Legal Profession in Medieval England.pdf

II.

The Historical Background

A. The Developing Notion of a Legal Representative

The development of the legal profession in medieval England has received a significant amount of scholarly attention. A number of books and articles have dealt with this topic; 8 and it is frequently treated as one topic in more general works of development has already been well documented, summarizing the use by litigants of other individuals to assist them, understanding changes in the legal environment in the 12th and 13th centuries, and identifying the different types of lawyers provide useful background for analyzing the statutes and ordinances that coincided with the advent of the profession as well as those that were adopted in the next two centuries.

The Emergence of the Legal Profession: A Brief Sketch

Changes in the English legal system were probably the fundamental influence on the emergence of professional serjeants and attorneys. As Paul Brand has stated, "the emergence of this group was a response to the changed legal environment created by a number of separate but linked developments in the English legal system which took place in and after the reign of Henry II." 11 Before describing these changes, it is useful to discuss two related developments that occurred as aspects of the evolution of the legal profession. First, individuals involved in litigation desired, and eventually needed, the assistance of others to speak for them and to appear on their behalf and to manage the litigation. Second, legal authorities began to authorize such individuals to appear in these roles in litigation. 12 11. Brand, Origins, supra note 8, at 3. Brand has also studied the history of the Irish legal profession during this same period . See Paul Brand, The Early History of the Legal Profession of the Lordship of Ireland, 1250-1350, printed in Brehons, Serjeants, & Attorneys, supra note 8, at 15-50. Appendix I is a chart showing the reigns of the English medieval kings. 12.

There were some important differences in the development and functions of the individuals who assisted as speakers, pleaders, and those who managed litigation or advised litigants, attorneys. A detailed discussion of the differences in their development is outside the scope of this article although the important differences will be indicated where they are significant. Paul Brand provides an excellent detailed discussion of the different evolution of serjeants and attorneys. See Brand,Origins,supra note 8, The Anglo-Norman period, ending with the death of Stephen and the ascent of Henry II, the first Angevin king, in 1154, reflected little or sporadic use of "professionals" or experts performing these "legal" functions. 13 There is no doubt, however, that during the 12th century and more regularly by the 13th century, attorneys appeared on behalf of litigants. Whether pleaders also appeared during the 12th century is the subject of some uncertainty. 14 Although the development of pleaders is somewhat murky, they clearly began to appear in the early 13th century, 15 with professional pleaders first appearing in the Common Bench by 1239. 16 Initially, both the pleaders and attorneys assisting the See generally authorities cited supra notes 8 & 9. The differences in the functions of these two will be described later. See infra notes 57-74, 84-95 and accompanying text. 13. See Brand, Origins, supra note 8, at 3-13; I Reeves, supra note 9, at 169-71. Brand explained that the nature of litigation, the courts, judges, and restrictions on the availability of representatives diminished the need for legal expertise. 14.

Holdsworth has suggested that pleaders may have appeared as early as Henry I, 1100-35. See II Holdsworth, supra note 9, at 312-13. Brand and Baker, however, do not believe that the type of pleader, who was emerging as a professional lawyer, a countor, appeared during this period. See Brand, Origins, supra note 8, at 10-12; Baker, The Order of Serjeants at Law, supra note 8, at 9. It seems likely that this difference in opinion is not so much a disagreement as it is confusion between two different types of pleaders: countors, the predecessors of serjeants and a different type known as causidici, who appeared in the 12th century, and were who part of a continental or ecclesiastical, but not English common law, tradition. See Brand, Origins, supra; Palmer supra note 8, at 134-35; Cohen, A History of the English Bar, supra note 8, at 47, 59. Brand also rejected Brunner's suggestion that the anglo-saxon forespeca functioned as an expert pleader, finding that they spoke not as an expert in speaking in court, but as some one's protector and as a mediator between him and his enemies. See Brand,supra,[11][12]supra note 8, The difference may also be nominal, with Holdsworth reference to skillful amateurs, not professional, pleaders. Generally, it seems that legal historians have found the development of pleaders (serjeants), less clear than that of attorneys. See, e.g., Sayles, I Select Cases in the Court of the King's Bench Under Edward I, supra note 9, at civ-cv. 15. See Brand,Origins,supra note 8,[46][47][48][49] Baker, The Order of Serjeants at Law, supra note 8, at 9-10. 16.

Legal historians have based their conclusion on the Chronicle of Matthew Paris, written in 1239. See, e.g., Baker, The Order of Serjeants at Law, supra note 8, at 10; I Pollock & Maitland, supra note 9, at 214-15. Although Baker, following Maitland, placed the Matthew of Paris' account as early as 1235 (see Baker, supra; I Pollock & Maitland, supra), Brand concluded that more recent scholarship indicated that 1239 was a more accurate date. See Brand,Origins,supra note 8,at 55,181 n.50. such as the Mirror of the Justices 24 noted the functions and participation in litigation of such individuals. Over time, some of these individuals began to appear repeatedly to assist litigants. 25 In the process, these individuals developed expertise as a result of their experience. They were sought out by litigants and charged for their services. With some, it became a way in which they earned a living or supplemented their other income. There is also considerable evidence that court clerks rendered legal assistance to litigants, using their knowledge of the legal system to supplement their income. 26 There is even some suggestion that some litigants, engaging in strategic behavior familiar to today's lawyers, hired experts for advice and services to ensure that they not be available to help their Lawyers, 8 Law & Hist. Rev. 97 (1990); Glanvill, supra, at xxx-xxxiii. Glanvill was written from 1187-89. Percy Winfield, The Chief Sources of English Legal History 256-58 (1925) . Brand points out that the references in Glanvill are to attorneys, not pleaders. See Brand,Origins,supra note 8,[43][44][45][46] 21. See Henry de Bratton (Bracton), IV On Laws and Customs of England 71-146, (Samuel Thorne trans., 1977) For some years, it was believed that Bracton was written between 1250 and 1258. See Winfield, supra note 20, at 259. More recent scholarship suggests that it was written earlier and by someone other than Henry de Bratton. See Paul Brand, The Age of Bracton in The History of English Law: Centenary Essays on "Pollock and Maitland" 89 Proceedings of the British Academy 65, 66-79 (John Hudson ed. 1996). 22. See II Britton 344-61 (F.M. Nichols trans., 1983) Britton was written "about 1290" and is characterized as an "epitome" (summary) of Bracton although it contains additional material. At one time, it was thought to have been written by John le Breton, Bishop of Hereford. That view has been largely rejected and the author may have been a royal law clerk. See I id. at xviii-xxii. It purports to be written under royal authority and was written as if the King were speaking. See Winfield, supra note 20, at 263-64. 23. See IV Fleta (G. O. Sayles ed. & trans., Selden Soc. 1984). Fleta was written "about 1290" and is also characterized as an epitome of Bracton; and the common speculation has been that the title derives from the fact that author wrote it while in the Fleet prison. See Winfield, supra note 20, at 262-63. H 25. See,e.g.,Brand,Origins,supra note 8,[55][56][57][58][59][60][61][62][63][64]; Baker, The Order of Serjeants at Law, supra note 8, at 13-14. 26. See, e.g. Harding, England in the Thirteenth Century, supra note 9, at 166-69; Birks,supra note 8,[31][32][36][37][38][39][58][59]; Sayles, I Select Cases in the Court of the King's Bench Under Edward I, supra note 9, at lxxxvi & n.5-lxxxix, xcvii-ci; Sayles, V Select Cases in the Court of the King's Bench Under Edward III, supra note 9, at xii-xvi & accompanying notes. Some believed that the clerks abused their position in aiding private clients. Id. opponents. 27 Moreover, commentators have noted the emergence, starting in the mid-12th century and particularly through the 13th century, of famous legal figures, including Ranulf Glanvill, 28 and Ralph de Hengham. 29 Thus, in the early 13th century, identifiable precursors of professional lawyers, whom Paul Brand characterizes as "protoprofessional," were engaging in representational activities. 30 During the reign of Henry III (1216-1272, there is more abundant evidence of these "proto-professionals" functioning as serjeants and attorneys in the Court of Common Pleas and other royal courts. 31

27.

See Sayles, V Select Cases in the Court of King's Bench under Edw. III, supra note 9, at lx-lxi. 28. Holdsworth, Pollock and Maitland have suggested that Glanvill appeared as a lawyer to assist Richard of Anstey in his celebrated case (see supra note 18), but Brand has raised doubt. Compare II Holdsworth, supra note 9, at 313 and I Pollock & Maitland, supra note 9, at 214 with Brand, The Origins of the English Legal Profession, 5 Law & History Review, supra note 8, at 31-32. 29. See,e.g.,II Holdsworth,supra note 9,at 226,; I Pollock & Maitland, supra note 9, at 214; Maitland & Turner, Yearbooks, 3 & 4 Edward II, supra note 9, at xv-xxi; Zane, supra note 17, at 628-48.

Ralph de Hengham, was a particularly important legal figure and advisor to Edward I. He gained legal experience as an attorney and clerk for a Common Bench justice. See I Paul Brand,Earliest English Law Reports, He became Chief Justice of both the Court of Common Pleas and the King's Bench. He was implicated in the notorious judicial scandal of 1289 (see infra notes 132-33 and accompanying text) and his treatment has provoked a fair amount of controversy . See Radulphi De Hengham, Summae xlv-lx (William Huse Dunham Jr. ed., 1932, 1986. He is particularly important for this article since he may have had a role in drafting Edward I's statutes, which will be discussed later. He also authored several treatises, including Summa Parva although his authorship of the Summa Magna has been disputed. See Brand,supra note 9, This work, along with the Brevia Placitata, both written about 1260, were important practical procedural works although neither rivaled Bracton, the most comprehensive and important legal treatise of this period, and perhaps one of the most remarkable of all works on law. His particular influence on Statute of Westminster I is discussed below. See infra note 161 and accompanying text. 30.

Drawing on Lady Stenton's earlier research regarding the reign of King John (1199-1216), Paul Brand has described the types of the individuals functioning as protoprofessionals and their identities. See Brand,Origins,supra note 8,[50][51][52][53][54]. Again, Paul Brand has recounted in detail the identities of the early professional serjeants and attorneys and the cases in which they were involved. His research showed an increase in these appearances from the first half of the reign (1216-1244) to the second half (1245-1272). See Brand,Origins,supra note 8,[54][55][56][57][58][59][60][61][62][63][64] identified two critical factors in the emergence of professional attorneys in the Common Bench by 1260. One was a fourfold increase in litigation and the impact of increased litigation in particular areas enabling professional attorneys to serve several clients and offer cheaper services than their amateur competitors. The other involved the increased complexity of litigation. See Brand,supra,at 69. A The second development, the official authorization of these individuals to appear to assist litigants, facilitated these activities and the resulting development of the legal profession. Authorization took two forms, judicial recognition and statute. Initially, the use of the former method was with respect to nonlawyers functioning as attorneys, preceding the emergence of a legal profession, and was subject to a number of restrictions. For example, the litigant had to appear personally in open court to make such a request. 32 Glanvill, in his famous late 12th century treatise, perhaps the first on English law, describes the appointment of an attorney ("responsalis") and the writ for an attorney to act in court in place of his principal to gain or to lose ("ad lucrandum vel perdendum"). 33 By the reign of Henry III, individual attorneys obtained the right to appear in court, either with regard to a particular matter, a special attorney, or on behalf of a client for numerous matters over a period of time, a general attorney. 34 In the case of the more detailed discussion of these influences follows. See infra notes 48-55 and accompanying text.

Numerous legal historians have cited a celebrated instance of an assault by Robert de Coleville, a serjeant, on Robert of Fulham, a justice of the Jews, in 1268 as important evidence of the emergence of a wellknit, identifiable professional group of serjeants since Coleville's fellow serjeants acted as group to intercede, reconcile the parties, and mediate the situation. See,e,g. Brand,Origins,supra note 8,[63][64]; II Holdsworth, supra note 9, at 312-15; Sayles, V Select Cases in the Court of King's Bench under Edward III, supra note 9, at lx-lxi; I Pollock & Maitland, supra note 9, at 215; I Madox, supra note 9, at 236. 32. See Brand,Origins,supra note 8,[43][44][45][46] Glanvill, supra note 20, at 132-34. He notes the need for the presence of the principal. Id. at 133. Anthony Fitzherbert discusses these writs in the New Natura Brevium, his early 16th century guide to practice and procedure. Anthony Fitzherbert, The New Natura Brevium 59-66, 367-79 (Windham & Hale eds, 1793). 34. The more limited permission occurred first, and was subject to strict scrutiny and distinct limitations. The need for an attorney with wider powers led to the broader permission and a more regularized procedure, which could only be obtained by a royal writ. See Sayles, I Select Cases in the Court of the King's Bench Under Edward I, supra 9, at xci-xcvii; Maitland & Montague, supra note 9, at 94-96; I Pollock & Maitland, supra note 9, at 212-13. The latter point out that obtaining a royal writ was not a routine matter and required proof of special reasons for granting such "an exceptional boon." Id. at former, the court recorded the litigant's authorization of an attorney on the plea roll; and with the latter, a royal or judicial writ authorized the use of an attorney. In his late 13th century treatise, Britton described the procedures for creating a special and general attorney. 35 Again the procedure for appearances by serjeant-pleaders is less clear, but it also seemed to involve some form of judicial permission or royal sanction and may have initially grown out of an ancient practice permitting litigants to bring persons to court to counsel them and subsequently out of the judicial control over practice before the Court of Common Pleas. 36 Over time, many of the restrictions and formalities regarding the appearance by pleaders and attorneys were relaxed 37 and this process became more widespread, informal and routine. By the end of the 13th century, many of the restrictions on the use of serjeants had been eliminated and litigants commonly used professional serjeants to plead 35. See II Britton, supra note 22, at 356-58. 36.

See Baker, The Order of Serjeants at Law, supra note 8, 3-7; II Holdsworth, supra note 9, at 312-33; Maitland & Montague, supra note 9, at 96-98; I Pollock & Maitland, supra note 9, at 211-12. This judicial and royal procedure probably represented the earliest form of admission of lawyers to practice. The differential information regarding attorneys and serjeants may have a practical explanation. Attorneys to manage litigation were a practical necessity, but judges could decide cases without advice from pleaders although their use was advantageous. The King had his own serjeants and attorneys, who were his legal representatives in matters involving the crown, who were quite distinct from the serjeants who served the general public. See,e.g.,Baker,supra,[3][4][5][6][7][28][29][30][31][32][33][34][35][36][37][38][39][40][41]; Sayles, V Select Cases in the Court of the King's Bench Under Edward I, supra note 9, at xxix-lxvi; Sayles, I Select Cases in the Court of the King's Bench Under Edward I, supra note 9, at cviii-cxv. The office of the King's serjeants originated in 1278, and by 1315 appointments were made on a regular basis. See John C. Sainty, A List of English Law Officers, King's Counsel and Holders of Patents of Precedence 3 (Selden Soc. 1987). A discussion of these lawyers is outside the scope of this article. 37. See, e.g. Sayles, I Select Cases in the Court of the King's Bench Under Edward I, supra note 9, at xci-xcvii. In one respect, the law reduced the availability of attorneys as, by the end of the reign of Henry III, their use was prohibited in cases involving possible imprisonment. See Brand,Origins,supra note 8,at 45; I Pollock & Maitland, supra note 9, at 211. This limitation was not eliminated until 1836. See II Holdsworth, supra note 9, at 312 n. 5. their causes. 38 Similarly, the use of professional attorneys became more widespread. 39 Moreover, statutes granted litigants the right to appoint and use attorneys. Such statutes may have existed in the early 13 th century. 40 In 1268, a Charter of the City of London recognized a similar right for its citizens in its courts. 41 The Statute of Westminster II in 1285 further facilitated the use of attorneys in litigation by allowing the 38. Brand found that "during the Henry III's reign it becomes clear that it has become the norm for litigants in the Common Bench [Court of Common Pleas] to have serjeants speak on their behalf." While their use in the other royal courts and the eyre (courts of itinerant justices) was less clear, it had also expanded there. See Brand,Origins,supra note 8,[54][55][56][57][58][59][60][61][62][63][64][65] During the reign of Edward I (1272Edward I ( -1307, this trend regarding the use of serjeants continued and became well established. 76,[79][80][94][95][96][97][98][99][100][101][102][103][104][105] Baker, The Order of Serjeants at Law, supra note 8, at 8-28; I Pollock & Maitland, supra note 9, at 212-15. 39. See Brand,Origins,supra note 8,[65][66][67][68], during the reign of Edward I, 1272-1307, the trend regarding the use of attorneys continued and became well established. [77][78][80][81][82][83][86][87][88][89][90][91][92][93][94]; Sayles, I Select Cases in the Court of the King's Bench Under Edward I, supra note 9, at xci-xcvii; I Pollock & Maitland, supra note 9, at 212-15. 40.

Chapter 10 of the 1234 Statute of Merton has caused confusion regarding its effect and date. Despite its limited language, it may have been interpreted to authorize the appointment of attorneys in use in litigation in the eyre. On its face, it provided that "every freeman . . . may freely make his Attorney" in the county and similar courts. 20 Henry III, ch. 10 (1236), I Statutes of Realm 4 (1810Realm 4 ( , reprinted 1963. See Kirk, supra note 8, at 1-3; I Pollock & Maitland, supra note 9, at 547. This language only granted the right to appoint an attorney to fulfill a burdensome attendance obligation in the local courts. See I Holdsworth, supra note 9, at 9-10. However, it was apparently expanded judicially, despite its clear language, to also permit appointment of an attorney for use in litigation in the General Eyre, "a vastly more important matter." Theodore F.T. Plucknett, Statutes and Their Interpretation in the First Half of the Fourteenth Century 75, 111 (1922, 1980 reprint). Holdsworth took a broader view, concluding that this chapter authorized the use of attorneys in the royal courts. See III Holdsworth, supra note 9, at 396-97. The 1236 codification of Chapter 10 of the Statute of Merton was a summary, perhaps an inaccurate one, of 1234 legislation. See E. de Haas & G.D.H. Hall, Early Register of Writs, 87 Selden Soc. ciii n.7 (1970); II Holdsworth, supra note 9, at 221. This statute apparently did not apply to the manorial courts, which relied on ancient prevailing customs. See William Stubbs, II The Constitutional History of England 287-88(1887). Brand ascribes to narrow view of Chapter 10's impact. Letter from Paul Brand to Jonathan Rose (March 24, 1997), on file with Jonathan Rose (hereinafter "Brand March 24, 1997 letter"). 41. Bohun, Privilegia Londini: Laws, Customs, and Privileges of the City of London 10 (1702). The City of Leicester gave similar privileges. See Birks,supra note 8,[20][21] Cohen, A History of English Bar and Attornatus to 1450, supra note 8, at 264-65. Bohun suggested that this charter, the 9th of the City of London, was actually a regrant of this right as Henry III had extended the right to London citizens to conduct their cases in person rather than by a representative. Id. Several commentators have suggested that reaffirming the right of citizens to appear on their own evidenced how common the use of attorneys had become, at least in the London courts. See Kirk, supra note 8, at 8; I Pollock & Maitland, supra note 9, at 215. appointment of general attorneys to act in the eyres (courts of itinerant justices), without the need to obtain specific royal permission. 42 Statutes throughout the 13th, 14th, and 15th century reaffirmed this right of appearance; and ultimately it became universal. 43 It is important not to minimize this official recognition of the right to use attorneys generally in all courts as it reversed a long standing tradition, and probable requirement, that litigants appear in person. 44 Moreover, widespread judicial and statutory authorization replaced an important royal prerogative to control such matters. 45 Thus, as result of these developments, a professional class of pleaders and attorneys evolved. In the words of Paul Brand, "by the last quarter of the thirteenth century," legal experts "whom we may 42. 13 Edw. I, ch. 10 (1285), I Statutes of the Realm 80 (1810, reprinted 1963)("make a general attorney to sue for them in all Pleas in the Circuit of the Justices moved or to be moved for them, or against them"). See Birks,supra note 8,[21][22]; II Reeves, supra note 9, at 169. Coke noted the significance of dispensing with royal authorization in order to use attorneys, "an act of grace" by the king "for the quiet and safety of his subjects." See Coke, I The Second Part of the Institutes of the Laws of England, supra note 9, at 378; Fleta again noted the problem of litigation in distant locations, "if they be impleaded or fear to be impleaded in divers places." II Fleta, supra note 23, at 104. 43. See Kirk, supra note 8, at 1-5. For an identification of many of the relevant statutes, see id. at 3 n.9; Christian, supra note 8, at 5-10. Both Coke and Fleta noted the importance of being able to appoint an attorney, given the difficulty of traveling by litigants. See Coke, I The Second Part of the Institutes of the Laws of England, supra note 9, at 99-100 ("mischievous . . . if he had lands within divers" counties since multiple courts might be in session on one day "and he could be but in one place at one time"); II Fleta, supra note 23, at 223 ("since they cannot be present everywhere"). Brunner believed, however, that legal scholars have misconstrued the significance of this provision of the Statute of Merton and overstated its significance regarding the appointment of an attorney . See Brunner,supra note 8,. Brand has suggested that legislation may have existed during the reign of Henry II (1154-89) authorizing a litigant to appoint someone to act for him in a single piece of litigation. See Brand,Origins,supra note 8,[44][45]Brand,The Origins of the English Legal Profession, 5 Law & History Review, supra note 8, at 31, 45 & n.52 (1987). 44. See, e.g., Birks, supra note 8, at 7-9; I Pollock & Maitland, supra note 9, at 211; Oliver Wendell Holmes, Jr., The History of Agency, reprinted in 3 Am. Assoc. Law Schools, Select Essays in Anglo-American Legal History 395 (1909)(originally published in 3 Harv. L. Rev. 345, 4 Harv. L. Rev. 1 (1891)). Brunner and Holmes have suggested that Norman law was the source of this requirement. Id. at 396;Brunner, supra note 8, at 261-67;3 Law Magazine & Law Rev., supra note 8, at 243, 246 (1857)("principle of Norman jurisprudence") . 45. See, e.g., II Holdsworth, supra note 9, at 315-18; Birks, supra note 8, at 10-20; I Pollock & Maitland, supra note 9, 213. reasonably call professional lawyers" were engaging in representational activities on "a full-time basis," evidencing the existence of a "nascent English legal profession." 46 By the end of the reign of Edward I in 1307, an English legal profession, albeit one that was still in early stage of its development, clearly had emerged. 47

2.

Changes in the Legal System: The Underlying Cause

As mentioned earlier, the most important influence on the emergence of the English legal profession was a number of related changes in the English legal system and legal environment. Paul Brand has discussed all these changes and their influence in detail and it is useful to summarize his findings. 48 Beginning in the reign of Henry II (1154-89) and continuing through that of Edward I (1272Edward I ( -1307, major changes in the 46. See Brand, Origins, supra note 8, at 3; Maitland & Montague, supra note 9, at 94-98. Holdsworth believed that this emergence of the legal profession had an important influence in changing "the character of the sources of the law." He discussed the various legal treatises and other works that appeared during this period. See II Holdsworth, supra note 9, at 319-33.

Brand's work and the early scholarship focus almost exclusively on early lawyers appearing in court, which is also the focus of this article. There is some evidence of early lawyers, likely nonprofessional, engaging in transactional work. See,e.g. Birks,supra note 8,[50][51][52][53][54][55] Rev. 389, 411-30 (1996). In the 15th century, corporations began to retain lawyers regularly for nonlitigation work; and by the end of the medieval period, lawyers functioned as professional managers for the wealthy estate owners . See Ives,supra note 8,at 12,. Sir John Fortescue's famous 1471 treatise, De Laudibus Legum Angliae, is the earliest account of the formation and organization of the legal profession. See Fortescue, supra note 9, at xli-xlii, 115-30. Although much had been accomplished by 1307, numerous developments were yet to come such as those involving Inns of Court, the fusion of the bench and bar, and the emergence of solicitors. See Brand,Origins,supra note 8,. See Brand,Origins,supra note 8,[14][15][16][17][18][19][20][21][22][23][24][25][26][27][28][29][30][31][32] court system occurred. The General Eyre and central royal courts at Westminister were initiated. Moreover, litigation grew and gravitated to the Court of Common Pleas; and new royal courts were created. The effect of national and the diminished importance of other courts as well as expert judges created and concentrated a demand for assistance by experts familiar with the rules and procedures of these courts. 49 "Cumulatively the effect of these changes was to create a legal environment that was much more favorable to the professional lawyer." 50 A second change involved the process of litigation. 51 Already somewhat complex, it became even more so. There was an increase in the number of the writs; and it became more difficult to select the correct one. Increased, complex procedural rules were another important factor. One particularly "complicated branch of medieval procedure," 52 the law of essoins, which governed the excuses for nonappearance, 53 had a significant impact in 49. Robert Palmer has asserted a somewhat different theory regarding the origin of the English profession that placed heavy emphasis on the use of lawyers in the county and local courts in the 12th century. See Palmer, supra note 8; Robert C. Palmer, County Year Book Reports: The Professional Lawyer in the Medieval County Court, 91 English Hist. Rev. 776 (1976). Brand rejected this theory. See Brand,Origins,supra note 8,[83][84], The Origins of the English Legal Profession, 5 Law & History Review 31, supra note 8, at 32-34, 44. Although these theories are not mutually exclusive and could describe parallel developments, the difference in opinion inheres in identifying the primary influence in the emergence of the profession. 50. See Brand,Origins,supra note 8,at 32. 51. See Brand,Origins,supra note 8,[33][34][35][36][37][38][39][40][41][42]; II Holdsworth, supra note 9, at 249-51. Brand also discussed changes in the rules governing the use of legal representatives . Brand,supra,[43][44][45][46][47][48][49] Since these rules were a response to the use of legal representatives rather a cause for their need, they were discussed earlier. See supra notes 32-45 and accompanying text. 52. II Holdsworth, supra note 9, at 324. 53.

