There are three orders of men at the English Bar: 1. Attorneys, or
Solicitors in Chancery. 2. Barristers; and 3. Serjeants.
1. _Attorneys and Solicitors._--Acts of Parliament have been made for
the regulation of this class. The Stat. 6 & 7 Vict. c. 73, consolidating
and amending several of the laws relating to attorneys and solicitors,
prescribes the conditions of admission as an attorney, the time and mode
of their service under articles; and the oaths to be administered to
them; and authorizes the Judges of the courts of the common law, and the
Master of the Rolls to appoint examiners to examine the fitness and
capacity of all persons applying to be admitted as attorneys or
solicitors; and the certificate, either of the common law or equity
examiners, will be sufficient to entitle a person so examined to
admission in all the courts, examination by both not being necessary. 3
Stewart's Blackst. 29.
2. _Barristers._--The proper legal denomination of this class is
_apprentices_, being the first degree in the law conferred by the inns
of court. Spelman defines apprentice, _tyro_, _discipulus_, _novitius in
aliqua facultate_. This was probably the meaning of the term primarily;
but as early as the reign of Edward I, it was employed to denote
counsel below the state and degree of serjeant at law; one degree
corresponding to that of bachelor, and the other to that of doctor, in
the universities (Pearce's History of the Inns of Court, 28). Lord Coke
informs us, however, that this degree was anciently preferred to that of
serjeant (2 Inst. 214). They were termed _apprenticii ad legem_, or _ad
barras_; and hence arose the cognomen of _barristers_. A barrister must
have kept twelve terms, _i. e._, been three years a member of an inn of
court, before he can be called to the Bar. After a member of an inn of
court has kept twelve terms, he may, without being called, obtain
permission to practice _under the Bar_. This class of practitioners are
called _special pleaders_ or _equity draftsmen_ (according as they
prepare pleadings in the common law or equity courts), or
_conveyancers_, who prepare deeds. 3 Stewart's Blackst. 26, note. Those
who are regularly called, however, may take upon them the causes of all
suitors. Such of the barristers as have a patent of precedence, as
king's counsel, sit within the Bar, with the serjeants; all others are
called _utter_ or _outer barristers_.
3. _Serjeants at law._--_Servientes ad legem_, or serjeant-countors. The
coif or covering to the head worn by this order has also given a
denomination to them. There exists some differences of opinion among
judicial antiquarians as to the origin of the coif. It is supposed by
some to have been invented about the time of Henry III, for the purpose
of concealing the clerical tonsure, and thus disguising those renegade
clerks, who were desirous of eluding the canon, restraining the clergy
from practising as counsel in the secular courts. Hortensius, 349. By
others it is referred to a much earlier period, when the practice in the
higher courts was monopolized by the clergy, and those who were not in
orders invented the coif to conceal the want of clerical tonsure. 1
Campbell's Lives of the Chief Justices, 85, note. There are, indeed,
several circumstances to remind us of the ecclesiastical origin of our
profession in England. The terms--on the festival of St. Hilary (Bishop
of Poictiers, in France, who flourished in the fourth century); Easter;
the Holy Trinity; and of the blessed Michael, the Archangel;--the habits
of the judges, their appearance in court in scarlet, purple, or black,
at particular seasons--the use of the word _brother_ to denote serjeant,
and _laity_ to distinguish the people at large from the profession--the
coif of the serjeants--the bands worn by judges, serjeants, and counsel,
and the gown and hood of graduates of the inns of court,--many of such
circumstances raise a strong presumption that the legal university was
founded before the time of the enactment of the canons in the reign of
King Henry III, compelling the clergy to abandon the practice of the law
in the secular courts (Pearce's History, 22). _Nulles clericus nisi
causidicus_, was the character given of the clergy, soon after the
Conquest, by William of Malmsbury. The judges, therefore, were usually
created out of the sacred order, as was likewise the case among the
Normans; and all the inferior offices were supplied by the lower
clergy, which has occasioned their successors to be styled _clerks_ to
this day (1 Bl. Com. 17). The livings in the gift of the Chancellor were
originally intended as a provision for them, and an order was made in
Parliament, 4 Edw. III, that "the Chancellor should give the livings in
his gift, rated at twenty marks and under, to the King's clerks in
Chancery, the Exchequer, and the two Benches, according to usage, and to
none others." 1 Campbell's Lives of the Chancellors, 170, note.
In the time of Fortescue, sixteen years' continuance in the study of the
law was the period of time considered a necessary qualification in
candidates for the coif. There seems, however, never to have been a
regulation to that effect; and it is certain that persons have often
been advanced to this degree before that time. By the common law no one
can be appointed a judge of the superior courts, who has not attained
the degree of the coif; which degree can only be conferred on a
barrister of one of the four inns of court. As soon as any member of an
inn of court is raised by royal writ to the state, degree, and dignity
of a serjeant-at-law, he ceases to be a member of the society. He
removes to a new hall, and appears for the future in the inn of court as
a guest (Pearce, 52).
The most valuable privilege formerly enjoyed by the serjeants (who,
besides the judges, were limited to fifteen in number), was the monopoly
of the practice in the Court of Common Pleas. A bill was introduced into
Parliament in the year 1755; for the purpose of destroying this
monopoly; but it did not pass. In 1834, a warrant under the sign manual
of the Crown was directed to the Judges of the Common Pleas, commanding
them to open that court to the Bar at large, on the ground that it would
tend to the general dispatch of business. This order was received, and
the court acted accordingly. But in 1839 the matter was brought before
the court by the serjeants, when it was decided that the order was
illegal; Tindal, C. J., declaring that, "from time immemorial, the
serjeants have enjoyed the exclusive privilege of practising, pleading;
and audience in the Court of Common Pleas. Immemorial enjoyment is the
most solid of all titles; and we think the warrant of the Crown can no
more deprive the serjeant, who holds an immemorial office, of the
benefits and privileges which belong to it, than it could alter the
administration of the law within the court itself." (10 Bingh. 571; 6
Bingh. N. C. 187, 232, 235.) However, the Statute 9 & 10 Vict. c. 54,
has since extended to all barristers the privileges of serjeants in the
Court of Common Pleas.