The Express.
London, England, 1851-07-19 00:00:00

Courts Act there were three classes of persons vir-
tea,' entitled to be heard in the county courts—the
parties themselves, their attornies, or "barristers in-
structed by such attornies." These latter words were
' construed, and we apprehend rightly construed, to
preclude a barrister from acting u en advocate in
the county courts, unless instructed by an at-
torney! in other words, a party suing or
mood in those courts could not avail him-

wit at the services of a barrister to act
so amid on his behalf, unless he also em-
elt:l attorney. County-court suitors desiring
their causes conducted by barristers could
aeadeecomplish this by employing two lawyers
of one. We believe this to have been the
that instance in which the legislature has ever for-
mally recognised what was long understood to have
been the etiquette of Westminster Hall—the cus-
tom, namely, that no barrister should be per-
witted in civil cases to appear as advocate in
the superior courts unless instructed by an
attorney. That this custom rested only on
• rule of etiquette, and had no foundation
is **common law, was formally determined by Lord
CAMPBELL, when pronouncing the unanimous decision
jot the Court of Queen's Bench in a case which came
beim that tribunal from the Oxford Circuit, in
which it appeared that the counsel retained for one
of the parties in the cause had conducted the case
without receiving instructions from an attorney.
That this rule of etiquette in the superior courts
should for the first time have been converted into a
kwislative prohibition on the occasion of establishing
a cheap system of judicature, in which it might
easily have been foreseen that an attempt to keep
the old artificial system must amount to a
exclusion of the bar from advocacy in the new
courts, was, to my the least of it, somewhat infelici-
tous. The more natural and wiser course
for those who wished well to the bar
of England would certainly seem to have
been to endeavour as far as possible to relax the rigid
etiquette, which might have been sufficiently com-
patible with the arrangements of the old system, and
adapt the habits of the profession to the exigencies of
the new. It was probably, after all, not so much
from short-sightednesa as from dislike and contempt
of the new tribunals, and from an overweening
desire to keep up the gentility of a profession in
which their own position was secure, and with the
social standing of which their own dignity was
somewhat bound up—that the leaders of the her in
the House of Commons sanctioned or procured the
i•=lion of the restrictive clause.
But whatever may have been the motives of the
step, it was taken' and its consequences soon became
clear; the bar by degrees became virtually excluded
from practice in the county courts and a new ekes of
advocates sprung up—attornies who acted either in
a joint capacity as attornics and advocates, or as to
• great extent has become the case, purely in the
latter capacity—having briefs indorsed and fees
paid to them as counsel. As long as 201. formed
the limit of the county court jurisdiction,
temsfer of the former monopoly of the bar in
Om meets to their brethren in the lower branch et
dis painika excited little attention and alarm.
When, however, the jurisdiction was extended to
WI., and Westminster Hall was fast becoming de-
serted, and the preference of the country for the
cheaper and less artificial system of procedure had
been unmistakeably declared, the junior bar
saw that their means of professional existence,
never very superabundant, were dwindling
away to nothing, while the attornics on the other
aide became proportionably anxious to retain a privi-
lege with the advantages of which they had by this
time become fully acquainted. In the endeavour
thus to secure to themselves the double monopoly at
attorneyship and advocacy, they certainly appear to
have resorted to some proceedings rather question-
able both in point of taste and of discretion. Cases
were alluded to on Tuesday by the ATTORNEY-
GENERAL and Mr. ANETEY, in which attornies
had combined together to give no briefs to bar-
risters in county courts, and an instance was
mentioned in which a suitor in one of the
metropolitan courts, having requested an at-
torney practising there to retain counsel to appear
for him, the person so applied to declined having
anything to do with the case, except on the terms of
retaining another attorney as advocate.
Under these circumstances the ATTORNEY-GE-
NERAL, moved thereto, as it is understood, by a
' strong pressure from the outer bar, proposed
'a clause last Tuesday, the effect of which
would virtually have been to give to the bar a
monopoly of advocacy in the county courts in all
cases between 201. and 501. The learned and cou-
rageous gentleman made an exceedingly ingenious
speech, and urged all that could be advanced, and
not without considerable show of reason, an to the
impolicy of supplanting the present race of advo-
cates by an inferior class, without any gain to the
public in
.point of economy, and considerable disad-
vantage in almost all other respects. Nor did he
fail to press the obvious topics as to keeping
county court judges in check by the presence of an
independent and accomplished bar, and keeping up
a constant supply of skilled jurists, from whom to
select the future sages and administrators of the law.
The truth of much of this the house seemed readily
to admit, but one short argument was rightly felt to
be more than sufficient to outweigh a wilderness of
such reasonings as these. The clause virtually sought
to re-establish a monopoly—to prevent the public
from employing as advocates a set of men with whom
they were satisfied, and who practically were found
to do their work cheaply and expeditiously,
in order to impose upon them the necessity
of retaining as counsel those whom they could not
employ without also retaining another lawyer as an
attorney. The employment of attorney advocates
might be incompatible with that cheapness and ex-
pedition which it was the main object of the county
courts to ensure: but this enforced employment of
two lawyers where one would for all practical pur-
pans be sufficient, it was at once seen, mast defeat
the me purpose and police of the whole system.
The ATTORNEY-GENERAL'S original clause was
manifest) y doomed, when Mr. Coil:maid. came for-
ward with a suggestion, which has all along ap-
peared to us to embody the plain common sense of
the case. " Away with all monopoly, whether of
the attorney as against the barrister, or of the bar-
rister as against the attorney; repeal the legislative
restriction which precludes barristers in the county
courts from acting as counsel, unless instructed by
attornies—let the public be free to choose their ad-
vocates from either branch of the profession, and
leave the bar to settle among themselves, as they
please, their rules of etiquette, so as to adapt them to
this new system of free trade in advocacy.' In ac-
cordance with these views, which we think perfectly
just and sound, the house agreed to the following
clause :

And it shall be lawful for the parties to the suit, for an
attorney of one of the superior courts of record retained
by or on behalf of the panics, or fur a barrister retained by
or on behalf of the parties on either side, or by the leave of
the judge for any other person, without any right to exclu-
sive or pre-audience to address the court, subject to such
regulation as the judge may think fit to make for the or-
derly transaction of business so that court.
It will be observed that this clause throws advo-
cacy in the county courts open to free competition ;
attornies retained "on behalf of the parties," or
barristers retained directly "by the parties," may
alike act as counsel in those trilunals ; the former
words leplise attorney advocates, the latter words
legalise barristers uninstructed by attornies. This
is fair, manly, and straightforward. The junior bar,
if they are alive to their true interests, will throw
themselves with manly energy into this field of free
rivalry. It is well tole fastidious, but it is also desi-
rable to feed. The men of horsehair and bombemeen
must shake off the coyness of " their fugitive and
cloistered virtue ;" to live in rough plenty is almost
as agreeable, and quite as respectable, as to die of
dignified inanition. And if the system is found to
work well in the county courts, why not extend it
to the Courts of Westminster also?

Kontos COURT and Kensington Palace, though
deserted by Majesty, are not left untenanted. The
passer-by is not startled, as at Balclothe, by seeing
" the fox look out of the window," unless it should
chance to be some two-legged Fox of aristocratic con-
nexions. Well-dressed gentlemen and ladies occupy
the chambers, and it is not understood that they pay
any rent. For what services theie elegant paupers
have been quartered in the royal paiotes it is not our
object at present to enquire; yet, if any one were