The law of essoins is a fascinating body of rules and is one of the earliest forms of procedural complexity. Coke classified five different excuses (essoins) for nonappearance including difficulty in coming (de malo veniendi), service of the king of this side of the sea (de servito domini regis), bed-sickness (de malo lecti), beyond the sea (ultra mare), and in the holy land (in terram sanctam). See I Coke, The Second Part of the Institutes of the Laws of England, supra note 9, at 125. Other commentators have identified increasing the incentive to use an attorney and it also created opportunities for delay, aggravating the situation. More complex pleading counts and the use of exceptions 54 added further technicalities. Many commentators have identified a growing complexity in litigation, perhaps partially due to attorney involvement, and applicable legal procedure as an important force in creating a need for expert assistance and the opportunity to develop expertise. 55 additional ones. See, e.g., II English Lawsuits From William I to Richard I, 107 Selden Soc. 779 (1991); II Britton, supra note 22, at 344-46, 389. Their use was very complicated. Not only did the right one have to be selected, but there were detailed procedures for establishing the existence of an essoin (sending four knights to the bedside to verify bed sickness and distinguish it from languor) and for distinguishing one from the other; and one essoin could become a different one over time or because of changed circumstances. Additional complexities arose if there were multiple essoins or essoins asserted by multiple attorneys. Treatise writers during the 12th and 13th century such as Glanvill, Bracton, Fleta, and Britton devoted substantial discussion to the intricacies of essoins and their use . See Glanvill,supra note 20,[7][8][9][10][11][12][13][14][15][16][17][18][19][20][21][37][38][39][40][41][42][43]; IV Bracton, supra note 21, at 71-146; IV Fleta, supra note 23, at 120-36; II Britton, supra note 22, at 344-56. Not surprisingly, the "casting" of essoins created significant opportunities to delay litigation. Thus, reform efforts to curb their use occurred at the end of the 13th century in the Statutes of Westminister I & II. See 3 Edw. I, chs. 42-44 (1275), I Statutes of the Realm 37 (1810, reprinted 1963); 13 Edw. I, ch. 27 (1285), I Statutes of the Realm 85 (1810, reprinted 1963). Particular problems occurred if there were multiple defendants as they would cast essoins seriatim ("fourcher"); this practice was eliminated by statute. See Plucknett, A Concise History of the Common Law, supra note 9, at 384-85 & n.1. Coke commented on the strategic use of essoins and the statutory reform. See I Coke,supra,II Coke,supra,Origins,supra note 8,[34][35][36][37]Birks,supra note 8,[19][20]; Plunknett, A Concise History of the Common Law, supra note 9, at 384-85. 54. Bracton discussed at length the complicated procedure for using exceptions. See IV Bracton, supra note 21, at 245-378. Ironically, exceptions may have been adopted to temper the strict requirements of pleading. See II Holdsworth, supra note 9, at 251. 55. See,e.g.,Kirk,supra Soc. lxxv (1938); Sayles, I Select Cases in the Court of the King's Bench Under Edward I, supra note 9, at xci-xcvii; I Pollock & Maitland, supra note 9, at 217-20. Andrew Horn, in his 13th century criticism of the legal system, said "some there be who know not how to state their causes or defend them in court, or cannot, and therefore pleaders are necessary." He also noted a similar need for pleaders with regard to the use of exceptions as "folk do not generally know all the 'exceptions' . . . [and] pleaders are necessary who know how to set forth causes and to defend them according to the rules of law and the usage of the realm . . . ." The Mirror of the Justices, supra note 19, at 47, 90. More technical and complex litigation, beyond the competence of laymen, in the county courts may have led to the Statute of Merton (see supra note 40 and accompanying text) authorizing the use of attorneys in the county courts . See L.B. Curzon, English Legal History 147 (1979). In reviewing all these procedural and other legal complexities, one sees, perhaps, the 3.

The London Ordinance of 1280 a. The Ordinance. In contrast to the Statute of Westminster I, Chapter 29, the London Ordinance of 1280, enacted by city officials, was long and detailed, regulating both admission to practice and lawyer conduct in the City of London courts. 232 As to admission, the Ordinance expressly authorized the Mayor and Aldermen to control the right of serjeants ("countors") to appear in the London courts and probably also 229. See I Coke, The Second Institute on the Laws of England, supra note 9, at 213. 230. See id.at 179,249; II id. at 443-45; Coke, I The First Part of the Institutes of the Laws of England, supra note 85, at 368b. In taking the position that many statutes merely affirmed the common law, it is not clear whether he was taking a position in the theoretical debate regarding the nature of statutes (see supra note 177) or was taking the more practical view that statutes prohibited conduct already forbidden and remediable under the common law. His specific comments regarding Chapter 29 suggested the latter. Coke's bias regarding the courts and crown are well known and some felt it affected his interpretation of Edward I's legislation. He has been labeled a "partisan and an advocate" and accused of "grossly pervert regulated the admission of attorneys. 233 These officials established that only competent lawyers could appear by excluding those "who do not reasonably understand their profession, and how becomingly to manage the business and the suits" of their clients properly. 234 The Ordinance preserved, however, the citizens' right to continue using nonprofessionals ("either from stranger or from relative") to assist them in court. The

Ordinance controlled only the admission of those who held themselves out as professional lawyers ("who generally frequent our courts and are constantly dwelling among us"). A very interesting aspect of the Ordinance's regulation of admission, perhaps the earliest example of legal specialization and an unusually stringent one, was its preclusion of countors from being an attorney or essoiner, essioners from appearing as countor or attorneys, and attorneys from being essoiners. 235

Statute 4 Henry IV, Chapter 18 (1402) This statute focussed primarily on regulating attorney admission although it also dealt with their misconduct. The statute required the justices to examine all attorneys, including those already in practice, and "by their discretions" enroll only those "that be good and virtuous, and of good fame" and conditioned admission on swearing to institute no suit in a foreign county. It also required the disbarment of the attorneys who failed the judicial examination ("the other attornies shall be put out") and notice to their clients to retain substitute attorneys to avoid prejudice. The statute also provided that if any enrolled attorney "do die, or do cease," the justices shall enroll "another in his place, which is a virtuous man and learned." Finally, it required disbarment from the king's courts of any attorney "found in any default of record, or otherwise." 348

The 1402 Common Petition provided insight into this regulation's background 347. See 3 Rotuli Parliamentorum 306, no. 28, 16 Rich. II (1393). The petition requested that clerks only be permitted to act as attorneys by the king's order. The king referred the petition to his council for examination and remedy. The clerks urged the king to reject this petition and apparently nothing was done after he referred it to the council. See Law & Magazine Rev., supra note 8, at 249. A London regulation prohibited attorneys from sitting in the courtroom among the clerks and from tampering with the rolls. See Christian, supra note 8, at 23 citing the Liber Albus). Forgery of documents and abuse of legal forms were widespread and serious problems. See II Holdsworth, supra note 9, at 457-58. 348. 4 Henry IV, ch. 18 (1402), II Statutes of the Realm 138-39 (1810Realm 138-39 ( , reprinted 1963. A complete text of Chapter 18 is attached as Appendix VII. Chapter 19 had a conflict of interest provision, barring certain officials from acting as attorneys in any franchise or bailiwick in which they were an official. 4 Henry IV, ch. 19 (1402), II Statutes of the Realm, supra, at 139. Again, the regulatory objectives were to control the number of attorneys and limit the right to practice only to those well trained, knowledgeable, competent, and of good moral character. The petition and resulting statute reflected the view that during the 14th century excessive attorneys had been appointed, 352 many of whom were ignorant and engaged in misconduct. 353 Coke saw these problems, particularly excessive attorneys, as causing an undesirable increase in litigation 354 and the statute as a solution to that Campbell, The Lives of the Chief Justices of England 138 (1881). Shakespeare memorialized Gascoigne in Henry IV, Campbell's lack of evidence, Brand is skeptical regarding his assignment of authorship . Brand March 29, 1997 letter, supra note 311. 352. Some historians believed that a substantial increase in attorneys had occurred in the century after the 1292 Ordinance. See Christian, supra note 8, at 16-17; I Lord Campbell, supra note 351, at 138. Campbell said that the number had grown to 2000 by the 14th century's end. That high number, for which he offered no support, seemed unlikely in light of Brand's and Baker's research indicating 210 in 1300 and 180 in 1480. See supra notes 277-81 and accompanying text. Campbell said that the growth was "a proof of increasing population, wealth, and civilization; but a general cry arose 'that the people were pilled by barrators and pettifoggers . . . .'" See I Campbell, supra. One commentator stated that "many thousand general attorneys were annually appointed," that "the Rolls of Parliament was full of petitions directed at the multiplicity and evil practices of the attorneys," of which the 1402 Petition was one, all of which produced this statute . See Law & Magazine Rev.,supra note 8,. Some felt that laxity in the appointment process caused the problem. See id.; Kirk, supra note 8, at 11-12. Birks felt that the complaint targeted "the students of the recently formed Inns who saw an easy means of making money . . . as attorneys." Birks, supra note 8, at 42. It is noteworthy that the 1402 statute did not fix county quotas although the Petition had requested them. This omission may explain the further request for county quotas in the 1420 Common Petition. See infra notes 369-70 and accompanying text. 353.

Holdsworth stated that this statute resulted from the "pressing" need to regulate lawyers, given "the increase in the number of professional attorneys" and "ignorant attorneys." See II Holdsworth, supra note 9, at 505-06. Reeves noted that attorneys "had now become a very considerable body of men," whose "ignorance and want of knowledge" caused "mischiefs." See III Reeves, supra note 9, at 233-34. Another said that many of those appointed were "ignorant persons, who often abused the trust reposed in them. " See Law & Magazine Rev.,supra note 8,at 248. 354. Legal historians noted "the litigious nature of the times." See Christian, supra note 8, at 17-18. Brooks found a steady increase in litigation from 1358 to a peak in 1414, with a leveling off and a gradual decline during the second half of the 15th century and a low at its end for almost 100 years. He attributed the 1358-1448 fluctuation to "general demographic and economic conditions", citing factors such as a decline in business activity, particularly in agriculture and the cloth trade, and the Black Death and other epidemic diseases; but that no simple explanation adequately explained the fluctuation in the second half of the 15th century. By the mid-16th century, litigation rose again and the period 1560-1640 was "one of the most litigious periods in English history." See Brooks,supra note 8,[79][80][81][82] Others saw the petition and statute manifesting broader deficiencies in the justice system. 356 Although the efficacy of this statute was uncertain, 357 it was nevertheless significant. First, it reiterated the notion of attorneys as officers of the court and the importance of judicial control of admission to limit numbers, insure competence, and eliminate misconduct. 358 In this respect, it bore a significant resemblance to the Ordinance of 1292, regulating admission of Common Bench attorneys 359 as well as the London Ordinance of 1280, which instituted similar controls in the London courts. 360 Second, this 355. This 1402 statute was among several that prompted Coke's comment that "the multitude of atturnies, more than is limited by law, is a great cause of increase of suits." He saw these statutes as "made for avoiding and decreasing of vexatious suits." See Coke, The Fourth Part of the Institutes of the Laws of England, supra note 9, at 76. Recent commentators have agreed. See Christian, supra note 8, at 18. The number of attorneys was a "chronic complaint" and the 1402 statute was a product of "such grumbling." See Robson, supra note 8, at 2. "Untrained attorneys multiplied in proportion to numbers of middle-class litigants." See Harding, A Social History of England, supra note 9, at 171. 356. Birks believed that "the dwindling power of monarchy was having a disastrous effect on the administration of justice," citing a judge who collected 500 men to ambush a person to settle a dispute over a common pasture as epitomizing "the appalling state of affairs." See Birks, supra note 8, at 43. Kirk believed that judges had not discharged their duties under the 1292 Ordinance to control admission and that "these were troublesome times in which the discipline of attorneys was completely unimportant." He said that the courts were not working to achieve justice, but "simply as a means of gaining one's own ends" and that corruption and coercion of juries, corrupt judges, maintenance, delay and ineffectiveness of the courts were common, serious problems. "The judges were too much concerned with greater problems to trouble themselves about this one [attorneys]." See Kirk, supra note 8, at 69-70. Others saw different broader problems. "The statute of 1402 failed to remedy evils which sprang from matters rooted deep in men's nature, which were less amenable to parliamentary treatment than the number of attorneys." See Christian, supra note 8, at 21. 357. Birks concluded that it had no effect on the numbers of attorneys as indicated by the continuing complaints by Commons. See Birks, supra note 8, at 43; infra notes 386-89 and accompanying text. Kirk felt that it was erroneous to expect that the statute would be "immediately effective, but Commons was not satisfied to wait." See Kirk, supra note 8, at 12. 358. See,e.g.,Brooks,supra note 8,[19][20]; Kirk, supra note 8, at 68-69; II Holdsworth, supra note 9, at 504-05; Sayles, Select Cases in the Court of the King's Bench Under Edward I, supra note 9, at ci & n. 6. 359.

Plucknett regarded these two statutes as "substantially the same." See Plucknett, A Concise History of the Common Law, supra note 9, at 218 n.1. 360.

The extent that the statute was intended to regulate the conduct of practicing attorneys is regulation was not merely a repeat of the earlier admission controls, for it appeared to extend them to all royal courts, including the Exchequer Court. 361 In addition, the required judicial examination of all aspiring and practicing attorneys was a more comprehensive control. 362 Finally, it was a response to popularly expressed and officially manifested grievances about the numbers, competence, and integrity of lawyers and their misconduct's harmful effect. Overall, the statute further entrenched attorneys as a professional class of lawyers.

The Public Attitudes --The Need for More Information 389. This theory, often denominated the economic theory of regulation, draws on public choice economics although it also has some support among historians. Economics: see authorities cited supra note 263; Utton, supra note 381, at 13-28; MacAvoy, supra note 3. History: Gabriel Kolko, The Triumph of Conservatism (1963); Kolko, supra note 3. 390 In the 16th century, a bill to limit the Common Bench attorneys "lapsed --not surprisingly, in a House full of lawyers;" and another one to limit fees failed as "the profession rallied its ranks and scared off the council." Geoffrey Elton, The Parliament of England 1559-1581 283-84 (1986). A study of the early 17th century found considerable rent seeking by the legal profession. See Anderson & Tollison, supra note 2, at 50-62. This study noted the principal role of Coke despite his reputation as an ardent free market supporter. [62][63][64][65][66] Abel discussed American lawyers persistent rent seeking efforts to restrict entry into the profession. See Abel, supra note 2, at 40-126.

Although the evidence leaves little doubt regarding the public animus towards lawyers, some questions remain. It would be interesting to know whether there was hostility toward all litigation, which seems unlikely, or only some of it, and, if so, what types. Also, a greater understanding of the broader social context for these attitudes would be useful. Ives said that during this period, law, "the ligaments of the body politic," had a fundamental, broad role, noting a "frenzied preoccupation with the law" and a "law-minded" society. 394 It would be productive also to explore these attitudes in the context of changes in the volume of litigation. One study demonstrated that the most substantial increases in litigation occurred later, after 1550. 395 During the medieval period, however, there was a significant increase until the early 15th century when the litigation leveled off and then declined until 1550. 396 Similarly, the claim that there were excessive lawyers needs further evaluation.

Tables 1 and 2 present a preliminary attempt to view this constant complaint in a broader context, although obtaining reliable and comparable data presents problems. Clearly, the

Different Types of Lawyers

As indicated, there were two broad classes of lawyers, serjeants and attorneys. 56 Some further details regarding these two types of lawyers, their differences, and subgroups will assist in understanding the various regulations.

a.

Serjeants. Serjeants were the aristocrats of medieval lawyers.

Appointment as a serjeant was a significant honor attendant with considerable ceremony and expense that resulted in membership in the prestigious Order of the Coif. 57 Moreover, being a serjeant was a stepping stone to a judgeship; and by the mid-14th century, serjeants were the exclusive source of judicial appointments. 58 Chaucer's selection of a serjeant "to exemplify his 'man of law'" signified their status. 59 Over time, it became a roots of today's procedures and may wonder how much change has occurred during the following seven centuries. 56.

In describing the English legal profession from 1450-1550, Baker subdivided these two groups further, identifying "six classes of common lawyer": serjeants and judges, clerks and officers of the central courts, attorneys, apprentices, utter-barristers, solicitors and accountants. See Baker, The Legal Profession and the Common Law, supra note 8, at 75-98. It is not clear, however, whether all six classes were really a type of "common lawyer." 57.

In his comprehensive book, Professor Baker has discussed in detail the estate and degree of the serjeant, the serjeant's coif and habit, and the creation ceremonies. See Baker, The Order of Serjeants at Law, supra note 8, at 42-107. Initially, the serjeant's feast lasted seven days; in 1547, it was shortened to one day although it was still extravagant. Order of the Coif declined from the mid-17th to early 19th century, ending in 1873 with the Serjeants Inn being sold shortly thereafter. . See Brand, Origins, supra lucrative profession as their profits were significant. 60 Interestingly, as early as the late 13th century, they could be required to plead on behalf of the poor. 61 Serjeants functioned as pleaders, speaking in court on behalf of litigants. 62 As a result of this function, they were initially known as countors (in pleading a plaintiff "made his count," 63 ) or narratores, the official latin term. 64 The term serjeant, which was apparently derived from serviens or servientes, and its French equivalent, serjant, meaning "one who serves," 65 replaced these terms. As the legal profession evolved, some 60. See Palmer,supra Soc. 47 (Bill No. 72) (W. C. Bolland ed., 1914) ("I pray you, for your soul's sake, that you will give me remedy of this, for I am so poor that I can pay for no counter."). Although some serjeants were retained for life with an annuity, more commonly they were hired for particular cases through a litigant's attorney. See Brand, Origins, supra note 8, at 100-05. The usual fees were 40 and 20 shillings for a yearly retainer and 40 pence for an individual matter. Id. Professor Baker said that important clients retained ten or more serjeants at a time; and, thus, "the leading serjeants" had "a substantial number of standing retainers." See Baker, The Order of Serjeants at Law, supra note 8, at 25. 61. See Holdsworth,supra,at 491. For a 1292 account of a request for the appointment of a pleader for an individual who could not afford one . See Select Bills in Eyre, 1292-1333 Brand stated that narrator, "one who tells a story," was the term most commonly used for serjeants on the plea rolls in the king's courts during the reign of Henry III and Edward I. See Brand,Origins,supra note 8,at 85,94. Sayles suggested that narrator was the official or formal term and countor, "the vernacular." See Sayles, V in the Court of the King's Bench under Edward III, supra note 9, at lxi; I Select Cases in the Court of the King's Bench Under Edward I, supra 9, at civ. Blackstone seemed to share that opinion. See I Blackstone, supra note 9, at 24 n. t . See Baker,supra,[21][22] Baker stated that by 1425, a serjeant had a duty to deal like an serjeants may have also functioned as attorneys. 66 During the second half of the 13th century, this overlap in function began to disappear, and a separation of serjeants and attorneys developed. 67 During the last quarter of the 13th century, the number of professional serjeants, although not numerous, expanded. 68 By the end of the 13th century, serjeants were the primary pleaders in the Court of Common Pleas, and to a lesser extent in the other royal courts.

In functioning as pleaders, it is important to point out that serjeants did not act as innkeeper. See Baker, The Legal Profession and the Common Law, supra note 8, at 105. It is not exactly clear why the term, serjeant, ultimately replaced the other terms. Baker, in his comprehensive work on serjeants, has suggested several theories, including the notion that disavowal made the serjeant a servant of the client and the broader pleading and advocacy roles of serjeants were broader than counting, as implied by the earlier term. See Baker, supra, at 21-27 & n.3. Brand does not agree completely with Baker's explanation. See Brand,Origins,supra note 8,[94][95] Sometimes the terms were used in combination with each other, i.e., serviens narrator and serjeant-countor, as they were called in Chapter 29 of the Statute of Westminster I, which will be discussed extensively below. See Sayles, V Select Cases in the Court of the King's Bench under Edward III, supra note 9, at lxiv. 66. See Brand, Origins, supra note 8, at 69; Kirk, supra note 8, at 10; VI Holdsworth, supra note 9, at 438; Sayles, I Select Cases in the Court of the King's Bench Under Edward I, supra note 9, at cvi n.7; Cohen, The Origins of the English Bar, supra 8, at 66. 67. See Brand,Origins,supra note 8,at 69,108; Baker, The Order of Serjeants at Law, supra note 8, at 14-15, 136-37. Many serjeants were attorneys prior to becoming a serjeant. See,e.g.,Brand,supra,at 113. 68. Dr. Brand has studied the size of legal profession during the reign of Edward I. He has identified a common group of 30-35 serjeants practicing in the Common Bench, the King's Bench and the General Eyre. The number almost tripled from the beginning of the reign (1272) to the end (1307). Brand's research has yearly data. See Brand,Origins,supra note 8,[70][71][72]76,[79][80] Baker also compiled substantial information regarding the number, identity, and appearances of serjeants from 1267-1875. See Baker, The Order of Serjeants at Law, supra note 8, at 140-250. Judging the substantially of the increase in serjeants is somewhat difficult as the pre-1290 records are less reliable and reflect minimums . Brand March 24, 1997 letter, supra note 40.

Not only was there an increased demand for pleaders, but they actively sought out clients in public places such as fairs, including the frequently discussed appearance at the court of the St. Ives Fair in 1275. See, e.g., I Select Pleas in Manorial Courts, 2 Selden Soc. 155, 159-60 (Frederic Maitland ed., 1888). See also Brand, Origins, supra note 8, at 85; Cohen, History of the English Bar, supra note 8, at 263-64. Even though the lords of the manorial courts tried to exclude the use of pleaders, they "invaded it," to use Maitland's words. I Select Pleas in Manorial Courts, supra, at 135-36. See also II Holdsworth, supra note 9, at 20. Maitland believed that counters who appeared at the St. Ives Fair were practicing in partnership. See I Pollock & Maitland, supra note 9, at 217; I Select Pleas in Manorial Courts, supra, at 159 n. 1. agents and, therefore, their pleading did not bind their clients. It was not uncommon for litigants to disavow what their serjeant had said. 69 As a result, the use of serjeants allowed a litigant to avoid the pitfalls of the technical pleading rules, which probably would have been fatal to the litigant's case had the latter appeared personally and misspoke since "strict and literal accuracy were required." 70 Pollock and Maitland went so far as to say that "perhaps the main object of having a pleader is that one may have two chances at pleading correctly," thereby subverting strict pleading rules. 71 There was, however, some risk of being fined ("amerced") for misspeaking and consequent disavowal. 72 In any event, the strategic advantages of this ability to disavow serjeants underscored the desirability and need for their use and contributed to the emergence of professional 69. See, e.g, II Holdsworth, supra note 9, at 312; I Pollock & Maitland, supra note 9, at 212. Holdsworth says that it was customary to ask a litigant "whether he will abide by his pleader's statement." Holdsworth, supra. A process of avowing or disavowing one's serjeant emerged and was the process by which a litigant authorized a serjeant. See Brand,Origins,supra note 8,[98][99][100]Palmer,supra note 8, As the legal profession developed, it was the role and responsibility of the attorney to avow or disavow what the serjeant had said. See Brand,Origins,supra,at 87. Pollock & Maitland also pointed out that the "notion of agency" was "not of any great antiquity" and that traditionally litigants had to appear in court in person. Pollock & Maitland,supra,at 211. Brand suggested that disavowal was possible since the pleaders were not "formally empowered" to speak on behalf of a litigant. See Brand, Origins, supra note 8, at 47. If not disavowed, the serjeant bound the party. 70. II Holdsworth, supra note 9, at 250-51. Citing Henry Maine's, Ancient Law, Holdsworth said, "no workable legal system can be formed unless there is strict adherence to rules and forms, even at the cost of injustice in individual cases." He went on to discuss the methods adopted to insure "substantial justice with a system of procedure rigid enough to be workable." & Maitland stated that "the whole fate of a lawsuit depends upon the exact words that the parties utter when they are before the tribunal." I Pollock & Maitland, supra note 9, at 211. 71. 1 Pollock & Maitland, supra note 9, at 212. Others have agreed. See, e.g., Lyon, supra note 9, at 439 ("chief advantage of having a pleader speak"); II Holdsworth, supra note 9, at 312 ("one of the chief advantages"). 72. See e.g,Brand,Origins,supra note 8,[47][48][55][56] Baker, The Order of Serjeants at Law, supra note 8, at 9; II Holdsworth, supra note 9, at 251. In one case, William of Cookham disavowed his pleader, John de Planez, for calling Henry I the grandfather rather the grandfather of the grandfather of King John. The mistake would been fatal had John spoken it and William was amerced for his mistake. See Brand,Origins,supra note 8,[47][48]56; II Holdsworth, supra; I Pollock & Maitland, supra 9, at 212. serjeants. 73 b.

