether these men are free to plead for other people when the king’s interests are not in question, and whether they aspire to any exclusive right of audience we do not know. But lawyers seem to have rapidly taken possession of the civic courts in London. In 1259 the king was compelled to concede to the citizens that in their hustings and other courts they might plead their own causes without lawyers (causidici), saving pleas of the crown, pleas of land, and pleas of unlawful distraint.¹⁸¹ This looks as if in London there had been an unusually rapid development of a professional caste. By this time the practice of the ecclesiastical courts would serve as an example. The attorney is the temporal equivalent for the canonical proctor, and the “narrator” or “countor” is the temporal equivalent for the canonical advocate. In 1237 the legatine constitutions of Cardinal Otho had ordained that no one was to serve as an advocate in an ecclesiastical court, except in certain exceptional cases, until he had taken an oath before his bishop to do his duty and not to pervert justice.¹⁸² Thus a close body of professional advocates was formed, and this would serve as a model for a similar body of professional “countors.”

Regulation of pleaders and attorneys.Then in Edward I.’s day we see that the king has retained pleaders who are known as his servants or serjeants at law (servientes ad legem). Already in 1275 it is necessary to threaten with imprisonment “the serjeant countor” who is guilty of collusive or deceitful practice.¹⁸³ Also there seem to be about the court many young men who are learning to plead, and whose title of “apprentices” suggests that they are the pupils of the serjeants. We may infer that already before 1292 these practitioners had acquired some exclusive right of audience. In that year King Edward directed his justices to provide for every county a sufficient number of attorneys and apprentices [p.195] from among the best, the most lawful and the most teachable, so that king and people might be well served. The suggestion was made that a hundred and forty of such men would be enough, but the justices might, if they pleased, appoint a larger number.¹⁸⁴

      The two branches of the profession.By this measure, which, however, may not have been the first of its kind, “both branches of the profession” were placed under the control of the justices, and apparently a monopoly was secured for those who had been thus appointed.¹⁸⁵ Some twelve years earlier the mayor and aldermen of London had been compelled to lament the ignorance and ill manners of the pleaders and attorneys who practised in the civic courts, and to ordain that none should habitually practise there who had not been duly admitted by the mayor. They added that no countor was to be an attorney, and thus sanctioned that “separation of the two branches of the profession” which still endures in England; but really, as we have already seen, these two branches had different roots:—the attorney represents his client, appears in his client’s place, while the countor speaks on behalf of a litigant who is present in court either in person or by attorney. The civic fathers were further compelled to threaten with suspension the pleader who took money with both hands or reviled his antagonist.¹⁸⁶ It is from 1292 that we get our first Year Book, and we see that already the great litigation of the realm, the litigation which is worthy to be reported, is conducted by a small group of men. Lowther, Spigornel, Howard, Hertpol, King, Huntingdon, Heyham—one of them will be engaged in almost every case. Nor is it only in the king’s court and the civic courts that the professional pleader is found. Already in 1240 the Abbot of Ramsey ordained that none of his tenants was to bring a pleader into his courts to impede or delay his seignorial justice,¹⁸⁷ and in 1275 we find one William of Bolton practising in partnership with other pleaders before [p.196] the court of the fair of St Ives.¹⁸⁸ Many details are still obscure, but in Edward I.’s day it is that our legal profession first begins to take a definite shape. We see a group of counsel, of serjeants and apprentices on the one hand, and a group of professional attorneys on the other, and both of them derive their right to practise from the king either mediately or immediately.¹⁸⁹