THE ENGLISH BAR.
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.