Apprentices. In the late 1280s, a group called "apprentices of the Common Bench" emerged. Initially, apprentices, which derives from the French, apprendre, to learn, 74 were individuals studying to become serjeants of the Common Bench. 75 As an early form of law student, they likely functioned under the supervision of serjeants or senior apprentices. 76 By the end of the 13th century, apprentices were also directly representing clients and practicing law. 77 It seems likely, however, that they were practicing as attorneys, not pleaders. 78 Although they were still learners at the end of the reign of Edward I, during the 73. Interestingly, Pollock and Maitland suggested that fairness rather than opportunism supported the strategy of using pleaders. The fairness was that disavowal permitted avoiding the undue technical requirements, "the captiousness of the old procedure is defeating its own end," which were particularly unfair if one party was assisted by an expert and the other victimized by his own "blundering." See I Pollock & Maitland, supra note 9, at 211-12. 74. See,e.g.,Brand,Origins,supra note 8,at 110; Cohen, Origins of the English Bar, supra note 8, at 66-67; I Blackstone, supra note 9, at 23. Plucknett suggested that the term derived from the fact that these students were "apprenticed" to particular serjeants. See Plucknett, A Concise History of the Common Law, supra note 9, at 218. Brand disagreed. See Brand,Origins,supra note 8,at 207 n.33. Plucknett also may have changed his mind. See Plucknett, The Place of the Legal Profession in the History of English Law, 48 Law. Q. Rev. 328, 335 (1932), reprinted in Plucknett, Studies in English Legal History, supra note 9. 75. See Brand, Origins, supra note 8, at 110. 76. See Brand, Origins, supra note 8, at 110-14;W.C. Bolland, Two Problems in Legal History, 24 Law Q. Rev. 392, 393-94 (1908 Since most serjeants were attorneys first, Brand suggested that persons learning to be serjeants functioned as attorneys to learn and support themselves although they did not consider themselves full-time professional attorneys. See Brand,Origins,supra note 8, Also, apprentices may have functioned as attorneys out of necessity since they were excluded from pleading in the Common Bench by serjeants. Some evidence indicated client unhappiness with apprentices' services as attorneys while studying law. See Birks, supra note 8, at 39-40;W.C. Bolland, Select Bills in Eyre, supra note 60, at xlv-xlvi, 52 (1914). One commentator has suggested that the Ordinance of 1292 (See infra notes 274-303 and accompanying text), not only recognized, but required, this "new fangled and transatlantic notion, --the combination in one person of the characters of Attorney and Advocate. " See Law & Magazine Rev.,supra note 8,at 247. 14th century apprentices emerged as a group of pleaders who were entitled to appear in courts, other than in the Common Bench, on their own and plead on behalf of clients. 79 Thus, the more experienced apprentices functioned like serjeants and were "clearly men of eminence in their profession." 80 Those who were skilled and fortunate became serjeants. As the influence of serjeants as professional group declined, 80a apprentices became the more important group of pleaders and are generally seen as the predecessors of today's barristers. 81 By the mid-14th century, they created the Inns of Court. 82

79.

See Brand, Origins, supra note 8, at 158. Plucknett said, however, that "it would be hazardous to say that an apprentice in 1292 could not address the Court of Common Pleas." Plucknett, supra note 74, at 336. While he gives no date, Baker stated that apprentices, although not permitted to plead, appeared in court to "lead evidence in trials at bar, to argue in assizes adjourned into the Common Pleas, and to put questions to the judges." Baker, The Order of the Serjeants at Law, supra note 8, at 42. 80. Plucknett stated, "These apprentices were therefore clearly men of eminence in their profession, competent to give the government useful technical advice, of sufficient substance to be taxed on the highest scale of the profession, and . . . fit to be entrusted with the very responsible task of legal education." Plucknett, supra note 74, at 336. Ives has stated that apprentices were the senior members of the Inns of Court, with rights of audience in all courts except the Common Bench. Some may have previously been court officials or held such positions after becoming an apprentice. See Ives, supra note 8, at 18. Plucknett's reference to "taxed" is the poll taxes assessed by the crown on various types of judicial officials, lawyers, merchants, and others. In 1379, justices were assessed 100 shillings, serjeants and senior apprentices of the law 40 shillings, other apprentices pursuing law 20 shillings, and other minor apprentices and attorneys 6 shillings eight pence. III Rotuli Parliamentorum 58, no. 15, 2 Richard II (1379)(1767. One reason for the emergence of senior apprentices in these courts was a drastic reduction in the number of Common Bench serjeants after the mid-14th century, making it difficult for them to take the work available in the other courts . Brand March 24, 1997 letter, supra note 40. 80a. The decline of serjeants may have begun in the early 17 th century and culminated in the early 19 th century. Several factors contributed to their decline and ultimate disappearance: including the failure to extend their Common Bench monopoly to the other royal courts and the increase importance of such courts, the loss of the former monopoly, the use of written pleadings, the elimination of being a serjeant as a prerequisite to being a judge, and the opposition of Victorian chancellors. The first two developments created significant competition between serjeants and Inn benchers and utter-barristers for the "favour of attorneys" and the combined effect of all of them led to the elimination of the serjeants professional and social eminence. See Baker supra note 9, at 180-82; Baker, The Order of Serjeants at Law, supra note 8, at 108-29; VI Holdsworth, supra note 9, at 475-78; XV Holdsworth, supra note 9, at 223-24. 81. See Brand,Origins,supra note 8,at 158; I Blackstone, supra note 9, at 23; Bolland, supra note 76, at 393-94, 398-402. In Plucknett's words, "the apprentices outstripped the serjeants." Plucknett, supra note 74, at 338. Barristers were the first officials recognized by statute in 1532. See Wilfrid R. Prest, The Rise of Barristers 5 (1986). For a discussion of the development of barristers as a branch of the legal c.

Attorneys. Attorneys were "lawyers" who represented their clients in court, handling procedural matters and managing the litigation. As Paul Brand stated, "the primary function of the attorney was to attend court in place of his clients." 83 Their role did not include the pleading function. As indicated, in the 12th century, lay persons functioned as attorneys. Initially, they were called responsalis, a generic term, commonly use by Glanvill, denoting an individual who appeared in court to answer on behalf of a litigant. 84 The term "attorney" displaced this terminology for the agent who appeared in court. Writing in the mid-13th century, Bracton frequently used this term. 85 H. Baker eds. 1990)("the 1340s seem a likely period"); III H. A.L. Fisher, The Collected Papers of Frederic William Maitland 78-86 (1981); II Holdsworth, supra note 9, at 494. Holdsworth has a substantial discussion of the origins, organization, and operation of the Inns. . Sir John Fortescue's famous 1471 treatise, De Laudibus Legum Angiae, is the earliest account of the Inns of Court. See Fortescue, supra note 9, at 117-20. Serjeants were not members of these Inns and left their Inn on becoming a serjeant. See Baker, supra note 8, The Order of Serjeants at Law, at 84-87. Serjeants, however, had two of their own Inns. See II Holdsworth, supra note 9, at 485-89, 508-09; XII Holdsworth, supra note 9, at 14-15. When the Serjeants Inn was sold in 1877, they were readmitted to other Inns. See Baker, supra, at 86 n. 9. 83. See Brand, Origins, supra note 8, at 87. Brand discussed attorneys' functions, including insuring calling of the case, obtaining judgments and writs, having roll entries and verifying the accuracy plearoll enrollments, engaging serjeants for their clients, and avowing and disavowing the serjeant. . This term seems to refer to someone appearing as an attorney, i.e. a legal agent for a litigant. See Brand,Origins,supra note 8,[43][44][45][46] The traditional phrase referring to the use of a legal representative is per responsalem loco suo positum ad lucrandum vel perdendum. See, e.g, Glanvill, supra note 20, at 133; note 33 supra and accompanying text. Birks has suggested that ancient Jewish law may have an influence on this concept and terminology. See Birks, supra (19th ed. 1853). In his translation of Glanvill, Professor Hall translated responsalis as attorney, See, e.g, Glanvill, supra note 9, at 133, with an explanation, drawing on Bracton, of the differences between these two terms. Id. at 133 n. 1. In 1787, Reeves used the terms interchangeably. See Reeves, supra note 9, at 169-71. In his discussion of Glanvill, Holdsworth treated responsalis as equivalent to attorney. See II Holdsworth, supra note 9, at 315- 16. attornare derives from the French verb, attorner, meaning to turn or "to assign or depute for a particular purpose," 86 and the Norman noun, attornatus, describing a similar legal representative. 87 As with serjeants, the terminology signified these representatives' role.

Attorneys functioned as traditional agents for clients, their principals. 88 Thus, unlike serjeants, attorneys bound their clients.

Throughout the 13th century, professional attorneys emerged, their use expanded, 89 and their numbers and their caseloads grew. 90 The attorney's primary 86. See Brand,Origins,supra note 8,at 46, citing a dictionary of ancient French. Id. at at 177 n.93; I Pollock & Maitland, supra note 9, at 212-13 ("attorned (that is, turned to the business at hand)"). Brand said that the term attornare loco suo, to appoint in one's place, first appeared in 1182. See Brand,supra,at 46. "Attorn" was also used in a not dissimilar way in referring to nonlawyer agents. See I Pollock & Maitland,supra,. See Brand,Origins,supra note 8,at 46,. Brand says that attonatus was in use by 1200 to refer to those carrying out this function regardless of whether they were professionals . Brand March 24, 1997 letter, supra note 40. Cohen stated that attornatus derives from medieval latin, ad turnum, meaning one who took another's turn. See Cohen, A History of English Bar and Attornatus to 1450, supra note 8, at 126-43; 31 Law Q. Rev, supra note 8, at 65-66; Brunner, supra note 8, at 265-72; The Etiquette of the Bar, 3 Law Magazine & Law Rev., supra note 8, at 243. Coke distinguished between attorneys functioning as lawyers and others, calling the former "public" and the latter "private." See Coke, supra note 85, at 51b-52a. 88. See, e.g., Plucknett, A Concise History of the Common Law, supra note 9, at 216. For an early discussion of the attorney's role. See I Reeves, supra 9. at 169-71. It is important to note that the concept of agency in English law in general and with regard to legal representatives was not well established as the legal profession was emerging. See I Pollock & Maitland, supra note 9, at 211; Holmes, supra note 44. Holmes believed that the concept of a legal representative as an agent who bound his client principal was imported into English law from Norman law with some influence from "Northern sources" (Icelandic). The Making of the Common Law, supra note 9, at 15-17. According to Pound, Roman law included an agency concept with regard to a legal representative. See Pound, supra note 8, at 37-41. 89. Clients normally appointed attorneys through some form of an agreement. Brand identified four different types of agreements and payment methods, including an annual retainer or appointment for a particular case or group of cases. See Brand, Origins, supra note 8, at 91-94; Birks, supra note 8, at 53-55. Some rich and powerful clients, including Sir John Falstaff in the mid-15th century, engaged attorneys on a full time basis. See Brand,supra;Birks,supra,[63][64][65][66][67] Commentators have had difficulty evaluating attorneys' earnings. See, e.g., Birks, supra note 8, at 53. Attorneys's fees were generally less than those of serjeants. See Christian, supra note 8, at 27. That attorneys were assessed at a substantially lower rate (six shillings eight pence) in the 1379 poll tax than serjeants and senior apprentices (40 shillings)(see III Rotuli Parliamentorum 58, no. 15, 2 Richard II (1379)(1767-77)) may have indicated that being an attorney was not function was to appear in court to manage their clients' litigation. Although there were some individuals who apparently also functioned at least initially as pleaders in some courts, the overlap with pleaders was limited and ceased. 91 Over time, the attorney's function became distinct, with a practical division of serjeants and attorneys into separate professional groups. This separation foreshadowed the later formal bifurcation of the English legal profession into barristers and solicitors; 92 and attorneys were the nearly as profitable as the other types of medieval lawyers. Apparently attorneys had some trouble getting paid. As a result, they sometimes required payment in advance or used penal bonds. See Brand,Origins,supra note 8,[93][94] In 1494, Parliament ordered that judges should appoint attorneys free of charge for indigents. See Christian, supra, at 33. 90. Dr. Brand has developed substantial information on the appointment of attorneys in the various courts. In the Common Bench, there were about 200 attorneys by 1300, accounting for two-thirds of the litigation. Several attorneys had multiple appointments, in 40, 60, and even 70 matters. The use of multiple attorneys in a single matter declined and, by 1300, one attorney was used in 70% of the cases. See Brand,Origins,supra note 8,[71][72][73][74][75][76]159. In King's Bench, the use of professional attorneys initially was less than in the Common Bench. But, by 1300, their use in King's Bench exceeded that in the latter court; and 26 attorneys accounted for 74% of the appointments, drawing their business from several counties. Like the Common Bench, the use of multiple attorneys declined and, in 1300, a single attorney was used in 83% of the cases. 159. The use of professional attorneys in the General Eyre was not as great. Ten attorneys practiced in the London city courts. Id. at 159. Although partnerships did not emerge until the 17th century, attorneys may have practiced in some form of collaborative association with each other; and the evidence shows several members of the same family practicing as attorneys. See, e.g., Birks, supra note 8, at 56-57; Sayles, I Select Cases in the Court of the King's Bench Under Edward I, supra note 9, at c-ci. 91. See Brand,Origins,supra note 8,[53][54]109; II Holdsworth, supra note 9, at 505-06; VI Holdsworth, supra, at 431-44; Birks, supra note 8, at 47-50; Sayles, I Select Cases in the Court of the King's Bench Under Edward I, supra note 9, at cv; Cohen, The Origins of the English Bar, supra note 8, at 66. By the end of the 13th century, this overlap in function occurred in the King's Bench and the local courts although not in the Common Bench nor London courts. See Birks, supra. Some litigants may have not used serjeants due to their cost. . Some attorneys, however, conditioned their appearance on appointment of a pleader. Although serjeants made the presentations in court, attorneys may have assisted by performing the prepatory work. See Curzon, supra note 55, at 202. Palmer said that lawyers who were professional pleaders in the county courts functioned as attorneys in the Common Bench, providing critical assistance to serjeants there. See Palmer, supra note 49, at 797-98. 92. See Baker, The Legal Profession and the Common Law, supra note 8, at 75-123; II Holdsworth, supra note 9, at 317-18, 504-06; I Pollock & Maitland, supra note 9, at 216. Holdsworth pointed out that attorneys were initially members of the Inns of Court although subsequently excluded. See II Holdsworth,supra, predecessors of solicitors. 93 d.

Essoiners. Essoiners were a type of attorney whose function was to appear in court and make excuses ("cast an essoin") for the nonappearance of a party.

Since essoins were frequently used during the 12th and 13th centuries due to strategic advantages associated with their use and complicated nature, Glanvill, Bracton, Britton, and Fleta make numerous references to essoins. 94 In reviewing those works, it is not always easy to determine whether those asserting essoins were a separate group who functioned only as essoiners or whether it was a professional attorney or nonexpert predecessor making excuses for nonappearance as an aspect of a general representational role. These 12th and 13th century works may be understood as describing a responsalis or attorney functioning as an essoiner. 95 Moreover, some legal historians supported this latter notion. 96 In the late 13th century, however, there was a formal separation in the 93. See Brand,Origins,supra note 8,at 159. Solicitors appeared in the 15th century and solicitors and attorneys were not merged until the 19th century. Id.; VI Holdsworth, supra note 9, at 448-57. The term, solicitor, derived from the Norman, sollicitur, which was based on a latin word meaning "to agitate, urge, or solicit." See VI Holdsworth, supra, at 448-50; Kirk, supra note 8, at 14. For a study of this branch of the legal profession in 16th-18th centuries, "the early modern legal profession," see Brooks, supra note 8. 94. See supra note 53. Bracton and Coke indicated that the power of the essoiner was more limited than the responsalis. Coke, supra note 85, at 128a; Bracton, supra note 21, at 73-74, 110-12. 95. See, e.g, Glanvill, supra note 20, at 11-21, 132-36 (essoniatore also used); Bracton, supra note 21, at 71, 77, 80-81, 95, 104-06, 112, 137, 145 (use of attornatus in discussion of making essoins although essoniatus also used); Fleta, supra note 23, at 122-26 (in discussing essoins seems to use attornatum and essoniatus interchangeably); Britton, supra note 22, at 349, 354-55, 357-59 (seems to discuss attorneys making essoins). Writing in the mid-18th century, John Reeves clearly described the function of the attorney to cast essoins. See I Reeves, supra note 9, at 170. 96. See Brand, Origins, supra note 8, at 89 ("commonly professional attorneys of the Common Bench who arranged for their clients to be essoined"); Birks, supra note 8, at 14, 56; Plucknett, A Concise History of the Common Law, supra note 9, at 216; Sayles, I Select Cases in the Court of the King's Bench Under Edward I, supra note 9, at ciii-civ. Moreover, attorneys acted as essoiners for other attorneys. Id. London courts of essoiners and other attorneys. 97 In practice, however, "essoining" likely was probably one function of any attorney rather than a separate role for a distinct subgroup.

97.

This formal separation was by the London Ordinance of 1280, which will be discussed in detail below. See infra notes 243 & 259-63 and accompanying text.

97a.

Brand has pointed out that once a client appointed an attorney, it was the attorney, not the client, who was essoined, who could not, in theory, essoin himself. However, in practice they may have been doing so . Brand March 24, 1997 letter, supra note 40. 98.

Given the common background of the continental and canon professions, it might be difficult to discern any differential impact of the former. For a discussion of the legal professions in different continental countries and their possible influence on the development of the English profession, see Cohen, A History of the Bar, supra note 8, at 398-423 (France, Germany, Spain); Brunner, supra note 8, at 257-67. See also Pound, supra note 8, at 70-73. Some scholars, referring to a treatise, Les Assises De Jerusalem, have suggested that by the early 12th century there was a legal profession in Jerusalem that may have influenced the development of the English legal profession. See II Holdsworth, supra note 9, at 292; Cohen, A History of the Bar, supra note 8, at 382-98. During the 12th and 13th centuries, canon lawyers appeared in the English ecclesiastical courts. By the end of the 13th century, a professional group of canon lawyers existed, whose education, admission, and conduct were regulated by those courts. 99 Moreover, the canon lawyers were divided functionally like the common law lawyers. The ecclesiastical advocatus denoted a pleader, comparable to the common law serjeant, and the ecclesiastical procurator, like a common law attorney, acted as an agent for a client-principal. 100 Moreover, common law judges and serjeants were knowledgeable about canon law, and canon lawyers regularly served the King. 101 More importantly, legal 99. See Brand, Origins, supra note 8, at 143-54. Brand identified three stages in the history of the development of canon lawyers: before 1190, 1190-1274, and after 1274. He discussed the professional education and ethics, practice qualifications, imposition of quotas, and ethical standards that developed during these stages. Id. Maitland and Montague stated that these canon lawyers, whom they refer to as "legists" and "decretists," preceded the English legal profession by more than a century. See Maitland & Montague, supra note 9, at 92. "Legist" described a qualified Roman lawyer. See Brand,Origins,supra note 8,at 155. "Decretist" derived from decretal, a papal letter used to determine a point of ecclesiastical law. See Black's Law Dictionary 411 (6th ed. 1990). The separation of canon lawyers from the beneficed clergy, who were precluded from appearing in the ecclesiastical courts, evidenced that the former was a "distinct, full-time occupation." See Brand, supra, at 151-52. See also Cohen, supra note 8, at 143-60. 100. See 1 Pollock & Maitland, supra note 9, at 215; Maitland & Montague, supra note 9, at 92-94. These lawyers and the terminology used to denote them had their roots in Roman law. See Pound, supra note 8, at 35-58. In discussing Glanvill's use of terms, Sayles said that Glanvill, when referring to an individual acting as an attorney, used the roman law, responsalis or the ecclesiastical, procurator as attornatus was not yet in common usage. See Sayles, I Select Cases in the King's Bench Under Edward I, supra note 9, at xci. 101. See Brand,Origins,supra note 8, One of the most famous lawyers during the reign of Henry III, Martin of Pattishall (Pateshull), was a priest. See Zane, supra note 17, at 641-42. Ralph de Hengham, an important lawyer, judge, and advisor to Edward I (see supra note 29) had a religious background. See II Holdsworth, supra note 9, at 318. Common law lawyers and judges were probably familiar with 1239 treatise on the procedure of the ecclesiastical court by William of Drogeda, an eminent canon lawyer and Oxford professor. See II Holdsworth, supra note 9, at 227, 283. William of Drogeda has been described as "the most famous teacher of law in thirteenth century Oxford . . . [and] the foremost advocate of his time in England." H. G. Richardson, The Oxford Law School Under John, 57 Law Q. Rev. 319, 330 (1941). Relying on the Chronicles of Matthew Paris, Pollock and Maitland suggested that the king used canon lawyers, "legists," in the Common Bench to assist him in political struggles. See I Pollock & Maitland, supra note 9, at 214-15. Early in the 13th century, clerical officials prohibited the clergy from appearing in the common law courts (see Holdsworth, supra; Birks, supra) except if the clergy appeared on their own behalf or for poor persons. historians agree that some common law lawyers may have previously been canon lawyers and that early lawyers probably practiced in both the ecclesiastical and common law courts. 102 Thus, these two legal professions did not exist "in total isolation." 103 Despite these similarities, the influence the ecclesiastical system had on the development of the common law profession is unclear. Some legal historians have suggested that a connection existed between this preexisting system and the emerging legal profession. Pollock and Maitland, with Holdsworth's endorsement, stated that the professional canon advocates served as "a model" for the professional common law pleaders. 104 Brand, however, concluded that the canonical and common law professions 102. See Brand,Origins,supra note 8,; II Holdsworth, supra note 9, at 313; Birks, supra note 8, at 29; Cohen, The Origins of the Legal Profession, supra note 8, at 73. Moreover, there were Italian lawyers resident in England who were trained in canon law and who appeared in the ecclesiastical courts. See, e.g., Maitland & Montague, supra note 9, at 93. For example, Richard de Anstey, to meet his needs in the ecclesiastical courts in his celebrated litigation (see supra note 18), used Master Ambrose, whom Pollock and Maitland described as "in every sense one of the first lawyers in England, first in time as well as first in learning." I Pollock & Maitland, supra note 9, at 214. See also Brand, Origins, supra note 8, at 1-2. 103. See Brand, Origins, supra note 8, at 154. Italian canon and civil lawyers were also influential. Bracton and English religious officials studied the works of Azo, the great early 13th century Bolognan legal scholar and some went to Italy to hear him lecture and study at the University of Bologna. See Brand,Origins,supra note 8,; II Holdsworth, supra note 9, at 227, 233, 271-77; Maitland & Montague, supra note 9, at 93. Pollock and Maitland described Azo as "the master of all masters of law." I Pollock & Maitland, supra note 9, at 122; Richardson, supra, at 322-24. Henry III retained an Italian lawyer, "the renowned Hostiensis" and Edward I retained Francis Accursii (Accursius), a well known Italian professor of roman law, who became one of Edward I's most trusted advisors. See Edward Jenks, Edward Plantagenet: The English Justinian 340 (1969); II Holdsworth, supra, at 146, 227 & n.3, 292; I Pollock & Maitland, supra note 9, at 122, 214; Zane, supra note 17, at 644. Accursii apparently was Francesco in Dante's Inferno and was the son of "the great Accursi," the great civil law glossator and professional legist. See 215. Cohen suggested that the existence of professional canon pleaders "stimulated a demand for the same order in the did not significantly influence each other's development. 105 Thus, although eliminating the possibility of some cross-fertilization is difficult, the two legal professions largely developed separately, responding perhaps to similar needs and problems.

b. Legal Education

As the English legal profession evolved during the 12th and 13th century, formal legal education existed both in England and on the Continent. In England, the ancient universities, Cambridge and Oxford, offered legal instruction. Their curriculum was based, however, on canon and Roman law and did not include instruction in English common law. 106 The latter did not appear until the 18th century, commencing probably Neither this model nor the existing English universities, however, was utilized to provide the legal education necessary for the emerging profession. 110 Instead, that legal education took an experiential, practical approach. 111 Legal learning occurred on the job and by watching experienced lawyers and judges. In the mid-15th century, Sir John Fortescue characterized this experiential education as a "public academy" that was intellectually and geographically well suited to its educational task. 112 Blackstone said that Henry III protected "this infant seminary of the common law" by his 1234 prohibition on the teaching of civil law at this "juridical university" or perhaps even on the institution of competing common law institutions. 113 110.

Maitland felt that broad, positive legal, cultural, and social effects resulted from not looking to the universities as source of the emerging legal profession. Looking elsewhere produced "worldly men, not men of sterile caste . . . learned, cultivated men. . . . great mediators between life and logic, a reasoning, a reasonable element in the English nation." F. W. Maitland, I Year Books, Edward II 1307-09, 17 Selden Soc. lxxx-lxxxi (1903 111.

Blackstone stated that as result of permanently establishing the Court of Common Pleas in Westminster, "a society was established of persons, who . . . addicting themselves wholly to the study of the laws of the land, and no longer considering it a mere subordinate science for the amusement of leisure hours, soon raised those laws to that pitch of perfections, which they suddenly attained under the auspices of our English Justinian, Edward the first." See Blackstone, supra note 9, at 22-23. 112.

He stated: For this academy is situated near the king's courts, where these laws are pleaded and disputed from day to day, and judgments are rendered in accordance with them by the judges, who are grave men, mature, expert and trained in these laws. So those laws are read and taught in these courts as if in public schools, to which students of the law flock every day in term-time. That academy, also, is situated between the site of those courts and the City of London, which is the richest of all the cities and towns of that realm in all the necessaries of life. And that academy is not situated in the city, where the tumult of the crowd could disturb the students' quiet, but is a little isolated in a suburb of the city, and nearer to the aforesaid courts, so that the students are able to attend them daily at pleasure without the inconvenience of fatigue. Fortescue, supra note 9, at 117. See Paul Brand, Courtroom and Schoolroom: the Education of Lawyers in England prior to 1400, 60 Hist. Res. 147, 147-48 (1987). 113. See I Blackstone, supra note 9, at 23-25; Plucknett, supra note 74, at 338; Cohen, A History of the Bar, supra note 8, at 423-27. Coke also discusses these "schools of law" administered by "diverse learned men in the laws" and Henry III's prohibition. See I Coke, The Second Part of the Institute of the Laws The education of pleaders occurred through apprentices, who were studying to become serjeants. 114 This legal training was relatively more structured and regularized. A critical dimension was regular attendance in court, judicially encouraged, to observe working judges and serjeants. In fact, a special enclosure in the court, "the crib," was set aside for the apprentices' use for this purpose. 115 Judges and senior lawyers also provided instruction and supervision. 116 Thus, by the late 13th or early 14th century, organized legal education for apprentices existed, 117 which led to the formation of the Inns of Court, of England, supra note 9, at A Proeme 5-6. In the early 13th century, instruction in legal procedure, pleading, and conveyancing for early notaries, clerks of large landowners, and "clerical odd job men" was available through written materials and a law school seems to have existed in Oxford for that purpose. See Soc. xv-xvi (1904). During the reign of Edward II, the apprentices petitioned the King for a second crib to be used for their instruction (a lour apprise) . See Turner, IV Year Books, 3 & 4 Edward II, 1309-11, supra. 116. Several legal historians have discussed the participation of Chief Justice Ralph de Hengham (see supra note 29), who lectured to the students at the end of a case. See e.g., Harding, England in the Thirteenth Century, supra note 9, at 173; Brand, Origins, supra note 8, at 111; Plucknett, supra note 40, at 22 (clerks, writ of deceit). Justice Hengham also used a hypothetical case to resolve a difficult point of law. See Harding, A Social History of English Law, supra note 9, at 135 (1966); II Holdsworth, supra 9, at 315. Students may have also learned by serving as judge's clerk and Hengham may have started his legal education that way. See Harding, A Social History of English Law, supra note 9, at 169. 117. See Brand,Origins,supra note 8,; Bolland, Select Bills in Eyre, supra note 60, at xlv-xlvi (1914). This education also included the use of written materials such as the Year Books, which were the annual case reports, analytical questions, and treatises such as Bracton, Britton, and Fleta. See Brand, Origins, supra note 8, at 111-13; Plucknett, supra note 74, at 338-39. Long ago Maitland suggested, and recent scholars such as Brand have confirmed, that apprentices compiled the early Year Books as part of their education and that Year Books were used for instructional purposes. See Maitland, II Year Books, 2 & 3 Edward II 1308-09 & 1309-10, supra note 115, at xiv-xv. See also Plucknett, supra note 40, at 5; II Holdsworth, supra note 9, 532-44 (reviewing all theories regarding the origin of Year Books); Birks, supra note 8, at 40. The analytical questions, questiones disputate, or as Brand called them "formal disputations," are interesting because they seem to resemble an early form of case method or Socratic instruction through the use of hypothetical or actual cases. Brand identified 23 separate questions appearing in nine different 14th century manuscripts. See Brand,supra,at 112,208 n.43. Two books written in the mid-12th century dealing with procedure and pleading, the Brevia Placitata and the Casus Placitorum, contain manufactured cases for case method instruction . See Brevia Placitata, 66 Selden Soc. 195 (G.J. Turner ed., Harvard Text 1951). and established their role in the education of barristers. 118 Less has been written regarding the education of attorneys. Because of the need for legal training, some did emerge in the late 13th century although it was apparently neither as extensive nor organized as that for apprentices. By 1278, however, lectures for beginning attorneys were being given at Westminster and between 1285 and 1290 several important treatises appeared that dealt with practice and procedure and were directed at aspiring attorneys. 119 More generally, Paul Brand has documented substantial evidence of "the organized education of common lawyers outside the courtroom" during the 14 th century. 119a These early developments in legal education and the limited influence of other legal professions evidence a more general phenomenon. They seem to be further evidence Apprentices also learned by functioning as attorneys while they studied to be serjeants. See supra notes 77-78 and accompanying text. The educational process of the Inns of Court made extensive use of analytical questions and discussion of cases. See II Readings and Moots at the Inns of Court, 105 Selden Soc. (Samuel Thorne & J.H. Baker eds. 1990). The education of the initial professional pleaders may have been entirely empirical without the use of written materials. See I Pollock & Maitland, supra note 9, at 217. 118. The Inns were sometimes called a "university." See II Holdsworth, supra note 9, at 494; I Blackstone, supra note 9, at 23. Holdsworth stated that "conditions of life" at the Inns were "strikingly similar to the modern conditions of collegiate life at Oxford or Cambridge." Holdsworth, supra, at 509. There are numerous discussions regarding the role of the Inns of Court in providing legal education for apprentices. See,e.g., Ives, supra note 8, at 40-58; II Holdsworth, supra note 9, at 493-509; Bolland, supra note 76, at 393-398; Brand, Courtroom and Schoolroom, supra note 112, at 149-50. Plucknett believed that the change from Latin to French separated English legal education from continental influences and led to the development of the Inns, which "became nationalistic, anti-academic, and fiercely opposed to civilians and canonists." As a result, the evolution of the common law was isolated from other intellectual movements. See T.F.T Plucknett, Edward I and Criminal Law 91-94 (1960). 119. See Brand, Origins, supra note 8, at 117-19. One of the treatises was Hengham's Parva and another was the first of several known as the Natura Brevium, the best known work of that title being Fitzherbert's 1534 New Natura Brevium. See supra note 33. In addition, senior chancery clerks offered instruction in the nature and drafting of writs. See Brand, Origins, supra law, both public and private" 122 and created a foundation for the civil and criminal law that was not significantly altered until the 19th century. 123 Holdsworth said that these reforms, whose impact is still "visible today," "foreshadowed the main lines of the future historical development of the law." 124

To some extent, these reforms were a culmination of evolutionary changes in the law and the legal system, beginning with Magna Carta and the succeeding reign of Henry III. 125 However, the special influence that Edward I probably had on these reforms should not be neglected. Whether due to his personality, exposure to continental legal reform and jurists, 126 or interest in legal matters, 127 many historians have singled out his 122. Lyon, supra note 9, at 431. In Winston Churchill's view, "few of these [statutes] were original, most were conservative in tone, but their cumulative effect was revolutionary." Winston S. Churchill, I A History of the English Speaking Peoples 288 (1956). 123. Lyon, supra note 9, at 431; II Holdsworth, supra note 9, at 299; Plucknett, supra note 9, at 27. Baker stated that legal historians have seriously neglected much of what happened after the death of Edward I, or perhaps Edward II, labeling it the "dark age of English history." See Baker, The Legal Profession and the Common Law, supra note 8, at 435-60. 124. II Holdsworth, supra note 9, at 291. See generally Plucknett, Edward I and Criminal Law, supra note 118; Theodore F. T. Plucknett, Legislation of Edward I (1949). Tout felt that this reform spirit was not limited to England. "The thirteenth century was above all things the age of the lawyer and the legislator. . . . From Bologna there flowed all over Europe a great impulse towards the systematic and scientific study of the Civil Law of Rome." The great universities developed strong legal faculties. The canon law existed side by side with the civil law and vied for jurisdiction over disputes. The lawyers of the northern mediterranean states looked at the feudal system and attempted to synthesize a harmonious body of law out of feudal principles. T.F. Tout, Edward the First 120 (1901). 125. See, e.g., Tout, supra note 124, at 121-23. As result of the Oxford Parliament in June 1258, Parliament instructed the judges and others knowledgeable about law to determine the need for reform. The resulting 1258 Petition of the Barons reflected a number of grievances, which ultimately led to the reforms the 1259 Provisions of Westminster. See Brand, supra note 9, at 325-67; Jenks, Edward Plantagenet: The English Justinian, supra note 103, at 119-20; Gerald P. Bodet, Early English Parliaments 25 (1968). 126. See II Holdsworth, supra note 9, at 291-92. Edward had manifested support for reform prior to becoming king. In 1259, he reaffirmed his initial unwilling support for the reforms in the Oxford Parliament of 1258 and his support has been deemed influential in the adoption of the Provisions of 1259 . See Michael Prestwich, Edward I 29-30 (1988); supra note 125 and accompanying text. Moreover, his sense of justice, reflected in his royal policies, was evident as early as 1259; he stated, in a writ to the justiciar of Chester, that if "common justice is denied to any one of our subjects by us or by our bailiffs, we lose the favour both of distinctive influence, 128 venerating him as "the English Justinian." 129 Maitland and Montague said that these combined influences created "the most brilliant eighteen years God and man, and our lordship is belittled." Id. at 64. 127.

Although Tout asserted that Edward I had legal training from Robert Burnell and was a member of the law faculty of the University of Padua (see Tout, supra note 124, at 7, 86), Brand disagrees and does not believe that he was a legal expert . Brand March 24, 1997 letter, supra note 40. Prestwich found it difficult to determine Edward I's attitude toward law, but felt that he was concerned with justice and efficiency and hostile to legal technicalities and delay . See Prestwich,supra note 126,at 272, 128.

See, e.g., Jenks, Edward Plantagenet: The English Justinian, supra note 103; Tout, supra note 124; Stubbs, II The Constitutional History of England, supra note 103, at 198-200; II Reeves, supra note 9, at 92-93, 276-78; Hale, supra note 9, at 190-96. Edward I was not likely involved with specific details, but provided the overall policy direction. See Prestwich, supra note 126, at 270. Noting his significance, Winston Churchill said, "But when the traveller gazes upon the plain marble tomb at Westminster on which is inscribed, 'Here lies Edward I, the Hammer of the Scots. Keep troth,' he stands before the resting-place of a master builder of British life, character, and fame." Churchill, supra note 122, at 310. While Edward I's influence may have been critical, it would be a mistake not to point out that his advisors probably had an important effect on him and these statutory reforms. Edward I had important advisors, many of whom were lawyers or had legal training. His reign has been called the "age of the lawyer" since most of his advisors were lawyers rather than churchmen. See John Chancellor, The Life and Times of Edward I 129 (1981); Maurice Powicke, The Thirteenth Century 375-76 (1953). Chief Justice Hengham (see supra note 29) was a critical legal advisor with regard to these reforms. See, e.g, Radulphi De Hengham, Summae, supra note 29, at lx-lxiv; Michael Prestwich, War, Politics, and Finance Under Edward I 230 (1972). Hengham had a religious background (see I Brand, supra note 29, at cxxxi-cxxxiii) and more generally religious figures still played a role. One of Edward I's most influential advisors was his Chancellor, Robert Burnell, also an important ecclesiastical official. See II Holdsworth, supra note 9, at 292-93; Tout, supra, at 73-83. One historian said that Burnell was "at [Edward I's] side at every step in his achievements as a legislator." Chancellor, supra, at 129-30. One of Edward's biographers said that Burnell's name first appeared in 1257 in a list of witnesses with others who became members of Edward's council. See Prestwich, supra note 126, at 23. Burnell's particular influence on the Statute of Westminster I is discussed below. See infra note 155 and accompanying text. According to Prestwich, the most influential members of Edward's council were Hengham, Burnell, Otto de Grandson, Anthony Bek, and Walter Langton. See Prestwich, supra, at 440. 129. Sir Edward Coke originated this practice. In commenting on the Statute of Westminster I(3 Edw. I (1275), I Statutes of the Realm 26 (1810, reprinted 1963)), Coke said that "all the other statutes made in the reign of this king may be styled by the name of establishments, because they are more constant, standing, and durable laws, then have been made since: so as king E.1 who . . . may well bee called our Justinian." Coke, I The Second Part of the Institutes of the Laws of England, supra note 9, at 156. Throughout the succeeding centuries, legal historians have continued to call Edward I, the "English Justinian." See, e.g., authorities cited supra notes 125 & 128; A.T. Carter, A History of English Institutions 71-83 (1986 reprint, 1902); Blackstone, supra note 9, at 23. Despite several centuries of this practice, Pollock thought the comparison between Edward I and Justinian "at best superficial." See F. Pollock, The Expansion of the Common Law 54-55 (1904). Of course, this was the same Edward I who expelled the Jews from England in 1290 and was also known as the "Hammer of Scots," which is inscribed on his tomb, as portrayed in the recent movie, "Braveheart." See Jenks, supra note 103, at 303, 326, I Pollock & Maitland, supra note 9, at 471. One historian, in reviewing Edward I's accomplishments and character, found it difficult to make an objective assessment. See Lyon, supra note 9, at 345-50, 436-42. in the whole history of English legislation." 130 Although the attitudes toward lawyers, which are not unrelated to this reform era, will be explored in detail in the context of the individual regulations, some description of the general themes provides a helpful background. At the end of the 13th century, there was clearly some dissatisfaction with the justice system and the individuals who operated it such as judges, sheriffs, and clerks. 131 Perhaps, the most celebrated occurrence was the judicial scandal of 1289, which provoked a major inquest, resulting in accusations of bribery and similar crimes. 132 Consequently, all the King's Bench justices and all but one 130.

Maitland & Montague, supra note 9, at 90. They stated that it was over 500 years before another period occurred, comparable to "this unique outburst of legislation." Id. at 90-91. Brand pointed out that important changes, unrelated to the legislation of Edward I, involving the judiciary also occurred during this period. See Brand, The Making of the Common Law, supra note 9, at 135-68. Plucknett, quoting Coke's statement that Edward I "was the wisest king that ever was" stated that we may see how his judges acted in the face of his vast output of radical legislation. They blundered at times, but we believe that they made a magnificent effort to join with the great monarch in making the law straight and strong. . . . With little technical training, perhaps without even a copy of the statutes before them, they laid the foundation of the later English Law well and truly, and deserve our admiration and respect for the part they took in the greatest work of our greatest King. Plucknett, supra note 40, at 169. Stubbs said that Edward I's legislation was "not the mere registration of unconnected amendments forced on by the improvement of legal knowledge, nor the innovating design of a man who imagines himself to have a genius for law, but an intelligent development of well-ascertained and accepted principles, timed and formed by a policy of general government." Stubbs, supra note 103, at 309.

131.

See, e.g., II Holdsworth, supra note 9, at 293-99.

132.

This scandal has prompted substantial scholarly comment. Brand and Holdsworth have useful discussions of this celebrated event. See Paul Brand, Edward I and the Judges: the 'State Trials' of 1289-93, printed in Thirteenth Century England 31-40 (P. R. Coss & S.D. Lloyd eds., 1985); II Holdsworth, supra note 9, at 295-99. Edward I, who had been absent from 1286-89, returned and confronted with substantial complaints, prompting him to appoint a commission to make an inquest. Maitland said that the judicial abuses alleged in the 1289 scandal, "our one great judicial scandal," may have influenced the writing of The Mirror of the Justices and "its main and ever-recurring theme [of] a denunciation of 'false judges.'" See Maitland, The Mirror of the Justices, supra note 19, at xxiv-xxv, xliii-xliv. The Mirror's author felt that this was not the first appearance of corrupt judges, alleging that King Alfred hung 44 judges for false judgments. See The Mirror of the Justices, supra note 19, at 166-67. As mentioned, Maitland and others have questioned the accuracy of this controversial book. See supra note 19. Prestwich noted the interesting contrast of judicial discredit of this scandal with the significant judicial role in the law reform under Edward I. See Prestwich, supra note 126, at 292. He also believed that the records did not support the chroniclers' view of of the Court of Common Pleas were removed. 133 The legal profession was not immune to this unpopular sentiment. In the early 13th century, Matthew Paris' Chronicles recounted "complaints against the [king's] pack of bellowing legists." 134 Other religious writers had also criticized ecclesiastical and common law lawyers and court officials for some time. 135 Moreover, lawyers as well as judges were targets of ridicule and satire in the political songs. According to the 14th century poem, pleaders "will beguile you in your hand unless you beware" and "speak for you a word or two and do you little good;" and attorneys would "get silver for naught,"

"make men begin what they never had thought;" and the poem warned "no man should trust them, so false are they in the bile." 136 The Mirror of the Justices was another public judicial responsibility for widespread corruption. Id. at 340. 133. See Sayles, V Select Cases in the Court of King's Bench under Edward III, supra note 9, at lxii. Apparently due to the shortage of individuals with legal training, Edward I reinstated, although not immediately, many of the judges, being satisfied with exaction of enormous fines. See VII The Cambridge Medieval History: Decline of Empire and Papacy 397 (Z.N. Brooke, C.W. Previte-Orton, J. R. Tanner eds., 1932). Robert Burnell, one of Edward I's most influential advisors (see supra note 128) was a member of the inquest commission, and another important associate, Chief Justice Ralph de Hengham (see supra note 29) was one of the accused judges. Evaluating the seriousness of Hengham's offenses has engendered much discussion, particularly since one of his offenses may have been reducing a poor man's fine. See, e.g, II Holdsworth, supra 9, at 298 & n.8. Hengham was fined for these "technical irregularities . . . in showing mercy to the poor." See Helen M. Cam, The Hundred and the Hundred Rolls 242 (1930). Brand has reviewed the evidence, concluding that Hengham's fine, the largest, was $10,000, not $7,000, marks and that he was convicted of actual misconduct, not reducing a poor man's fine --"a later myth." See Brand, supra note 9, at 152-53 & nn. 73-74; Brand, supra note 132; Brand March 24, 1997 letter, supra note 40. After this scandal, the new judges were required to swear "that they would take no bribe, nor money, nor gift of any kind from such persons as had suits depending before them,--except a breakfast, which they might accept provided there was no excess." Carter, supra note 129, at 73. Hengham's independent attitude also may have influenced his dismissal. See Prestwich, supra note 126, at 293. Edward I reappointed him to the bench in 1301. See Brand, supra manifestation of these sentiments. 137 Nor was this hostility limited to public expressions as there were official actions reflecting concern with lawyers. For example, the expanding use of lawyers led to attempts to restrict their use 138 or exclude them from appearing in some courts. 139 In addition, in 1259, Henry III reaffirmed the right of the citizens of Judges were accused of corruption ("Song on the Venality of Judges," id. at 224-26) and of being able "to turn the fair day into dark night." Id. at 336. I am grateful to Dr. Robert Bjork, Director, Arizona Center for Medieval and Renaissance Studies, for the following translation.

And counters on the bench that stand by the bar, They will beguile you in your hand unless you beware.

He will take 40 pence to take down his hood, And speak for you a word or two and do you little good, I warrant. Attorneys in country, they get silver for naught; They make men begin what they never had thought; And when they come to the ring, they hop if they can. All they can get that way, they think all is won for them

With skill. No man should trust them, so false are they in the bile. Dr. Bjork believes that "Bile" may mean "bille" or legal document, which would make more sense than "beak" as a metaphor for "face." It may also mean "bile," as in yellow or black bile, but that might be too complicated an allusion. Thus, he thinks it is a misspelling of "bille." The portion dealing with judges is as follows:

And justices, sheriffs, mayors, bailiffs, if I shall judge rightly, They can of the fair day make the dark night; They go out of their way and don't stop because of any slander, And make the justice-hall at home in their chamber, With wrong; For by the whitened hand, it shall go good enough. Dr. Bjork says that the last two lines mean that they wrongly use their homes as justice-halls (it is not a disinterested place) and use slight of hand (whitened = deceitful) to their advantage. Brand would go further, believing that "whitened hand" means one that has received silver and that the reference to "home" means the place they received bribes, which determined their judgments . Brand March 24, 1997 The lords of the manor tried to exclude pleaders from appearing in the manorial courts. See Maitland, I Select Pleas in Manorial Courts, supra note 68, at 135-36. In 1240 the Abbott of Ramsey prohibited his tenants "on pain of 20 shillings to introduce pleaders into his court to impede or delay his justice." Id. at 136. Growing complexity of litigation in the county courts, perhaps aggravated by growing use of attorneys, may have put laymen at a disadvantage, necessitating the use of attorneys. See Curzon, supra note 55, at 147. Professional pleaders may also have been banned the Courts of the Exchequer. See Harding, A Social History of English Law, supra note 9, at 172.

London to plead on their own without using lawyers. 140 As will be discussed with the particular regulations, there seemed to be a general belief that there was too much litigation that resulted from there being too many lawyers, and that some engaged in harmful conduct and also were not well trained.

Clearly, the climate of opinion was somewhat hostile to the legal profession.

Sayles stated that "so rapid was the growth of the profession of attorneys that some attempt had to be made to overhaul and regulate it," that "it was inevitable that vicarious representation should bring in its train much bribery and corruption," and that attorneys and pleaders "came under lash of public scorn and indignation." 141 Whether the climate was equivalent to Jack Cade's infamous, "The first thing we do, let's kill all the lawyers," 142 public attitudes created a climate conducive to regulation. "The time was ripe for regulation of the legal profession." 143 The perceived need for and the consequent 140.

See I Pollock & Maitland, supra note 9, at 215.

141.

Sayles, I Select Cases in the Court of the King's Bench Under Edward I, supra note 9, at ci, cviii. Harding said, "there was a natural prejudice against exploitation of plaintiffs' necessity." Harding, A Social History of English Law, supra note 9, at 170. The ill feeling against lawyers may have been because they were middleman, profiting on the problems of others. Id. at 178. If so, such attitudes were another example of longstanding antipathy toward middleman, evidenced by the "middleman offenses," the medieval prohibitions on forestalling, regrating, and engrossing. See Phillip Areeda & Louis Kaplow, Antitrust Analysis 46 (4th ed. 1988).

142.

Cade's famous quotation is from Henry VI, Part II, Act IV, Scene 2, line 78. Shakespeare based Cade and his mob, either on the actual 1450 Cade's Rebellion or perhaps inaccurately, on the 1381 Peasants' Revolt. See Richard Saccio, Kermode noted the hostility to lawyers reflected by Cade and the gravedigger's scene in Hamlet. He concluded that their use of "jargon unintelligible to nonlawyers" and their ability to "exercise dreadful powers as representatives of the great judge, God himself" inspired this feeling. See Frank Kermode, Justice and Mercy in Shakespeare, 33 Houston Law. Rev. 1155Rev. , 1161Rev. -64 (1996. While Cade's statement is usually seen as critical of lawyers, some have provided alternative, including complimentary, interpretations. See Kornstein, supra note 7, at 22-34 (1994). 143.

Cohen, A History of the Bar, supra note 8, at 237. passage of this regulation are fundamental evidence of this new legal profession's existence.

III. Medieval Regulation of the Legal Profession

A. Medieval Regulation and Statutes: A Perspective

A 20th century examination of medieval regulation requires some caution.

Sensitivity to important differences between medieval and modern and statutes and their analysis and in regulatory institutions is important. Thus, identifying these differences is useful. 144 The first problem is a definitional one. Today, the regulation of the legal profession would be viewed broadly, as the term "the law of lawyering" connotes. This regulation consists of discipline, malpractice and other civil liability to injured clients, judicial and administrative agency institutional controls, and legislative approaches. 145 The medieval regulation of lawyers cannot be considered with the same breadth and structured formality. Discipline was imposed by judges; no separate disciplinary authorities and regulatory agencies existed. Moreover, judicial sanctions were commonly imposed pursuant to statutes and ordinances and to some extent inherent judicial power.

Tort or other civil remedies for injured medieval clients were not common, and perhaps 144 Second, one must be aware of the critical differences from modern notions in the nature of medieval executive, legislative, and judicial power and functions. Plucknett noted that medieval governmental powers were fused, not separated; therefore, he warned against using modern constitutional notions to understand medieval statutes. 149 Due to this fusion, the medieval parliament was quite different than a modern 146.

A discussion of civil remedies for injured parties is outside the scope of this article.

147.

See generally Wilkins, supra note 145. 148.

The term, "statute" emerged late in the Henry III's reign and its usage became more common during the reign of Edward I, replacing the term, "provisions." See Frederic W. Maitland, Materials for the History of English Law, reprinted in II Assoc. of Am. Law Schools, Select Essays in Anglo-American Legal History 80-81 (1908). Bracton does not use the term, "statute" and its use, as a result of the clear establishment of statute law under Edward I, was one of the most significant addition made by Fleta, in his "epitome" of Bracton. See Fleta, supra note 23, at xviii. According to Sayles, under Edward I, "statute" became "the normal word for the new conception of legislation" although it was also used retrospectively in referring to older enactments. See Sayles, supra note 144, at xii. The King issued ordinances directly, without parliamentary involvement as with statutes. See II Holdsworth, supra note 9, at 309, 436-38. Legal historians have discussed the longstanding controversy over the difference between statutes and ordinances and Holdsworth suggested that the terms may have been used interchangeably. See II Holdsworth, supra note 9, at 437-40; Plucknett, supra note 40, at 32-34. "Statute," was used in referring to various types of enactments, with no exclusive meaning; and the various terms were not used carefully. See Sayles, supra, at xiii-xiv. It was difficult to know sometimes what was and was not a statute, particularly with what became known as "the statutes of uncertain date." See II Holdsworth, supra note 9, at 222-23. Richardson & Sayles discussed the concepts and usage regarding statutes and ordinances, warned against "simply divid[ing] legislation into the two classes of statutes and ordinances," and concluded that "nomenclature was a matter of indifference." See Richardson & Sayles, supra note 144, at 557-62. They also stated medieval lawyers did not consider legal tracts and rules of court as statutes even though they were bound with statutes or used the term. It may well be suspected that the power of the crown was still too near and too immense to be a safe subject for abstract speculation in the courts during our period. Indeed, so much were the legislature and judiciary bound together in the personal monarchy, that it may even be doubted whether there was much opportunity in early times for a serious conflict between statutes and prerogative, which were in fact merely two aspects of the King's power. Plucknett, supra note 40, at 138. While these conflicts were not serious, the King could not casually override statutes and he acknowledged the limitations on his power. See Sayles, supra 144, at xxxvii-xlii. Richardson and Sayles concluded that statutes were a part of the law and custom of the realm and could only be reversed by the same process required for their promulgation. See See Plucknett, supra note 40, at xviii. Richardson and Sayles said that a statute was "after all but a royal command" and, in discussing the mid-14th century, noted that "the king then is the legislator, not parliament." Richardson & Sayles, supra note 144, at 548, 562-63. Moreover, Ruffhead, an early statutory compiler, suggested that medieval statutes may not have been a product of parliamentary assent, but instead were "extorted by some predominant influence" although he warned that we ought not to judge the consensual statutes. 154 Thus, although there is little direct evidence, important advisors such as Robert Burnell, 155 Ralph de Hengham, 156 and Francesco Accursii 157 may have shaped his legislation and affected the regulation of the fledgling legal profession. 158 validity of these early statutes by 18th century criteria. Assessments based on 20th century ones would be even more problematic. See Manderson, supra note 148, at 318-19. Over time, discussed subsequently to some extent (see infra notes and accompanying text), the initiative for legislation originated elsewhere and legislation required parliamentary assent. 154. See Harding, England in the Thirteenth Century, supra note 9, at 302; Carter, supra note 129, at 111-12. One important reason for doing this was to insure that the new and old laws could be harmonized. See Id. There is little specific information about Accursii's activities other than that Accursii sat in on the October Parliament of 1276, which enacted the Ragman Statute, ordering the eyre justices out to hear the complaints advanced in the Hundred Rolls. Id. at 114. However, it is clear that Accursii was one of Edward's most trusted legal advisers and thus, must have wielded considerable power in the legislative councils that drafted Edward's statutes. See Jenks, supra note 103, at 340. 158. The chancery clerks, "having full knowledge of English law," may have also played a role in the legislative process; and a considerable number of them were retained as members of Edward's council. James F. Baldwin, The King's Council in England During the Middle Ages 78 (1965). Chancery clerks were university trained, and usually knew the civil, the canon, and English law. These clerks formed a closely knit society that performed the bureaucratic functions of the Crown. See Powicke, supra note 128, at 340. Although there is little evidence of their exact contribution, Edward's continued reliance on them as members Perhaps more important from the standpoint of the modern American notion of separation of powers was the participation of Hengham and the other judges in the drafting process. 159 Moreover, the judges did not ignore their role in creating the legislation when they subsequently acted as judges interpreting these statutes. In a well known colloquy with a lawyer, Justice Hengham said, "Do not gloss the statute for we know better than you; we made it." 160 The medieval practice was that "the maker of a statute should also be its interpreter." 161 Also, the medieval legal profession did not always distinguish between adjudication and legislation. 162 Thus, the creation and of his council indicated that these lawyers also influenced his legislation. 159.

See, e.g., Harding, A Social History of English Law, supra note 9, at 231; Plucknett, supra note 40, at viii. In discussing the promulgation and publication of medieval statutes, Richardson and Sayles have stated that the justices were the primary drafters and that statutes of general application were then communicated to the justices and the sheriffs. See (1810, reprinted 1963). In another case, Hengham resolved the question of legislative intent by referring to what "we agreed in Parliament." Plucknett, supra, at 49-50 & n.1. In another case, he privately explained the matter from the Bench to the clerks and "propound[ed] a general rule of far-reaching importance" and applied it to a later case in a way that it was felt could only be altered by statute. See id. at 22. Holdsworth and Sayles also discussed this judicial practice. See II Holdsworth, supra note 9, at 308; Sayles, supra note 144, at xxviii-xxix. 161. See Plucknett, supra note 40, at 21. In one case, a judge during the reign of Edward III said, "that the strongest argument against us which he knew was that Hengham, who drew the statute, construed it another way." II Holdsworth, supra 9, at 318 & n.7. As further evidence of this merging of functions, amendments of statutes apparently resulted from the King's Council's decisions in Parliament in individual cases. Fleta discussed Butler v. Hopton, which was discussed "in pleno parliamento" in which the King and his Council ("de communi consilio suo") decreed a remedy that was not just applicable to the the case, but would be available generally in the future, which thus "explicitly professed to amend the Statute of Westminster II." While such instances caused difficulty, they were generally treated as equal to binding legislation. Plucknett, supra note 40, at 23. 162. Id. at 22. Brand has pointed out that medieval lawyers were capable of making this distinction even if they chose not to . Brand March 25, 1997 letter, supra note 152. interpretation of medieval statutes fused what modern American constitutional theory would consider separate roles.

The subsequent discussion of the medieval regulations and their application also requires some knowledge of medieval statutory interpretation and how it differed from modern interpretation. 163 During this period, interpretation was a relatively new judicial enterprise as statutes emerged as a form of law. 163a As this judicial role developed, the approaches to statutory interpretation seemed somewhat different than modern notions. 164 163.

According to Sayles, "statute" first appeared as a legal term in the 13th century and "it signified no more than something or other ordained, a rule laid down, and it was long before it acquired a more technical content." Sayles, supra note 144, at xi. With regard to the meaning and usage of this term, he stated that It is evident, therefore, that contemporaries can in their own minds invest "statute" with a special meaning, but they will not habitually draw the fine distinctions that modern historians demand of them because they are essentially practical-minded men and refuse to waste their time making refinements which have no practical result. Id. at xv. Richardson and Sayles discussed the development of "what was a statute" and concluded that 1258, the Oxford parliament date, was the "dividing line between the old conception and the new." See Richardson & Sayles, supra note 144, at 201-06. Fifoot stated that statutes were not pre-eminent source of law, but merely equal with charters, ordinances, and provisions. See C.H.S. Fifoot, History and Source of the Common Law 70 (1949). See generally supra note 148; Manderson, supra note 148, at 317-21. Another commentator opined that medieval statutes were not normative, were "shrouded in mystery like the meaning of sacred objects," and were more concerned with iconic power than with specific norms of conduct. . . . In sum, the King was less interested in establishing communal norms than in setting up an administrative structure to oversee legal norms generated elsewhere." Manderson, supra, at 327-36. 163a. As Brand pointed out, the need to interpret statutes reflected a change in the underlying legal system to one where legislative texts were preserved and circulated (see infra note 167), which enabled lawyers to make arguments that were based on statutory language. Brand March 25, 1997 letter, supra note 152. 164. Plucknett posed the question, "what is a statute" and made the point that then current usage and reputation are the basis for understanding the contemporary (medieval) meaning of the word. Also, its textual and written nature are critical to understanding what a statute is and how it differed from other forms of law (see supra note 148). He believed that medieval judges and lawyers "had no idea of the interpretation of statutes in the modern sense of that expression." Plucknett, supra note 124, at 11-17. Thorne believed that interpretation as properly understood did not really begin until the 16 th century. See Thorne, supra note 144, at 3-68. Fifoot stated that "the interpretation of a thirteenth or fourteenth century statute is not to be approached with the same almost pathological interest which attends the reaction of a modern judge to a modern Act of Parliament." Fifoot, supra note 163, at 70. However, some modern approaches to statutory interpretation may have their roots in earlier practices, although not necessarily in the medieval period. For Not surprisingly, some medieval interpretative problems were not that dissimilar from those faced by modern judges. For example, medieval judges dealt with the meaning of language, situations not covered by statutory language, conflicts between statutes, and their retroactivity. 165 Some solutions to these problems also resembled those of modern judges. 166 Medieval judges, however, confronted some problems not faced by most judges today. 167 Despite some similarities between medieval and modern statutory interpretation, early interpretation involved critical differences. Medieval judges frequently exercised example, "purpose interpretation" seems to have originated in the late 16th century. See Allan Farnsworth & William Young, Cases and Materials on Contracts 606 (5th ed. 1995). 165. Sayles and Plucknett discussed these problems. See Plucknett, supra note 40, at 40-163. For example, judges felt in certain cases that the statute was too narrowly drawn and that its application should be expanded. See Sayles, supra note 144, at xxiii; Plucknett, supra, at 72-81. Also resolving conflict between statutes was a common problem. See id. at 91-102. Chief Justice Hengham's celebrated rebuke of a lawyer regarding the meaning of Statute of Westminster II (1285) because of his drafting role (see supra note 161) arose in resolving a conflict between that statute and the Statute of Marlborough (1268). number of statutes raised problems as to retroactive application. See Sayles, supra, at xviii-xxiii; Plucknett, supra, at 113-20. 166. For example, if the language of the statute did not cover the case, they interpreted it to expand the coverage. Plucknett discussed several cases where the judges extended the statute's words. There were "several striking examples of virtual legislation by judges. . . . The judges legislated on an ambitious scale." This practice was common during the reign of Edward I, but became "much rarer" by that of Edward III (1326-1377. . Sayles agreed and felt that the judges during Edward I were more likely to do so because of their role in the drafting process. See Sayles, supra note 144, at xxviii-xxix. Also, if two statutes conflicted, they construed the statutes to avoid the conflict or tried to give effect to both statutes . See Plucknett,supra,at 99,102. 167. Sometimes the statutes were mistranslated, and even worse the judges lacked copies of the statute because they were not widely published. See Sayles, supra note 144, at xv-xvii; Plucknett, supra note 40, at 13-19, 103-12. The lack of availability caused both judges and lawyers to misquote the language and led to misconceptions regarding the statute's application. Id. One popular misconception resulted in a significant expansion in the Statute of Merton. See supra note 40. See also II Holdsworth, supra note 9, at 426-27. Richardson and Sayles discussed the manner in which these early statutes were kept for official reference use and compiled in collections, out of which the official compilation, Statutes of the Realm emerged . See Richardson & Sayles,supra note 144, At some point, early on, lawyers had volumes of statutes produced for their own use. See Prestwich, supra note 126, at 268. more discretion in interpreting statutes. They sometimes ignored the statute, 168 extended its coverage, 169 and created judicial exceptions. 170 Several factors were probably influential: the fusion of judicial and legislative roles, 171 the newness of this judicial activity, 172 and the statutes' nature and the diminished significance of their language. 173 Statutes establishing penalties, like those regulating lawyers, were particularly vague and subject to interpretative discretion. 174 Careful attention to statutory language was uncommon when lawyers were initially regulated although this changed by the14th's 168. If judges believed the statute was too widely drawn, they would just refuse to apply it. See Plucknett, supra note 40, at 66-71. Plucknett noted that such occasions provoked no judicial nor constitutional discussion, confirming both the developing notion of statutory interpretation and governmental power. He stated that First, the courts undoubtedly did disregard statutes when they thought fit, and secondly, they expressed no principle of jurisprudence or political theory which would serve as an explanation--still less a reason--for their attitude. . . . [T]he absence of any discussion in the reports of the juridical and constitutional questions involved is really its most significant feature. Only one explanation is possible, and put quite simply it is this--that such questions as these were not asked during our period. If reasons of however great technicality made it desirable to neglect some words of a statute, then they were quietly set aside, but in doing so neither counsel nor judges enquired into the nature of statutes and legislation, the sovereignty of Parliament, the supremacy of the Common Law, the functions of the judicature, and all the other questions, which the modern mind finds so absorbingly interesting. , Sayles stated that "the Edwardian century was essentially practical and little given to theorising." Sayles, supra note 144, at xxxvi. 169. See supra notes 165 & 166.

170.

See Plucknett, supra note 40, at 57-65. The rationale for many exceptions and other creative interpretations was that many statutes were "clumsily drawn and would be unworkable in many cases but for the free use of judicial discretion." Id. at century's end. 175 Finally, the nature of the parliamentary process and the judicial role made reliance on "legislative intent" more difficult than for modern judges. Initially it was of little relevance, but with growing reliance on statutory language as evidence of intention. 176 Nevertheless, discerning the historical background for the particular regulations and insight into their objectives is possible. Also judges had to determine the relation between the statute and pre-existing common law. 177 A dual system governed by both statutes and common law emerged as judges desired to preserve the common law, integrating it when possible with statutes but abandoning it when clearly superseded by statute. 178 Assessing 175. See Sayles, supra note 144, at xxiv-xxix; Plucknett, supra note 40, at 82-90, 121-27. During Edward II's reign, judges began to interpret statutes more strictly; by the end of Edward III's reign, the accepted maxim was "privilegia statuti sunt strici juris." Id. at 90. 176. Plucknett said, "it was only gradually that the courts made a practice of examining the intention of a statute in order to find a clue to its interpretation, and only then as a result of a curious process of development which may be divided into three stages." Id. at 49. The first relied on judges' "principal share in lawmaking." In the second, legislative intention received more attention by reliance on professional tradition. In the third, "the Court infers the intention of the law-maker from the statute without the aid of personal knowledge, or professional tradition, and is only reached gradually and as a result of constitutional changes of wide-spreading importance." 177. This issue was one "of great urgency and little difficulty." See id. at 128. In Plucknett's view, medieval statutes did not merely affirm the common law, but made "novel law" that "defeated the common law." . This controversy was theoretical: whether the common law was "fundamental law" that could not be exceeded by a statute, which only became permanent by affirming the common law. Sayles and Holdsworth seemed to agree. See Sayles, supra note 144, at xxix-xxxvii; William S. Holdsworth, Sources and Literature of English Law 37-73 (1929, 1983 reprint). 178. See Plucknett, supra note 40, at 128-37, 164-69. Plucknett noted that this dual system resulted in the statutes intended to remedy abuses of the common law becoming a source of abuse.

[T]he fixation of the Common Law gave rise to widespread attempts to misuse its machinery . . . for the purposes of fraud and dishonesty. . . . Certain it is that a large proportion of our early statutes is concerned with this subject, and the Year Books contain countless cases of the abuse of legal process for the purposes of delay and even of injustice, as well as of collusive and fraudulent litigation. At first, perhaps, it was thought that precise, written, legislation would remove the evil, but the event proved the contrary. No sooner was statute made, than we find reported in the Year Books numerous of ingenious attempts to evade or circumvent the act. Originally, perhaps, the result of legal chicanery, the medieval regulation of the legal profession requires an awareness of these various differences.

B. The Initial Regulation

The evolution of the English legal profession and the significant legal changes during the 13th century make it appropriate to divide the study of the individual regulations into two periods: the initial regulation, ending with conclusion of the reign of Edward I in 1307 and the later regulation, covering from the early 14th century to end of the 15th century. In the first period, three enactments are critical: the Statute Westminster I, Chapter 29 (1275), the London Ordinance of 1280, and the royal Ordinance of 1292, de Attornatis et Apprenticiis.

1.

Statute of Westminster I, Chapter 29 (1275) a. The Statute. This statute is the first significant regulation of the English legal profession. 179 It prohibited "deceit or collusion" by any "serjeant-countor or other" in "the King's court" that deceive the court or beguiled the court or a party.

Punishment for a violation by pleaders was imprisonment for a year and a day and a prohibition on further pleading. It also imposed imprisonment on those who were not the new written and published statutes themselves rapidly became the cause of further artifice, and the battle of wits between the legislature and the smart litigant has continued until our own day. Id. at 166. 179.

Statute of Westminster I, 3 Edw. I, Ch. 29 (1275)

180.

A complete translated text of Chapter 29 is attached as Appendix II. Blackstone said that this statute was the first reference in law books to serjeants. See I Blackstone, supra note 9, at 24 n.t. It apparently remained in effect for a long time. Dyer cited it in 1567 in his charge to the Court of Common Pleas. See I Dyer's Reports, 109 Selden Soc. 132-33 (1994). Fox believed that it was still in force in 1908. See John C. Fox, The King v. Almon I, 24 Law Quar. Rev. 184, 193 n.3 (1908 Since William the Conqueror, English kings had instituted inquests asking juries of local residents questions about the state of local government to obtain information that the king required. 183 These inquests focussed on local subdivisions, the hundreds, 184 and on the king's local representative, the sheriff 185 and served important political purposes regarding the struggles between the local barons and the king and the latter's desire to develop loyal local citizens. 186 In 1274, Edward I ordered this inquest, 187 another example 183. See id. at 27-28. The Doomsday Book apparently was the product of such an inquest. See II Holdsworth, supra note 9, at 155; Cam, supra note 133, at 27. Under Henry II, the King's justices sitting in the shire court had the authority to call the knights of the shire, and the men of the hundred, to respond to the King's questions. These men were sworn in dozens as juries. This system was an invitation for local citizens to complain. See id. at 13. The articles being read to the hundred juries increased in number and scope after 1215. The juries were asked whether the sheriff had been keeping the rules of Magna Carta (1217) and obeying the ordinance of 1220 forbidding "the compulsory carousals known as scotales." The articles added for the eyre of 1254 inquired into the oppressions suffered by the jurors, litigants, prisoners and even the common folk of the shire. See id. at 23. See generally Domesday Studies (J. C. Holt ed. 1987) 184.

Counties (the Latin and French term), or shires (the Anglo-Saxon term) were subdivided into districts called hundreds. The members of the hundred were responsible for the crimes and defaults of other individual members, which was known as frankpledge. This local government unit, which King Alfred introduced and may have derived from ancient frankish traditions, had its own officials and courts . See Black's Law Dictionary 659, 741 (6th ed. 1990); Cam, supra note 133, at 9-19. Professor Cam identified the hundreds existing in 1274, their counties and lords, with a map. See id. at 260-85 and back cover. The sheriff's tourn was held twice a year for sheriff to ensure enforcement of the frankpledge. See id. at 17. The tourn was a special session of the hundred court with criminal jurisdiction held before the sheriff. See Black's Law Dictionary, supra, at 1491. 185. See Cam, supra note 133, at 1-27. The sheriff was an important local official and county royal agent, collecting the King's taxes. Early on, the sheriff was not closely supervised, but this soon changed when sheriffs withheld payments to the exchequer. Henry I required that the sheriffs meet annually in Westminster to account. Later Henry I set up an inspection by traveling royal justices, the courts in eyre. Local justices kept watch on the sheriffs. By the mid-13th century, the justices in eyre supervised the sheriff, who acquired more fiscal responsibilities. Since Henry II, a failure to balance accounts with the exchequer could result in prison for the sheriff. The king desired to please people, and to revive neglected laws which had for long been of these longstanding inquiries. As its Articles reflected, 188 it focussed on the encroachment on his rights and his subjects' oppression. 189 The 1274 Inquest produced significant evidence of abuse, known as the Hundred Rolls, 190 and the Statute of Westminster I was adopted soon after the Commissioners returned to Westminster. 191 sleeping because of his predecessors' weakness, the disturbance of the realm, and not least because of abuse by ill-behaved persons . . . and he compiled and published new statutes which were not only good law, but also most needful for the whole kingdom, whereby he gained the great and sincere affection of the people. E.L. G. Stones, Edward I 14-15 (1968). Professor Cam believed that Edward I enacted his reforming legislation for the good of England and to increase his popularity. See Cam, supra note 133, at 226. 187.

On August 2, 1274 Edward I returned to England after a crusade. England had been ruled by his counselors since November 20, 1272. Within ten weeks he ordered an inquiry into the usurpation of royal rights by the nobles and royal officials. The King sent his commissioners to every shire and put a series of questions to the juries of every hundred in the shire. See id. at xiv.

As to Inquest's general procedure, first, the sheriff assembled the hundreds juries to answer the commissioners' questions. Next the clerk transcribed the answers and then read them to the jury, whose members made any necessary corrections. Interference with the inquiry may have occurred. A Lincolnshire jury wrote, "we who have sworn to the above written inquests show to the lord King that both his bailiffs and other men's bailiffs in this wapentake of Kirton are threatening to oppress us, by reason of this verdict, with greater extortion than ever before." One bailiff even threatened one of the commissioners. See id. at 40-43. The procedure may have also employed the quarela, an informal complaint, which had been used extensively in earlier inquests. See Thirteenth Century England, supra note 132, at 12. 188. The Articles were the questions for the hundred juries. The geographical and subject matter scope of this inquiry were significantly expanded. On January 28, 1274, a commission was issued to ask two questions dealing only with encroachments on royal privileges, limited to only eleven counties. Edward I was conducting a similar inquiry in Gascony. The October 11, 1274 Commission greatly expanded the scope, asking thirty-nine questions touching all aspects of royal administration. "It is impossible to say whether this change of plan is due to Edward himself or to his servants and counselors." Professor Cam included the final 51 questions asked the hundred jurors 189. Edward I's objective in ordering the Inquest of 1274 was twofold. First, he desired to protect royal rights and privileges against encroachment by his subjects. Second, he wanted to ensure that his royal servants, i.e., his sheriffs, coroners, escheators, and bailiffs, were not oppressing the people. The period covered by this inquiry went back to 1267. A similar inquiry had occurred in 1255. Since Henry II, the King had used the eyre courts to conduct the inquests. See Cam, supra note 133, at 36. Prestwich said that Edward I was doing "nothing radically new" in this inquest. The questions were similar although the "speed and scale of the inquiry was of a different order. . . The question of how far he himself should be seen as the motivating force behind the Hundred Rolls inquiry is one incapable of resolution, but at the least he must have given new urgency and importance to an existing concept." See Prestwich, supra note 126, at 93. 190. This inquest was notable for its record keeping and the preservation of these records, the Hundred Rolls. As Professor Cam stated, "What is unusual about it is not so much that it took place as that its records were preserved." See Cam, supra note 133, at 28. 191 Medieval History: Victory of the Papacy, supra note 108, at 282. One recent commentator stated that the Statute was "an important signpost of change" in terms of its "visibility." It was directed to the "people," was written in french rather than latin, was intended to become widely known, was "the very birth of normativity in English statutes," and "reflected a revolutionary awareness of the wider world." Since it consisted of "administrative instructions to officials . . . to curb their abuses and corruption, . . .the law was beginning to be a physical presence in people's lives." Manderson, supra note 148, at 337-40. There was a significant effort to publicize this statute. "Sealed copies were sent to every county, with instructions that it be read and solemnly proclaimed in every hundred, city, borough, vill and other suitable place." Prestwich, supra note 126, at 269. 192.

Chapter 33, which dealt with barratry, should also be considered with this group. See 3 Edw. I (1275), chs. 24-30, 33, I Statutes of the Realm 33-35 (1810, reprinted 1963). 21,[25][26][27][28]32,34, and 42 asked questions regarding bribery, the receipt of inappropriate gifts, abuse of official power, extortion, fraud, coercion to make false accusations by sheriffs, court and judicial officials, and legal office holders . See Cam,supra note 133,at 251,253,.

The Inquest revealed that the sheriff took bribes to conceal felonies, to let people off juries and to execute writs; that numerous false accusations existed, some coerced by the sheriff from prisoners; that individuals remained in prison for lengthy periods without being tried; and that there was intimidation of juries to get a desired verdict and other jury tampering local government. While serjeants and attorneys did practice in the hundred and county courts, they primarily appeared in the royal Westminster and London courts. 195 Thus, lawyer misconduct was not within the Inquests's primary focus nor findings; and one must discover another explanation for the inclusion of Chapter 29 in this group of sections.

Several explanations are possible. First, its subject matter was logically related to the other sections' targets and concerns. Like the other targeted officials and individuals, lawyers were another participant in the justice system; and their deceit and collusion, like other prohibited conduct, had a negative impact on the operation of the judicial system and caused injustice or other harm to involved individuals. 196 Second, there was some evidence of the dissatisfaction with lawyer misconduct although most of it was after 1275. 197 Third, and perhaps most important, Burnell, Hengham, Accursii and the other judges and lawyers, who advised Edward I, were likely well aware of lawyer misconduct, its logical relation to these other statutory sections, and the need to include a prohibition like Chapter 29. Given their general influence on Edward I's legislation and their role in 195.

See supra notes 11-47 and accompanying text. Brand noted the limited appearances of serjeants in the manorial and hundreds courts. See Brand, supra note 8, at 85. Palmer found that attorneys were established in the local courts. See Palmer, supra note 8, at 135-37. The appearance of medieval lawyers in the Eyre may have given the hundreds juries some knowledge of lawyer misconduct. Brand noted that Chapters 25-30 all dealt with the royal courts and, therefore, he believes that they all lack direct connection to the 1274 Inquest. He suspects that they grew out of complaints to parliament . Brand March 25, 1997 letter, supra note 152. 196.

In discussing Chapter 33's prohibition of barratry, Brand stated that "barretor" may have been used as "a pejorative term for professional lawyers in general" although its precise meaning was dishonest lawyers. See Brand,supra note 8,at 121. 197. See supra notes 134-43 and accompanying text.

drafting this statute, it seems probable that they were instrumental in its inclusion 198 and unlikely that they would have exerted no influence on legislation regulating lawyers.

Thus, a strong circumstantial case supports the notion that the judges and lawyers of Edward I's council played a critical role in adopting of this regulation to curb lawyers' unprofessional excesses.

From this background, two essential concerns emerge, identifying the sections' objectives. The first was official misconduct as reflected in the sections prohibiting extortion, bribery, and abuse of power. The second was with excessive and specious litigation as reflected in prohibitions on maintenance, champerty, barratry and abusive litigation tactics. 199 Commentators contemporary with their adoption and later ones confirm these concerns and objectives. In discussing these sections, Fleta spoke of the 198.

The general influence of Burnell, Hengham and other lawyers and judges has been discussed earlier. See supra notes 155-60 and accompanying text. Burnell probably assisted in drafting the Statute of Westminster I. See Jenks, supra note 103, at 174-75. This seems logical, given his position as one of Edward's stewards during Edward's absence from 1272-1274, which meant that he was instrumental in starting the 1274-75 Inquest. Hengham, as Edward's personal legal advisor, likely also had a role in drafting this statute. See Thirteenth Century England, supra note 132, at 28 & n.145; Radulphi De Hengham, Summae, supra note 29, at xlvii. If Hengham was concerned enough to assist in educating young lawyers, he would probably be equally concerned with protecting the profession's reputation by enacting regulations that punished the unprofessional practitioner. Moreover, an abridgement of several statutes, including Statute of Westminster I, contains a note "per Ralph Hengham." See Radulphi De Hengham, Summae, supra, at lxiv. Francesco Accursi, one of Edward's most trusted legal advisers, probably had already been exposed to regulations similar to those in Chapter 29 due to his experience with similar regulations governing lawyers guilds in Italy. See John E. Staley, The Guilds of Florence 98-99 (1906). As to the role of these three important advisors, Jenks stated that "the men who drew up the Statute of Westminster the First were no theorists; they knew exactly where the shoe pinched. If Francesco Accursius sat by to suggest remedies, we may be fairly sure that Burnell and Hengham were there to report grievances." Jenks, supra, at 174-75. Professor Cam stated that those who drew up the Articles of the 1274-75 Inquisition played a role in drafting the Statute of Westminster I. See Cam,supra note 133,.

In addition, Chapters 42-44 prohibited the abuse of essoins, reflecting a concern with their potential for delay. 3 Edw. I, chs. 42-44 (1275), I Statutes of the Realm 37 (1810, reprinted 1963). See supra notes 53-54 and accompanying text. need to punish officials who "delay or impede the course of justice" and the excessive judicial officials who caused "manifest oppression of the people." Moreover, he said that royal officials should take no rewards nor bribes for exercising their office and should "be content with their fees" and that those who "foment or maintain suits . . . [are] despisers of the law." 200 Britton and The Mirror of the Justices reflected the same sentiments. 201 Several centuries later, Coke and Reeves echoed these concerns. 202 More recently, Holdsworth and Plucknett noted that these portions of Statute of Westminster I were necessary reforms to the justice system. 203 These two concerns and objectives coalesce with Chapter 29's regulation of lawyers. Chapter 29 prohibited only misconduct that occurred in a judicial proceeding because of its negative impact on the justice system. Again, the commentators' views over time have confirmed this objective. In discussing the prohibited deceit and collusion, 200. See II Fleta,supra note 23,153,225. 201.

Britton spoke of this conduct "hindering justice" and causing "damage or grievance" to the people and referred to those "who through malice have procured suits to be stirred up," causing oppression and wrongful litigation. See I Britton, supra note 22, at 91-92, 94-95. The Mirror of the Justices characterized the conduct prohibited by these sections as "reprehensible." See The Mirror of the Justices, supra note 19, at 186-87. 202.

Coke discussed these Chapters extensively, referring to "mischief,"" vexation," and "delay." He explained the derivation of champerty and said that it did substantial "mischief therein to the subverting of justice and truth." He said that maintenance "stir[s] up and maintain[s] quarrels" and "is punished with great severity" and that barratry was not adequately remedied by the Statute of Merton and caused mischief that required further remedy. See Coke, I The Second Part of the Institutes of the Laws of England, supra note 9, at 205-18, 224-25. Reeves stated that the Statute was needed for the "correction of many irregularities . . . and for the better administration of justice, both civil and criminal" noting that the prohibited conduct caused such interference. See II Reeves, supra note 9, at 107-08, 126-39. 203.

Holdsworth spoke of the "urgent need" to reform "the machinery of government" and noted that these sections exemplified Edward I's attempt to raise his officials' standard of conduct. See II Holdsworth, supra note 9, at 293 & n. 9. Plucknett said that the Statute was necessary to protect the king's subjects against the substantial oppression by his officials, revealed by the 1274 Inquest. See Plucknett, supra note 9, at 27. Fleta stated that it was "recklessly foolhardy as to contrive [such conduct] . . . to delude the court or any of the parties." 204 Britton referred to the "secret malice" of violators and the need for replacement by a "better serjeant." 205 Coke discussed this Chapter extensively. He stated that the lawyers engaged "unlawful shifts and devises so cunningly contrived . . . in deceit of the king's courts, as oftentimes the judges of the same were by such crafty and sinister shifts and practices inveigled and beguiled." 206 Sayles felt that Chapter 29 was necessary "to control" lawyers, "so wide were the openings for chicanery on their part." 207 Pollock and Maitland said that it was "necessary to threaten [pleaders] with imprisonment" to prevent this collusive and deceitful conduct. 208 One commentator even felt that it was the first step in the necessary restoration of order in the legal system. 209 Local citizen complaints subsequent to the 1274 Inquest confirmed this concern with lawyer misconduct as the rationale for Chapter 29. After the Inquest, the Statute of 204. See II Fleta, supra note 23, at 139.

205.

See I Britton, supra note 22, at 101-02. The Mirror of the Justices labeled this conduct "reprehensible." See The Mirror of the Justices, supra note 19, at 186. 206. See Coke, I Second Part of the Institutes of the Laws of England, supra note 9, at 212-17. A shift is a fraudulent scheme, artifice, trick, or evasion. Reeves spoke of "malpractice" that was equivalent to the bribery and extortion prohibited by the other sections of the Statute. See II Reeves, supra note 9, at 127-28. Blackstone said that it was directed at pleaders' "gross misdemeanors in practice." III Blackstone, supra note 9, at 29. 207. Sayles, I Select Cases in the Court of the King's Bench Under Edward I, supra note 9, at civ. He also referred to the "dark problem of the fees paid to attorneys." Id. at ci-ii. 208. See I Pollock & Maitland, supra note 9, at 216. There may have been a particular concern with conflict of interest. See Christian, supra note 8, at 14. Cohen stated that "the unprotected public suffered from the dishonesty of the legal practitioner." Cohen, supra note 8, at 194. 209.

He stated that the need arose from changes in the judicial system and "the general confusion caused by the political unrest of the period." See Kirk, supra note 8, at 6. Ragman authorized justices traveling in the Eyre to hear complaints regarding any offences over the prior 25 years and determine appropriate charges. 210 Whether an outgrowth of this process or pursuant to a traditional Eyre procedure, 211 the Eyres of 1292 and 1293 produced numerous complaints against lawyers. 212 Although not legislative history in the modern sense, this background assists in analyzing the meaning and application of Chapter 29.

c.

Application, Meaning, and Effect. Chapter 29 presented a central and a subsidiary interpretative problem. The primary issue was the meaning of "deceit or collusion;" the subsidiary one was determining to whom the prohibition applied, the 210. See Cam, supra note 133, at 229. This statute (4 Edw. I, I Statutes of the Realm 44 (1810, reprinted 1963)) took its name from the fact that the Hundred Rolls came to be known as the Ragman Rolls because of the seals (strips of cloth bound to their verdicts) of the jurors. Id. at 46. The statute's date is uncertain and it may have been adopted in 1276 although the follow up process did not begin until 1278. From then on, when the eyre justices traveled through England, they carried the Hundred Rolls so they could hear the complaints enumerated by the hundreds juries. In 1278, the justices in eyre carried with them 140 questions for a new inquest, some of which were repeats of 1274 questions. Annotations on the Hundred Rolls indicated that answers in 1278 were checked against the previous answers. Id. at 51,230. Also, on three occasions between 1279 and 1307, the king conducted inquiries that solicited complaints to Parliament regarding misconduct by his servants. The king's purposes were to demonstrate care for his subjects, to gather evidence for the punishment of wrongdoers, and to use the proceedings as a warning to corrupt officials . See The English Parliament in the Middle Ages, supra note 186, at 66. 211 meaning of "others." 213 Regarding the latter, Chapter 29 was clearly applied to attorneys as well as pleaders, with no distinction in their punishment despite the difference in statutory language. 214 Although a modern interpretative approach would focus on the normal meaning of the statutory language and the legislative history, the earlier discussion of medieval interpretation demonstrated that such an approach to exploring Chapter 29's meaning would be inappropriate because of the use of considerable judicial discretion and the diminished significance of language. Examining what commentators 213.

Other possible subsidiary issues existed, i.e. the covered courts and the intended beneficiaries of the prohibition. Chapter 29 referred specifically only to the "King's court" and the City of London adopted its own comprehensive regulation of lawyers. See infra notes 232-43 and accompanying text. Brand suggested that this omission may have been a drafting error. On some occasions, however, Chapter 29 may have been applied outside the king's courts. See Brand,supra note 8,at 121,123,137. Chapter 33 prohibited champerty and maintenance in the county courts. See 3 Edward I, ch. 33 (1275), I Statutes of the Realm 35 (1810, reprinted 1963). The intended beneficiaries of the prohibition would include the court, the miscreant lawyer's client, and the opposing party and its attorney. The remedial portion of the Chapter presented issues interrelated with these primary and subsidiary questions. See infra note 214. Chapter 29, however, created no private remedies for injured parties. 214. See Brand, supra note 8, at 120, 128-36; Sayles, I Select Cases in the Court of the King's Bench Under Edward I, supra note 9, at cvi n.8; I Coke, The Second Part of the Institutes of the Laws of England, supra note 9, at 214; Coke, The Fourth Part of the Institutes of the Laws of England, supra note, at 100-02. Coke also suggested that Chapter 29 may have been applicable to apprentices and court clerks. See I Coke, supra, at 214; IV Coke, supra, at 76. Brand identified one case in which an apprentice functioning as an attorney was punished under Chapter 29. See Brand,supra,at 114. He also raised the possibility that "others" could refer to nonprofessional attorneys and litigants, but concluded that it was only applied to professional serjeants and attorneys, consistent with the probable intent of the drafters. See Brand,supra,at 120. This question of applicability raised remedial questions. Although the terms of Chapter 29 applied stricter penalties to pleaders than "others," the final language suggested that the some conduct might "require greater punishment . . . at the King's pleasure." Brand stated that in practice both serjeants and attorneys were punished equally by imprisonment and disbarment. Id. at 136. With regard to these applicability and remedial issues, he said that "the legislation seems to have been badly drafted or to have been amended without due care." Id. at 120. The extension of disbarment to attorneys, despite the statutory language, illustrated the general medieval approach to the application of statutes. See supra notes 165, 166 & 169 and accompanying text. Coke illustrated the "greater punishment" language with a Chapter 29 case quashing a fraudulent land dispute settlement agreement by a serjeant, Matthew of the Exchequer (see infra note 222), and another case, having no relation to Chapter 29, also quashing a fraudulent settlement agreement. See IV Coke,supra, have said about the meaning of "deceit or collusion" and reviewing its application in actual cases seems the best way to proceed.

From medieval to modern times, the commentators have all taken a broad view of the meaning of this statutory language. Britton said that it punished serjeants' false pleading and other defaults that caused their pleading to be defective. 215 Coke said that Chapter 29 applied to misfeasance, although not nonfeasance, including common law fraud, false recitals in a writ, false statements in a pleading, and various forms of defective or unjustified litigation. 216 Brand characterized Chapter 29 as imposing "no more than a vague and unspecific violation," leaving the courts to develop more specific behavioral norms and that "deception" was given "a fairly broad interpretation." 217 Analyzing the cases actually applying Chapter 29 presents several difficulties.

Lawyers could be punished under several statutes in addition to Chapter 29, and judges could impose punishment irrespective of a statute. 218 Id. One of Edward I's biographers said Chapter 29 was directed at extortion by lawyers, particularly with "writs and methods of procedure in civil and criminal cases." Chancellor, supra note 128, at 131. 218. For example, a number of statutes in this period punished champerty, maintenance, and barratry applied to lawyers. Some of them provided for imprisonment and fines, some fines only, and with some punishment was "at the King's pleasure." These other prohibitions, which included other provisions of the Statute of Westminster I discussed above, will be discussed in section III(A)(4). See infra notes 293-98 and accompanying text. Moreover, judicial punishment in absence of a statute may have occurred fairly often. See Brand, Origins, supra note 8, at 126-36; Palmer, supra note 8, at 133-34. If the sheriff were the presiding officer, he apparently also had the power to suspend a pleader. See Palmer, supra note 49, at 796-797. Bad did not cite a specific statute. 219 Thus, in many cases determining the basis of the lawyer punishment is difficult. The best approach is to discuss those cases that involve Chapter 29, or may do so, given the nature of the conduct and the sanction.

The cases that seem to involve Chapter 29 encompassed a large variety of circumstances. 220 They included cases imposing sanctions, some in which the court used pleading, especially when a serjeant was disavowed was sanctioned under earlier statutes and by judicially imposed fines (amercements). See Palmer, supra note 8, at 133; Plucknett, supra note 40, at 155; supra note 72 and accompanying text. 219. See Sayles, III Select Cases in the Court of the King's Bench Under Edward I, supra note 148, at xviii-xx; supra note 148. Studies of the origins of the court's power to punish summarily for contempt have revealed the difficulty of distinguishing such punishment from that imposed pursuant to Statute of Westminster I, Chapter 29. Fox concluded that deceit or collusion, the precise offense of Chapter 29, could be punished by contempt and he also listed a Chapter 29 case in illustrating summary discipline of an attorney for contempt. See John C. Fox, The Summary Process to Punish Contempt I, 25 Law Quar. Rev. 238, 245 (1909); John C. Fox, The King v. Almon II, 24 Law Quar. Rev. 266, 267, 276-77 (1908). 220. I reviewed a number of sources discussing instances of lawyer misconduct and possible Chapter 29 violations. In total, I identified about 65 separate cases (some cases were discussed in more than one source), of which 13 involved serjeants and 52 attorneys and 47 did or may have involved Chapter 29 although in some cases it was difficult to be sure. See Brand, Origins, supra 1929); Select Bills in Eyre, supra note 60, at xliii-xlvi, [3][4][27][28][52][53][59][60][68][69]Year Books,3 & 4 Edward II,supra note 115,; I Coke, The Second Institute on the Laws of England, supra note 9, at 215-17; Coke, The Fourth Institute of the Laws of England, supra note 9, at 100-102. Appendix III contains a table of the reviewed cases. The cases are in four categories: conduct regarding clients, opponents, the court and third parties, and the lawyer's own litigation and business. This classification reflects the primary focus of the lawyer misconduct, but in many cases the effects are broader than the category chosen.

Brand identified 45 different cases of lawyer misconduct in the royal courts, a number of which he discussed. Of these, 36 cases did or may have involved Chapter 29, although a few are doubtful. The Chapter 29 cases discussed by Brand include substantially more involving attorneys (25) than ones regarding serjeants (11). He has also identified a number of cases punishing lawyers for misconduct in the eyre and local courts. The basis of the punishment in these cases was not revealed, but it may have been the inherent power of the court, not Chapter 29. Neither the eyre cases discussed by Brand nor collected by Bolland revealed any indication whether these cases implicated Chapter 29 although it was applicable to those courts. See Brand,Origins,supra ,; Select Bills in Eyre, supra, at 3-4, 27-28, 52-53, 59-60, 68-69. In some cases, it is also not clear whether a professional lawyer was the target of the complaint. Coke discussed nine cases, seven of which he stated involved violations of Chapter 29, most of which resulted in imprisonment. Two cases that he identified as violations were much later than those discussed by others. According to the the possibility of a sanction to threaten or admonish the lawyers, and one in which the accused lawyer used Chapter 29 as a defense. 221 Most of the complaints appeared to be by the lawyer's client although the opposing party and the court on its own initiative also were sources. 222 In some cases, the accused lawyer was acquitted by a judge or jury. 223 The sanctions varied from disbarment and imprisonment for a year and a day, to imprisonment only, a shorter imprisonment, temporary suspensions of different lengths, or a fine. 224 The cases involved a lawyer acting alone or in complicity with another attorney, opposing counsel, a client, or a court clerk. The sanctions were imposed on serjeants and attorneys, the latter more frequently and occasionally on clerks and apprentices. With regard to the meaning of "deceit or collusion," the cases involved a Professor Palmer discussed two cases in which the disbarment or imprisonment of an attorney, perhaps pursuant to Chapter 29, might have emerged from a private damage action or writ of deceit by the client against the attorney. See Palmer, supra note 8, at 137-39. Also, Coke, in a rather confusing discussion of the final phrase in Chapter 29, "greater punishment . . . at the King's pleasure," illustrated the meaning with two cases involving an action or writ of deceit by the victim. See I Coke, The Second Institute on the Laws of England, supra note 9, at 216-17; Coke, The Fourth Institute of the Laws of England, supra note 9, at 102. These cases suggested that an injured party used a writ of deceit to initiate proceedings against a lawyer under Chapter 29. One of these cases, which involved Matthew of the Exchequer, may be the same case that Brand discussed regarding imprisonment of a serjeant for violation of Chapter 29. Matthew, who was given two prison sentences for two Chapter 29 violations, also imprisoned for other misconduct and the subject of other complaints, was the alleged author of Fleta, so named because it was believed that author wrote it while in the Fleet prison. See Brand, Origins, supra 136. In at least one case, the offending attorney was required to pay damages or make restitution to the injured party. See Brand, Origins, supra, at 128. One attorney's imprisonment for a violation of the Chapter was influenced by the fact that he was "an attorney of ill repute" ("malae famae"). See V Select Cases in the Court of the King's Bench Under Edward III, supra note 9, at lxiii, cxxv-vi; Coke, The Fourth Institute of the Laws of England, supra note 9, at 101. wide range of lawyer misconduct. The covered conduct included forgery of writs; altering, damaging or removing official documents; conflict of interest and other breaches of client loyalty; false statements to the court, the client, the opponent, and in pleadings and other documents; acting as an attorney without proper authority, or continuing to act after removal; failing to act or premature termination of representation; antagonizing judges by unconvincing arguments, overzealousness, or not speaking in good faith; defective pleadings and documents; unjustified initiation or continuation of litigation, and repleading issues; and misconduct in the lawyer's own litigation or business dealings. 225 The judicial application of Chapter 29 illustrated the medieval statutory interpretation practices discussed above. The judges exercised substantial discretion. The language, "deceit or collusion" was not given a restricted or special meaning, but was interpreted very broadly. In practice, it seems that the Chapter was extended generally to nearly all forms of lawyer misconduct. Some of the covered conduct would seem to qualify as professional negligence although it does not appear that negligence generally violated Chapter 29. The extension of disbarment to attorneys and the possible application in courts in addition to the king's courts illustrated the medieval practice of extending statutes. Similarly, imposing punishments other than those stated in the statute and imposing punishment suitable to the nature of the conduct exemplified the use of discretion and a willingness to ignore the statutory language. 225.

See authorities cited supra note 220.

Application, Meaning, and Effect. Although it is difficult to know the extent to which the admission provisions raised the level of lawyer competency, their 253. It is not clear whether these restrictions applied to representation by nonprofessionals, which the Ordinance explicitly preserved. Cohen felt that it would be difficult to understand the rationale of applying them to nonprofessionals and that to do so would be "harsh and oppressive" with respect to the representation of the same client in a matter. See Cohen, A History of the English Bar, supra note 8, at 258. 254.

One possible explanation of the failure of the Ordinance expressly to prohibit attorneys from acting as serjeants (see supra note 235) is that it was unnecessary to do so since that separation of the profession was already subject to judicial control. Thus, the Ordinance's expanded practice restrictions may be viewed as "part of a more general scheme of total separation of the three groups, with the members of each group performing only the functions of his own group." Brand, Origins, supra note 8, at 110. Any discussion of the rationale of this aspect of the Ordinance implicitly raises the issue of the rationale and wisdom of the medieval and current bifurcation of the English legal profession. 255.

Brand stated that the various prohibitions reflected the concerns with "unnecessary stirring up of litigation," with the "corruption and betrayal of clients," with the "undue influence" of lawyers on the courts as well as the desire for "due decorum" in the courtroom and "to uphold the prestige and dignity of the city and its courts." See Brand, Origins, supra note 8, at 122. Sayles believed the Ordinance was necessary because "so wide were the openings for chicanery" by lawyers and because of the "monotonous outcry against the practice whereby the pleader insinuated himself into the confidence of one party and afterwards transferred his services to the other." See Sayles, I Select Cases in the Court of the King's Bench Under Edward I, supra note 9, at civ-v & nn. 10,1, cviii & n. 2. Pollock and Maitland noted that in enacting the Ordinance, the city officials "were compelled to lament the ignorance and ill manners of the pleaders and attorneys" practicing in the London courts. See I Pollock & Maitland, supra note 9, at 216. Cohen stated that Ordinance's objective was to remedy "the evils of their legal system." See Cohen, The Origins of the English Bar, supra note 8, at 68. application restricted the right to practice, reducing the number of lawyers practicing in the London courts. This effect was most clear with serjeants. According to Paul Brand, the Ordinance's enforcement created a monopoly in the London courts for a very few serjeants, four in 1289 and five in 1305. 256 The effect on attorneys was a bit unclear. Since most of the language referred to countors, the Ordinance probably did not expressly restrict the admission of attorneys and create a monopoly as it did with serjeants. On the other hand, some language implied that the Ordinance was intended to regulate the admission of attorneys, as it denied admission to those "who do not know how to manage the needs and suits" of clients in a competent manner, describing the function of an attorney, not a serjeant. In addition, the Ordinance referred to the unhappiness ("scandal") of attorneys with the lack of control over admission and competence. Moreover, its enforcement apparently created a "closed order of professional attorneys," with six admitted in 1289, and the number varying from 13 in 1298 to seven in 1307. 257 Although 256. See Brand,Origins,supra note 8,[109][110] Ordinance only created a monopoly with regard to practice by professionals, for, as noted earlier, it explicitly preserved a right of lay representation. 257. Id. at 84,117;Birks,supra note 8,at 42. According to Birks, only three attorneys were sworn although six were authorized. Id. at 51. He said that the Ordinance's regulation of the admission of attorneys, "a monopoly was established, which was maintained until the last century." Id. Kirk stated that annually the Mayor would fix the number of attorneys to be admitted and in the mid-14th century fixed also their fees. He stated that "the [Ordinance's] restriction on numbers meant that no guild need be formed." See Kirk, supra note 8, at 8-9, 13. Cohen's reference to an order of the Mayor and Alderman indicated that the Ordinance was applied to attorneys and essoiners as well as serjeants. See Cohen, The Origins of the English Bar, supra note 8, at 69-70. Interestingly, it was the serjeants, not the city officials or the court, who "elected and admitted" the six attorneys in 1289. See Brand,Origins,supra note 8,at 117. When the serjeants were admitted in 1305, the names of admitted attorneys were not provided, leading Brand to conclude that the attorney monopoly in the London courts "may only have been short-lived." Id. at 84,117. This conclusion is puzzling as he identified only seven practicing in 1307 and the largest number was 13 in 1298-99. Id. at 84. Brand believed that the failure of the Ordinance clearly to create a monopoly for attorneys explained why they were not required to take the oath imposed on serjeants . See id. at 122. there is no direct evidence regarding the segregation of serjeants, attorneys, and essoiners, the effect of regulating admission suggested that these practice restrictions were generally effective. 258 Very little evidence exists regarding the actual application of the Ordinance of 1280 conduct prohibitions to the practicing serjeants and attorneys. Brand discovered only three cases, two involving serjeants, and one an attorney. 259 With serjeants, the misconduct was a false exception by the opponent's lawyer, and conflict of interest. In the first case, the sanction was a temporary suspension and imprisonment pursuant to the Statute of Westminster I, Chapter 29 for less than a year and day; and the second case was settled. In the third case, the attorney was imprisoned under the Ordinance for professional negligence. Although influenced by the latter regulation, the Ordinance of 1280 was considerably more detailed and differed by covering admission, by the specificity of its conduct prohibitions, and by the variability of its remedies. Its formalization of the regulation of admission and its enumeration of various forms of prohibited misconduct characterize it 258. Id. at 110;Birks,supra note 8,at 42,47. 259. See Brand,Origins,supra note 8, as the first general code of professional ethics. Thus, it is probably the earliest antecedent of modern professional regulation. 260 The Ordinance was significant for a different and interesting reason. The monopoly creating admission controls may be the first example of the legal profession's influence on regulation to restrict competition. 261 The issue is whether this regulation was a legitimate effort by city officials to advance public welfare or the profession's effort to advance its economic self-interest. The evidence seems to support both conclusions. The need to assure competency indicated that the regulation of admission was a legitimate governmental response to protect clients and the judicial system. Thus, to some extent, a public interest rationale supported the Ordinance.

On the other hand, there was evidence for the anticompetitive, self-interest theory as well. The language of the Ordinance provided the clearest evidence. It stated that restrictions on admission were "at the request of serjeants and countors who understood their profession." They believed that the profession's dignity was threatened as the Ordinance recited that practice by the incompetent lawyers "greatly aggrieved" the former." The difficulty in justifying the rigid market division between serjeants, attorneys, and essoiners was additional evidence of anticompetitive motive. Thus, although the evidence does not support treating the Ordinance as solely a product of 260. Its explicit preservation of a right of lay representation differed from modern admission regulation. To that extent, the Ordinance's admission controls neither created the same monopoly as modern regulation nor provided a basis for the latter's longstanding, dubious attack on the unauthorized practice of law.

261. See Morgan, supra note 2; Gellhorn, supra note 1. Cf. Rose, supra note 1.

professional self-interest, it cannot be eliminated and should be considered a factor. 262 To use the concepts of modern regulatory theory, the Ordinance may be the first example of rent seeking by lawyers. 263 Finally, the Ordinance was significant as it provided the link to the next regulation.

d.

Significance. Chapter 29 was a very significant regulation of the medieval legal profession. First, due to its interpretation and application, it emerged as broad prohibition on lawyer misconduct. Second, its imposition of imprisonment and disbarment as remedies were novel. 226 Third, its timing was important, coinciding with the profession's emergence. The felt need for its adoption and its distinctive remedies were in some ways the most vivid evidence of the profession's new existence. Fourth, as indicated by the climate of opinion and the 1274 Inquisition, Chapter 29 was part of a broad, general legal reform and the product of strong public opinion regarding lawyers and the legal system. Thus, it was the first significant regulation of the legal profession despite earlier regulatory statutes 227 and the early 13th century use of inherent judicial power to fine lawyers for poor pleading and other misconduct. 228 Coke perhaps stands alone in doubting Chapter 29's significance. He felt the prohibited conduct was already "against the common law, and therefore this act was made 226.

Pollock and Maitland opined that use of short prison terms by Chapter 29 and the other provisions of Statute of Westminster I was a broad, important change in the law under Edward I regarding the use of imprisonment. See Ralph B. Pugh, Imprisonment in Medieval England 24-47 (1968); II Pollock & Maitland, supra note 9, at 517 & n.2. 227.

Courts had experienced problems with serjeants acting as judges in cases in which they earlier had been pleaders for litigants. A serjeant, John Bucuinte, was fined for such conduct in 1220 and in 1244 the City of London enacted legislation prohibiting such conduct. In addition, in 1259, London enacted legislation prohibiting serjeants to act in return for a share of the land in issue. See Brand,Origins,supra note 8,[53][54]67. 228. See e.g, Brand, Origins, supra note 8, at 47-48, 53-54, 55-56; Baker, The Order of Serjeants at Law, supra note 8, at 9; Palmer, supra note 8, at 133-34 II Holdsworth, supra note 9, at 251; Plucknett, supra note 40, at 155. Brand and Palmer discussed several cases after Chapter 29's adoption where the court suspended a pleader for unacceptable conduct. See Brand,supra,Palmer,supra, Although they both implied that the punishment was pursuant to Chapter 29, it is not explicit and may have been pursuant to inherent judicial control of pleaders. In any event, Palmer stated that earlier 13th century courts did not suspend pleaders and that there was a serious question regarding their legal authority to do so. Id. at 133. in affirmance of the common law; only it added a greater punishment." 229 Given Coke's view that the common law was "the absolute perfection of reason" and that many statutes only affirmed the common law and added new remedies, 230 his views are not surprising. It seems, however, that he understated the significance of Chapter 29 for the additional remedies were very important and it is doubtful whether all the conduct was both prohibited and remediable under the common law. 231 Finally, Chapter 29 is probably the most important early professional regulation as it created the foundation for the subsequent regulation.

Significance. The Ordinance of 1292 was a significant event in the history of the legal profession's regulation. As Brand said, "most legal historians have 282. Brand and Holdsworth have said that assistance by friends and relatives may have continued. See Brand,Origins,supra note 8,at 117; II Holdsworth, supra note 9, at 315 n.1. Also the latter did not think that the Ordinance eliminated the power of the King to appoint an attorney by writ. Id. at 317. 283. See Palmer, supra note 8, at 138-39 ("profession was far larger than admittedly large body of common attorneys"). Brand has discovered the continuing appointment of individuals who do not appear to be professionals (607 in one suit!), including litigants' relatives such as husbands and wives. See Brand, Origins, supra note 8, at 74;Brand March 28, 1997 letter, supra note 238. 284. See II Holdsworth, supra note 9, at 317; Plucknett, The Legal Profession in History, supra note 74, at 336; I Pollock & Maitland, supra note 9, at 216. Brand believed, however, neither the King nor the justices attempted to exclude nonadmitted attorneys from practicing nor to punish them for doing so. See Brand, Origins, supra note 8, at 116. In reviewing the development of the Irish legal profession, Brand noted that there was no attempt to restrict the number of attorneys, as was the case with the Ordinance of 1292. He has speculated that there was more free competition in Ireland. See Brand,supra note 11,at 38. 285. Holdsworth felt that "the immediate effect of the Ordinance was the making of more systematic arrangements for their legal education." He also believed that the justices delegated the duty to choose those who would be permitted to practice to the apprentices' educators. See II Holdsworth, supra note 9, at 315. Plucknett stated that the Ordinance had a greater effect on legal education, putting it under the control of the courts and perhaps marking the beginning of real legal education. See Plucknett, A Concise History of the Common Law, supra note 9, at 218-219. Brand disagreed with Plucknett's first assertion. See Brand,Origins,supra note 8,at 116. See also Curzon,supra note 55,at 202. generally taken it to mark a major stage in the development of the profession." 286 A number of reasons support this conclusion. It formally recognized professional attorneys as a separate and important part of the legal profession and focussed on the need to control their competence as the 1275 Statute of Westminster I had done with serjeants. 287 As such, it may have denoted the beginning of the longstanding notion of attorneys as officers of the court. 288 Moreover, the integrity requirement, which it included in addition to competence as an admission standard, resembled the "good moral character" criterion so common to modern admission controls. It also recognized apprentices as a distinct part of the profession. In so doing, some have felt that the Ordinance's adoption was the initial development leading to the Inns of Court and present day barristers. 289 In focusing on attorneys and apprentices and embodying regulation of admission to Common Bench in a statute, the Ordinance was an extension of regulation beyond that in the Statute of 286. See Brand,Origins,supra note 8,at 116. He was referring to Maitland and Plucknett. Holdsworth, Sayles, Cohen, Birks, and Kirk would have probably agreed. These historians' discussion of the Ordinance has been noted. See supra notes 266-85. Although Brand treated the Ordinance as significant, he seemed to think that these others may have overstated its significance although he said it "sounds impressive." See Brand, Origins, supra note 8, at 116. In focusing attention on attorneys and apprentices rather than serjeants, Cohen felt it was "a natural process" of turning to the "small fry" after dealing with the "bigwigs" in 1275. See Cohen, A History of the English Bar, supra note 8, at 314-15. 287. See Brand, supra note 9, at 15; Palmer, supra note 8, at 138-39 & n.71.

233.

The power extended to controlling the appearance of essoiners as well. It is interesting that this power was given to the Mayor and other officials rather than the court. Although the Ordinance controlled the admission of an individual attorney to professional practice, perhaps the practice regarding the admission of attorneys in particular cases provided some insight. In 1268, the London Charter recognized the rights of the city's citizens to appear in court through an attorney. See supra note 41 and accompanying text. During the 1221 eyre of Henry III, the king asked the citizens of London "How is an attorney to be admitted at the Hustings Court?" The answer was that the citizens had special legal privileges, noting the limited ability of noncitizens to use an attorney, which required a royal writ. The answer said that the alderman might record the appointment of attorneys in any of the city courts as the judges did in the superior courts. See Christian, supra note 43, at 13 (citing the Liber Albus). In addition, the city officials may have delegated the exercise of authority in particular cases to the judges of the London courts. 234. Several commentators stated that serjeants were required at admission to swear that they would "exercise their 'mystery' faithfully." See Harding, England in the Thirteenth Century, supra note 9, at 172; Baker, The Order of Serjeants at Law, supra note 8, at 12. 235.

Although there was no express prohibition on attorneys appearing as countors, it is questionable whether this remaining piece of the ban would be intentionally omitted. Thus, the Ordinance should probably be read also to preclude attorneys from being counters. Both contemporary and later commentators have understood as such. See II Holdsworth, supra note 9, at 317; Sayles, I Select Cases in the Court of the King's Bench Under Edward I, supra note 9, at cvii; The Mirror of the Justices, supra note 19, at 88. The penalty for violating this prohibition was unclear. First, the penalty was expressly only for attorneys acting as essoiners and vice-versa. No penalty was mentioned for the other prohibitions, which appeared Lawyer conduct was the subject of numerous prohibitions on specific forms of misconduct. These prohibitions, which applied to serjeants and attorneys, fell into two separate categories, those that regulated conduct in or affecting the court and those regarding the client of the serjeant or attorney. 236 With regard to the former, the Ordinance contained three types of prohibitions. First, it defined the function of a countor ("standing, to plead and count counts and make proffers at the bar") and prohibited unprofessional pleading ("without baseness, and without reproach and foul words, and without slandering any man"). Second, the Ordinance regulated the lawyer's physical location in court ("nor . . . go further in front beyond the bar or seat where their sitting is, or sit near the bailiff"). 237 Third, several prohibitions protected the court's integrity ("nor . . . counterplead or gainsay the records or the judgments" or "gainsay the judgments of the Hustings or to go about procuring how to defeat the acts and the awards of the community"). 238 earlier in the Ordinance. Perhaps, given the nature of medieval statutes, the penalty attached to all these restrictions. Second, the specific penalty was not clear due to the language, "penalty as aforesaid." The previously mentioned penalty was imprisonment for a year and a day. It seems unlikely that such a penalty, the Ordinance's harshest, would have been imposed for this violation. 236. Serjeants, although not attorneys, were required to take an oath to uphold the provisions of the Ordinance. See Brand, supra note 8, at 122. The possible rationale for the distinction between serjeants and attorneys is discussed below. See infra note 257. 237. It is unclear whether the prohibition on "sit[ting] near the bailiff , for delivering pleas and judgments" meant only that a lawyer could not sit there while they were being rendered or never could sit there because it would interfere with the judicial function. In context, the latter interpretation seems more likely. There was an exception if the lawyer was called to consult by the "principal bailiff," in which case the lawyer "shall make oath that he will support neither side." 238.

With regard to judgments, if there were an error, "in accordance with the law and usage of the city" the lawyer could complain to the Mayor, who "will address the error." Countors had to take an oath not to contradict judgments nor to engage in procuring the defeat of the various official actions. Paul Brand has pointed out that "record" probably referred to an oral summary of the pleadings and preliminary judgment by the judge and not a written record. Letter of Paul Brand to Jonathan Rose (March 28, 1997, on file with The Ordinance contained two types of prohibitions on lawyer misconduct injurious to clients. First, two different forms of conflict of interest were prohibited.

Representing both sides simultaneously, ambidexterity as it was known medievally, was banned ("No countor is . . . to take pay from both parties in any action)." 239 Representing a client adverse to a former client in the same matter also seemed to be prohibited ("leaves his client and leagues himself with the other party"). Second, there were several competence requirements and prohibitions on incompetence and negligence ("well and lawfully he shall exercise his profession," "takes money and abandons his client," and "by their default or by their negligence lose the actions" of their clients). Although not fitting exactly within the regulations governing court conduct and misconduct affecting clients, there was also a prohibition on champerty and maintenance ("undertake a suit to be a partner in such suit," "partake in the demand").

The penalties for the various violations varied. Short suspensions and fines were imposed for the more minor violations involving the court's integrity. 240 For the more serious of such violations, the penalty was permanent suspension, 241 which was also the penalty for champerty and maintenance. The penalty for violating the simultaneous Jonathan Rose (hereinafter "Brand March 28, 1997 letter"). 239. Christian stated that serjeants "were often accused of being 'ambidexters' and taking fees from both sides." See Christian, supra note 8, at 14. 240.

For counterpleading or contradicting judgments, the penalty was a half mark fine or eight days suspension in the sheriffs courts and suspension for three sessions of the Hustings in those courts. Although it is somewhat confusing, there is also a prohibition on further counting in the former courts. 241. This penalty applied to the mandate not to engage in procuring the defeat of the judgments (nullification by an outside authority) in which case the lawyer was "held as perjured forever." conflict of interest prohibition was suspension for three years. For abandoning the client and representing the opponent adverse to the former client in the same matter or faulting the client by failing to act, the Ordinance provided that the lawyer shall "return twofold and not be heard against the client in that plea." 242 Finally, if an attorney lost a client's case because of negligence or default, the penalty was imprisonment "according to the statute of the King." 243 b.

Historical Background and Objectives. The London Ordinance of 1280 was probably a product of two historical influences. Most important, there had been a long history of unhappiness with the appearance of lawyers in the London courts, concern with both the number of lawyers and their conduct. With regard to the former concern, the legislation of 1259 was significant as Henry III reaffirmed the right of the London citizens to plead on their own, with some relaxation of technical pleading requirements. The intent of this legislation, which reflected the abundance of lawyers and their widespread usage, was to underscore that using a serjeant was not necessary. 244 Pollock and Maitland said "the king was compelled to concede" this right as "lawyers had 242.

Although somewhat unclear, this probably meant that the lawyer must pay double damages to the client (twice the client's advance) and not be heard against that client in that case Brand March 28, 1997 letter, supra note 238. Medieval statutes commonly included provisions requiring double or treble damages. See rapidly taken possession of the civic courts in London." 245 The 1259 legislation and a 1244 statute also evidenced displeasure with lawyer conduct. 246 Second, the enactment of Chapter 29 of the Statute of Westminster I only five years earlier probably influenced the adoption of the Ordinance. It was not surprising that London adopted a measure regulating the legal profession, given the objectives and background of the earlier statute, the geographical proximity of the London and royal courts, and the probable common lawyer and client involvement with both courts. 247 In fact, the Ordinance incorporated Chapter 29 as the punishment for a negligent or defaulting attorney. 248 Thus, the adoption of the Ordinance reflected a continuation of the concern with lawyer misconduct that prompted the Statute of Westminster I 249 and its 245. See I Pollock & Maitland, supra note 9, at 215. They also suggested that in London, "there had been an unusually rapid development of a professional caste." Id. The London Charter of 1268 regranted the London citizens the right to use lawyers. See supra note 41 and accompanying text. The 1264 legislation reflected further concern with ubiquity of serjeants, prohibiting them from appearing as essoiners. See Brand, Origins, supra note 8, at 67. 246.

The former prohibited a form of champerty involving the land at issue in the litigation and the latter prohibited serjeants from making or giving of judgments in cases in which they had acted as serjeants. See Brand, Origins, supra note 8, at 67. 247. Several commentators have suggested that there was a relationship between these two initial regulations. Sayles believed that Chapter 29 was necessary to control lawyers, but added that "so wide were the openings for chicanery on their part that they were the constant subject of disciplinary measures," citing the Ordinance of 1280. See Sayles, I Select Cases in the King's Bench Under Edward I, supra note 9, at civ-cv & nn.10,1. Cohen stated the two regulations must be read together. See Cohen, supra note 8, at 235. See also Harding, supra note 9, at 172. Baker suggested a broader possible influence, stating that the Ordinance of 1280 was similar to a 1274 Paris Ordinance that required French advocates to take an oath to plead only just causes and not to demand excessive fees. See Baker, The Order of Serjeants at Law, supra note 8, at 12. 248. See Brand, Origins, supra note 8, at 137; Sayles, I Select Cases in the Court of the King's Bench Under Edward I, supra note 9, at cvi n.8. Brand noted that the inclusion of this language is perplexing as it suggested that Chapter 29 applied in the London courts and to negligence as a form of deceit and collusion. Both conclusions conflict with the language of Chapter 29. See Brand, Origins, supra note 8, at 211 n. 18. 249.

Although one should not ignore the influence of Chapter 29, the regulation of serjeants' conduct as evidenced by the 1244, 1259, and 1264 legislation discussed above preceded the 1275 adoption of the Statute of Westminster I. background provides a basis for understanding the Ordinance's objectives of controlling the number of lawyers and regulating lawyer misconduct.

The Ordinance itself spelled out these objectives in considerable detail. Regarding the desire to limit the number of attorneys and to regulate their admission, the Ordinance noted that anyone could decide to be a pleader ("everyone made himself a countor at his own will") by inadequate evaluation of competence ("each of them the judge of others"). Incompetent pleaders were practicing ("some who made themselves countors, who did not understand their profession, nor had learnt it;" "did not know how to speak in proper language"), who injured their clients and whose incompetence was "to the great scandal of the courts . . . ." Thus, the Ordinance provided that the mayor should control admission and only admit competent lawyers to protect those whose right was intercepted" by the incompetent lawyers. The Ordinance also indicated that the objective of insuring competence required regulation of conduct as well as admission ("through their [the lawyers] ignorance [plaintiffs and defendants] lost their pleas and their suits"). Regarding the prohibitions on the specified misconduct, these regulations were necessary as lawyers conduct caused "great scandal" to the courts and "the serjeants and countors who understood their profession . . . felt themselves greatly aggrieved." Thus, in language like the preamble of a modern statute, the Ordinance spelled out its objectives and rationales.

Although none of the Ordinance's recitals revealed the rationale for restricting practice to only one type of lawyer, the 1264 legislation prohibiting serjeants from acting as essoiners reflected the historical concern with this practice and was probably the root of the Ordinance's broader market division. One possible rationale --that the functions of serjeant, attorney, and essoiner were sufficiently distinct and specialized so that one individual could not competently perform as more than one type of lawyer --seems unlikely although consistent with the Ordinance's more general competency objective. It seems unlikely that all serjeants and attorneys were incompetent to perform the other's function; and it was not always easy to differentiate the separate functions of attorneys and essoiners. 250 Moreover, individuals could voluntarily specialize and confine their practice to one function, as many did; 251 and clients were free and competent to choose their serjeants, attorneys, and pleaders. Unlike modern legal specialization that permits holding oneself out as an expert, the key was the Ordinance's prohibition on acting in multiple functions. Thus, the irrestible conclusion is that the rationale was to restrict competition by dividing the market among different types of lawyers to curb the natural desire of a lawyer, once retained, to perform all functions. 252 As it restricted serjeants and 250.

See Sayles, I Select Cases in the Court of the King's Bench, supra note 9, at ciii & n.7.

251.

According to Turner, de facto specialization arose. He stated that serjeants normally did not practice as attorneys and attorneys never became serjeants, suggesting different training as the explanation. See Turner, supra note 117, at xvii. Apprentices learning to be serjeants practiced as attorneys during their education. See supra notes 77-78 and accompanying text.

252.

See, e.g., Sayles, I Select Cases in the Court of the King's Bench Under Edward I, supra note 9, at cvii. Birks believed that attorneys had nothing to lose by this restriction as the numbers of serjeants and attorneys were fixed, but would have benefitted as otherwise the more learned reputation of serjeants would have attracted clients from attorneys. See Birks, supra note 8, at 47. Brand has offered a different explanation. He believes that the punishment clause is to prevent attorneys from essoining themselves by using a fictitious name that deceived the court (see supra note 97a) and London courts took a stricter view on this than the royal courts. He also felt that this clause was intended to discourage the use of professional assessors. See Brand March 28, 1997 letter, supra note 238. attorneys, the Ordinance was consistent with the medieval bifurcation of the profession and perhaps just a formal recognition of the two branches that had evolved by the end of the 13th century. 253 Nevertheless, its extension to essoiners was an expansion; and its inclusion in the Ordinance was not consistent with medieval regulation, which left this matter to judicial control and did not embody it in explicit legislative prohibitions. 254 Over the years, commentators have echoed the objectives reflected in the Ordinance's background and expressed language. 255 These objectives provided a framework for its application.

3.

The Ordinance of 1292 a. The Ordinance. The Ordinance of 1292 was simpler and narrower than the London Ordinance of 1280, dealing solely with the admission of attorneys and 262. The Ordinance's treatment of assessors reinforced this conclusion. It prohibited serjeants and attorneys from acting as assessors and perhaps even discouraged the use of professional assessors. Although the commentators are not unanimous, the weight of authority supports the legal profession's economic self-interest as an influence on the adoption of the Ordinance. Baker believed that it was in the profession's interest "to keep out the inexperienced and the negligent, who would bring their calling into disrepute." See Baker, The Order of Serjeants at Law, supra 8, at 12. Birks stated, "the motive . . . was mainly selfish, being no more than an application of the closed shop principle." Birks, supra note 8, at 42. He believed that attorneys had much to gain from the Ordinance's prohibition on serjeants acting as attorneys as the former, given their more learned reputation, could take clients away from the latter. Id. at 47. Roscoe felt that the market division arose from the "same spirit of exclusive trading which produced the various gilds for commercial purposes. . . ." See Roscoe, supra note 9, at 24. Cohen said that "reputable lawyers approved of this reform." See Cohen, A History of the Bar, supra note 8, at 258. Brand does not view professional selfinterest as the ordinance's sole explanation. He stated that the Ordinance was "the product of external pressure to raise standards, rather than any campaign by those serjeants to secure such a monopoly." See Brand, The Making of the Common Law, supra 9, at 20. With regard to its language, he stated that the cited "'request' was a mere formality and that the real impulse came from elsewhere." See Brand, Origins, supra note 8, at 110. Further, he is skeptical regarding the serjeant's influence on the disciplinary clauses as he feels these clauses dealt with several matters of little interest to serjeants. See Brand March 28, 1997 letter, supra note 238. Also he has offered a different explanation for market division provisions. See supra note 252. 263. Rent seeking, an aspect of economics known as public choice theory, is a theory of regulation premised on the influence of interest groups on the political process to transfer wealth to themselves from other groups. More generally, public choice theory offers the use of market models to explain political behavior. See, e.g., Daniel Farber & Phillip Frickey, Law and Public Choice 3-37 (1991); Dennis Mueller, Public Choice II 1-6, 229-46 (1989); Jonathan Macey, Public Choice: The Theory of the Firm and the Theory of Market Exchange, 74 Cornell L. Rev. 43 (1988); Richard Posner, The Social Costs of Monopoly and Regulation, 83 J. Pol. Econ. 807 (1975); Samuel Peltzman, Toward A More General Theory of Regulation, 19 J. Law & Econ. 211 (1976); George Stigler, The Theory of Regulation, 2 Bell J. Econ. & Management Sci. 3 (1971). Although rent seeking is a modern concept, it has been applied to the conduct of 16th century lawyers. See Anderson & Tollison, supra note 2.

Ordinance 33 Henry VI, Chapter 7 (1455) This Ordinance was directed exclusively at controlling attorney admission in the counties of Norfolk and Suffolk, and the city of Norwich. 363 It limited admission to six attorneys each in the first two and two in Norwich. It provided that "the said fourteen attorneys shall be elected and admitted by the two Chief Justices . . . of the most sufficient and best instruction, by their discretion" and that the judicial admission of all not clear. It did provide for disbarment of an attorney "found in any default of record, or otherwise." Judging this prohibition's meaning and breath, however, is difficult. Given the expansive interpretation of medieval statutes, one might regard this language as creating a broad power to police attorney misconduct. In 1442, an attorney was disbarred under this statute subsequent to imprisonment for contempt. See John C. Fox, The King v. Almon I, supra note 180, at 194 n.1. 361. See Brooks, supra note 8, at 20-21. Its language was not limited to the Common Bench as with the Ordinance of 1292 and it expressly gave the Exchequer Treasurer and Barons discretion to implement the regulation in their court. 4 Henry IV, ch. 29 (1402), II Statutes of the Realm, supra note 348, at 139. 362. See Christian, supra note 8, at 19; III Blackstone, supra note 9, at 26. Christian stated that this statute may have been the origin of the "Roll of Attorneys." See Christian, supra. 363. 33 Henry VI, ch. 7 (1455), II Statutes of the Realm 377-78 (1810, reprinted 1963). The Ordinance stated that the Justices of Peace could "inquire in their sessions, or any other manner lawfully proved . . . ." With regard to the 20 pound fine, the Ordinance split the money evenly between the king and "his use which for the same will sue," presumably the complainant or a victim; and it created an action of debt for "he that therefore will sue." Id. Christian stated the Ordinance's inclusion in the statutory compilation indicated that the judges had no objection. See Christian, supra note 8, at 30. A complete text of Chapter 7 is attached as Appendix VIII. attorneys "above the said number in the said Counties, shall be void, and of no authority nor record." It empowered the Justices of the Peace to inquire "if any person or persons usurp or presume to be attorneys in the Courts of Record in the said counties or city otherwise than before is specified;" and if they "so presume [and were] lawfully convict [ed]," it imposed a 20 pound fine for each occasion. Finally, it provided that it would take effect next Easter, "if the same Ordinance seem reasonable to the Justices."

With regard to its background, the 1455 Ordinance was at the end of a series of statutes and petitions directed at lawyers. Several statutes, although not broad professional regulations, were directed at specific types of misconduct. Some were concerned with insuring that litigants' attorneys did not interfere with the administration of justice by excluding them from otherwise participating in the justice system. 364 For example, a 1411 statute prohibited lawyers from acting as justices in local courts; 365 and a 1439 statute punished attorneys for acting without recording their warrants of attorney. 366

apprentices to the Common Bench. Promulgated by Edward I, it directed Chief Justice

Mettingham and the other justices to regulate the number of such attorneys admitted to practice before the Common Bench and to establish quotas for each County ("ordain a certain number of these from each County"). The Ordinance stated that the King and his Council believed that 140 ("seven times twenty") would be sufficient, but left it to the justices' discretion to appoint more or less if appropriate. Only those attorneys admitted pursuant to the judicially determined quota could represent clients. The Ordinance created an admission standard of competency and integrity ("the better and more respectable and more willing to learn," "those . . . of greatest value to the court and to the people"). 264 b.

Historical Background and Objectives. The background of the Ordinance of 1292 has several aspects. First, the judicial scandal of 1289 probably provided some impetus for further regulation of lawyers. Although that scandal and the subsequent inquest focussed on judicial misconduct, 265 lawyer involvement was probable, likely influencing the Ordinance's enactment. 266 Closely related was the influence of 264. I Rotuli Parliamentorum 84, no. 22, 20 Edw. I (1292)(1767 In Edward I's investigation due to the 1289 scandal, Sayles stated that the "record does not contain accusations of misconduct against attorneys and pleaders, though it can be said without hesitation that bribery and chicanery must have been at least as rife among them." He discussed two cases involving alteration of documents, forgery, and false writs by Peter of Luffenham and Roger of Langport. See supra note 220 and Appendix III. He believed that a separate investigation into lawyer misconduct, whose records no longer existed, was commenced and led to the enactment of the Ordinance of 1292. See Sayles, V Select Cases in the Court of the King's Bench Under Edward III, supra note 9, at lxii-lxiv. Kirk also believed that, like the investigation of judicial misconduct, the enactment of the Ordinance of 1292 was "part of the general substantial lawyer misconduct uncovered during the years preceding enactment. 267 Sayles said that its enactment was "in answer to a particular deterioration of conduct at a particular time and it cannot be understood in isolation, but must be related to the whole series of judicial inquiries during 1290-92." 268 Holdsworth felt that complaints against lawyers in the 1292 and 1293 Eyres revealed the need for the Ordinance. 269 More generally, the Ordinance should be viewed as building on the Statute of Westminster I and the London Ordinance of 1280. This background evidenced concern with the number of lawyers and their competence as well as a perception of extensive misconduct.

Thus, the Ordinance's objective was to regulate admission to eliminate these problems. 270 It reflected the view that limiting the number of lawyers was an effective cleaning-up process" commenced by Edward I after his 1289 return to England. See Kirk, supra Cohen believed Chief Justice de Mettingham was a very good choice to solve these problems as he would "understand 'the mischief of the statute' . . . and would know exactly where the forensic shoe pinched and bulged." See Cohen, The Origins of the Bar, supra note 8, at 67. A few commentators have suggested a very different, or at least additional, objective: that the Ordinance was actually intended to increase rather than reduce the number of attorneys by assuring sufficient attorneys in the King's Bench and responding to complaints of insufficient attorneys due to its mobile nature, which made it unattractive to lawyers who preferred staying at Westminster. See Kirk, supra note 8, at 7; Birks, supra note 8, at 38-39; Law & Magazine Rev., supra note 8, at 245-46. Cf. Cohen, A History of the Bar, supra note 8, at 281-85. The basis for this view seemed to be the Ordinance's language, "following the court," a possible reference to the mobility of the King's Bench. See Kirk, supra; A.R. Ingpen, The Middle Temple in Six Lectures on The Inns of Court and of Chancery 122-23 (1912). Sayles has cautioned against a literal translation of these words and has interpreted them to mean "in attendance," referring to the Common Bench not the King's Bench. See Sayles, V Select Cases in the Court of the King's Bench Under Edward III, supra note 9, at lxiii & n. 4. Ingpen also believed that the 140 attorneys and apprentices would be chosen from lawyers practicing in the county courts. The theory that the Ordinance was intended to increase the number of attorneys in the King's Bench seems unlikely for several reasons. It is inconsistent with the language of the Ordinance and the Writ. The way to reduce lawyer misconduct. After its adoption, Edward I issued a writ confirming the concerns and objectives revealed by this background. The writ recited concern with the "excessive number" of attorneys and their "deceit and malice," because of which, "many of our people [have] been troubled." 271 The King ordered Chief Justice Mettingham to provide the names of those appearing in violation of the Ordinance, so that King could impose an appropriate remedy.

Legal historians have emphasized this desire to reduce the number of lawyers.

Sayles suggested that rapid growth of professional attorneys necessitated the adoption of the Ordinance, as "some attempt had to be made to overhaul and regulate" the professional Common Bench attorneys. 272 Although inapplicable to serjeants, the Ordinance was also directed at apprentices, 273 those learning to be serjeants. The justices Ordinance controlled admission to the Common Bench, not the King's Bench. Finally, neither the background nor the bulk of commentators support it. Bolland offered a more refined variation. He believed that the Ordinance was intended to authorize the justices to designate apprentices, who were "equipped in matters of law and practice to be capable of practicing," and who could then appear in the King's Bench, although not in the Common Bench, to remedy the shortage of King's Bench serjeants. See Bolland, supra note 76, at 392-94. Although more plausible, this theory is neither consistent with the language of the Ordinance and the Writ nor the historical background. 271. Robert Palmer has reproduced the mandate. See Palmer, supra note 8, at 139 n.71. A complete text is attached as Appendix VI. It recited that it was issued on June 2, 1292, which was apparently in the parliamentary session subsequent to that in which the Ordinance was adopted. See Brand,Origins,supra note 8,at 209 n.68. In noting the Ordinance, Reeves stated the Edward I was "extremely careful" to insure that only qualified persons could practice in his courts. See Reeves, supra note 9, at 284. 272. Sayles, I Select Cases in the Court of the King's Bench Under Edward I, supra note 9, at ci. He felt that practice in the King's Bench presented few problems due to the smaller amount of litigation and its mobile nature. As a result, there was not "much scope for the hanger-on and the tyro . . . ." Id. The county quotas reflected the fact that the much of the business of many attorneys came from a single county. See Brand,Origins,supra note 8,at 75. 273. Blackstone said that the Ordinance was the first appointment of apprentices, the predecessors of barristers. See I Blackstone, supra note 9, at 23 n.s. Brand said that the Ordinance "was probably not intended to restrict practice solely to apprentices" and the reference to apprentices recognized that they were practicing as attorneys while learning. He believed that they were mentioned only as an attorney were to admit only those who were most capable and "most willing to learn." Plucknett said that this restriction of apprentices was necessary to control the "superabundance of law students." 274 c.

Application, Meaning and Effect. 275 Assessing the Ordinance's effectiveness is somewhat complicated, requiring the discussion of several possible effects. First, regarding its effect on competency, no evidence of its application in individual cases was discovered; and determining whether application restricted admission to more qualified attorneys and apprentices is difficult. The earlier study of lawyer misconduct did not show any decline in instances of misconduct following its adoption. 276 subgroup to insure their inclusion in the quotas and not "to control who became apprentices." See Brand,Origins,supra note 8,116. He feels that the subsequent writ's reference to attorneys only and the failure to mention a number of apprentices make the Ordinance's application to apprentices doubtful . Brand March 28, 1997 letter, supra note 238.Cohen, however stated that it was directly primarily at apprentices, before they had chosen whether to be serjeants or attorneys, and the reference to attorneys was added later, in the early 15th century. See Cohen, A History of the Bar, supra note 8, at 282-83. He cited nothing to support this assertion. Plucknett rejected this suggestion and stated that it was not supported by the original roll, which was accurately printed. See Plucknett, A Concise History of the Common Law, supra note 9, at 218.

274.

See Plucknett, supra note 74, at 338; Cohen, The Origins of the English Bar, supra note 8, at 67. 275.

Although certain aspects of the Ordinance are ambiguous, interpretative issues are not primary. Legal historians have disagreed about its objectives in ways that raise these issues. The disagreement over whether it was directed at the Court of Common Pleas or the King's Bench raised a question of meaning as did the difference of opinion regarding how it applied to apprentices. These issues have been aired sufficiently in the discussion of the Ordinance's objectives. See supra notes 270 and 274. In addition, it seemed inapplicable to serjeants despite Pollock and Maitland's statement that "this measure" put "both branches of the profession . . . under (57), there were 27 from 1276-1292 and 30 after 1292. Focusing on a somewhat narrower time frame, there were 23 cases in 1291-92 and 23 in 1293-1307. To the extent that these cases were a valid indication of the extent of lawyer misconduct, the study indicated no increase in lawyer competency after 1292.

Next was the Ordinance's impact on numbers. Clearly, admission was not restricted to 140 attorneys. Brand has documented that, at a minimum, 210 attorneys practiced in the Common Bench in 1300. 277 Thus, he and others have asserted that the Ordinance was ineffective. 278 However, this conclusion should be questioned. First, the number of 140 was just a suggestion of the King and his council and it was left to the justices's discretion to appoint more based on need. Perhaps, the justices appointed more, as some commentators indicated that more were needed. 279 Also, there is no way to know how many attorneys there would have been absent the Ordinance. Given the profession's rapid growth, 280 the number might have been greater absent the Ordinance. Finally, it may have taken time for numbers to stabilize. By 1480, the number of professional attorneys had dropped to 180, with at most 130 practicing in the Common Bench. 281 277. See Brand,Origins,supra note 8,at 75,116. 278. Id.; Kirk, supra note 8, at 7; Kirk, supra note 8, at 43; Cohen, A History of the Bar, supra note 8, at 283. Brand suggested that the 1294 outbreak of war with France, enforcement difficulty, and the difficulty of distinguishing professional and amateur attorneys may have explained the Ordinance's ineffectiveness. See Brand,Origins,supra note 8, As further evidence of the Ordinance's ineffectiveness, Brand has cited his failure to find any admission or disciplinary enforcement of the county quotas that were authorized by the Ordinance language. Brand March 28, 1997 letter, supra note 238. 279. See e.g. Palmer, supra note 8, at 139 n.71 ("many more in fact were needed"). There is no evidence of how the King and his Council estimated that 140 would be sufficient. 280.

The number of attorneys in the Common Bench had grown from 102 in 1280 to 210 in 1300. In 1300 there were 30 Common Bench serjeants although they had increased from about 12 during the same period. See Brand, Origins, supra note 8, at 70-76; Sayles, I Select Cases in the Court of the King's Bench Under Edward I, supra note 9, at ci. There were far fewer King's Bench attorneys. See Brand,supra,[77][78]; Birks, supra note 8, at 7-8. Harding estimated that there were 30 King's Bench attorneys in 1292. See Harding, A Social History of English Law, supra note 9, at 170. Brand stated that there were 26 in 1307. See Brand,supra,at 159. 281. See Baker, The Legal Profession and the Common Law, supra note 8, at 85. Baker, studying the 1450-1550 profession, estimated the following division of the 180 attorneys: Common Bench 130, King's Bench 100, of whom 50 also appeared in the Common Bench, Exchequer 30, and 30 who were officials in one of the three courts but also practiced as an attorney there. He said that this number, 180 did "not greatly exceed the ideal maximum fixed in 1292." Id. In addition, the Ordinance gave those designated attorneys the exclusive right to appear in the Common Bench. It expressly provided that other attorneys could not do so ("others not"). Moreover, unlike the London Ordinance of 1280, it did not preserve the right of lay representation. 282 Nevertheless, the Ordinance may not have eliminated appearances by existing nonprofessional attorneys. 283 Some commentators believed that it created a monopoly for the admitted attorneys. 284 By including apprentices, the Ordinance may also have had a positive effect on their education. 285 For all these reasons, it seems inaccurate to conclude that the Ordinance was wholly ineffective and fair to state that it had some important effects.

288.

See II Holdsworth, supra note 9, at 317-18. Holdsworth attributed this notion to the fact that the judges directly admitted attorneys. Thus, barristers were not considered officers of the court, but over time this notion became deeply entrenched as to attorneys. See VI Holdsworth, supra 9, at 433-35. As officers of the court, 15th century paintings showed attorneys dressed like clerks and other court officers. See Birks,supra note 8,at 37. 289. See Daniell, supra note 8, at 53; II Holdsworth, supra note 9, at 315, 493; Potter, Historical Introduction to English Law and Its Institutions 83 (1962); Ingpen, supra note 270, at 122-24; Roscoe, supra note 9, at 230. In addition to identifying apprentices as a professional group, Holdsworth believed that the Ordinance was the beginning of a system in which "the judges entrusted those were responsible for giving this education with duty of selecting those whowere privileged to practise in courts. " See Holdsworth, supra. Westminster I in both respects and beyond the London Ordinance of 1280 as to the former --a further step toward modern regulation. Moreover, to the extent that it restricted admission and created monopoly privileges, it may be another very early example of rent seeking by lawyers. 290 In terms of this article, the Ordinance of 1292 had another significance. Unlike the earlier two regulations, it focussed explicitly for the first time on the desire to limit the number of attorneys, apart from their competence, and the perceived connection between too many lawyers and lawyer misconduct and excessive litigation. Brand stated that "the underlying theory seemed to be that excessive numbers of attorneys lead to unnecessary litigation, as attorneys tried to make a living not by serving a pre-existing demand for their services by creating it themselves." He also stated that "excessive numbers meant that some attorneys could only survive by 'fraud and malice.'" 291 Coke, writing 350 years earlier, said with reference to the Ordinance "it was thought good to decrease the number of attorneys, finding them to be the causes of multiplication of suits . . . . to great inconvenience in the common-wealth and to the no small blemish and discredit of that 290.

Holdsworth said professional attorneys on the common law court staffs may have drafted the Ordinance. See II Holdsworth, supra note 9, at 317. As with the London Ordinance of 1280, Brand saw external influence, "the concern of the king and council with low standards of existing attorneys," not lawyer self-interest, as the impetus for the Ordinance. See Brand,supra note 9,at 20. 291. See Brand,Origins,supra note 8,at 115,209 n.73; Brooks, supra note 8, at 19-20. Brand felt that the second theory was "less clear." In 1896, Christian noted this concern, stating that the "growth in number of attorneys soon attracted the notice of Parliament, which then and long afterwards chose to regard their existence as inimical to the commonweal, and endeavored in various ways to check their increase. In 1292, the first such attempt was made . . . ." See Christian, supra note 8, at 15. ancient and necessary vocation." 292 4. Other Statutes and Discipline. There were two other types of statutes that related to the regulation of lawyers. One group, although not specifically directed at lawyers, was the prohibitions against champerty, maintenance, and barratry. Although earlier prohibitions existed, the statutes during the reign of Edward I mark the beginning of the history of this conduct as a criminal and civil offense, with the Statute of Westminster I generally viewed as the first to make it a criminal offense. 293 As discussed above, that statute had several sections dealing with this conduct. Chapter 33 prohibited maintenance by barretors and was the most likely directed at professional lawyers 294 and 292. I Coke, The Second Institute of the Laws of England, supra note 9, at 250. Although Coke did not explicitly mention the Ordinance, the marginalia indicated that it was included in his reference to the action taken "in divers parliaments." Id. 293. See III Holdsworth, supra note 9, at 395-96. Prior to this statute, London had prohibited a limited form of champerty in 1244 (see supra note 246 and accompanying text) and Bracton mentioned champerty in discussing the articles of the Eyre. See Bracton, supra note 21, at 332. Not surprisingly, given his adulation of the common law, Coke believed that these offenses were actionable at common law. See Coke, II Coke on Littleton, supra note 85, at 368a & b. Holdsworth and Sayles disagreed. See III Holdsworth, supra, at 396; Sayles, III Select Cases in the Court of the King's Bench, supra note 144, at lv. Holdsworth discussed the background of these offenses. He pointed out that champerty emerged first although it became known as an aggravated form of maintenance, which became a term of art in Edward I's statutes. See Holdsworth, supra, at 395-99. Blackstone discussed the nature and interrelation of barratry, champerty, and maintenance. He said that a lawyer guilty of barretry ought to be disbarred and that champerty had antecedents in Roman law. See IV Blackstone, supra note 9, at 133-35. For an extensive treatment of the history and development of these offenses, see Baker, Solicitors and the Law of Maintenance 1590-1640 in The Legal Profession and the Common Law, supra note 8, at 125-50; Percy Winfield, The History of Maintenance and Champerty, 35 Law Quar. Rev. 50 (1919). 294. See 3 Edward I (1275), ch. 33, I Statutes of the Realm 31-35. Chapter 33's first clause directed that no sheriff allow any "barretors" to "maintain" cases in the county courts. Brand suggested that if "baretour" was intended as a "pejorative term for professional lawyers in general" rather than only "dishonest lawyers," the statute may have been an attempt to exclude professional lawyers from the county courts completely. See Brand, Origins, supra note 8, at 121. Holdsworth stated the Statute of Merton's adoption (see supra note 40 and accompanying text), authorizing the use of attorneys in the county courts, led to the adoption of Chapter 33. See III Holdsworth, supra note 9, at 396-97.

Chapters 18, 25, and 28 may also have had some applicability to lawyers. 295 Subsequent statutes during the reign were also directed at this conduct. The Statute of Conspirators of 1292, the related, broader Ordinance of Conspirators of 1293, and the 1305 Ordinance of Conspirators prohibited false litigation and champerty. 296 The Articuli super Cartas of 1300 also proscribed champerty although explicitly permitting lawyers to be paid for their services. 297 Finally, the Statute of Westminster II, Chapter 49 prohibited champerty by all royal officers. 298

295.

See 3 (1763). Sayles stated that no evidence existed that this "statute," or ordinance as sometimes called, was ever enforced (id.) and Brand felt that it may have been a draft that was copied into the statute books. The 1293 Ordinance was a broader prohibition, defined champerty, and provided no specific punishment leaving it probably to judicial discretion. Its enactment marked the beginning of a large influx of cases in the royal courts. See Brand,supra,at 121; Sayles, supra, at lix. The 1305 Ordinance defined champerty. The development of champerty and maintenance offenses was intertwined with that of conspiracy. See III Holdsworth, supra note 9, at 395-44; Sayles, supra, at liv-lxxi; Percy Winfield, The History of Conspiracy and Abuse of Legal Procedure 131 (1921). 297. 28 Edw. I, ch. 11 (1300), I Statutes of the Realm 139 (1810, reprinted 1963). This statute enacted a general prohibition on champerty, stating that it was made necessary by limitation of the Statute of Westminster I, ch. 25 to royal officials. Brand disagreed. See Brand, Origins, supra note 8, at 121. According to Holdsworth, this general prohibition made a definition of champerty necessary as it was a new term of art; the 1305 Ordinance of Conspirators supplied that definition. See III Holdsworth, supra note 9, at 397; supra note 297. Baker noted that payment or a retainer were necessary to avoid the charge of maintenance. See Baker, The Legal Profession and the Common Law, supra 8, at 101, 106. Holdsworth stated that pleaders were generally exempted from the law of maintenance when appearing for client, evidencing the growth of the profession. See II Holdsworth, supra note 9, at 313. 298. 13 Edw. I, ch. 49 (1285), I Statutes of the Realm 95 (1810, reprinted 1963). The statute listed a number of royal officers, including the Chancellor. This prohibition was the first to use the term, "champerty" expressly. See III Holdsworth, supra note 9, at 397. The discipline additional to that imposed under the regulations discussed above was probably pursuant to the inherent judicial authority over lawyers. Although judges fined ("amerced") lawyers prior to the passage of these statutes, 302 judicial, nonstatutory punishment of lawyers likely continued after their passage. 303 Discipline of lawyers also 299. See 3 Edw. I, chs. 42-44 (1275), I Statutes of the Realm 37 (1810, reprinted 1963); 6 Edw. I, ch. 10, I Statutes of the Realm 49 (1810, reprinted 1963); 13 Edw. I, chs. 12, 17, 27, 28 (1285), I Statutes of the Realm 81-82, 85 (1810Realm 81-82, 85 ( , reprinted 1963; Hengham, supra note 29, at lxiii. Particular problems occurred if there were multiple defendants as they would cast essoins seriatim ("fourcher"); this practice was eliminated by statute. See Plucknett, A Concise History of the Common Law, supra note 9, at 384-85 & n.1; see supra note 53 and accompanying text. 300. See I Coke, The Second Institute of the Laws of England, supra note 9, at 239-46; IV Fleta, supra note 23, at 152. Also, the Statute of Gloucester contained a provision that authorized the use of attorneys to insure that their presence accelerated, not delayed, litigation. 6 Edw. I, ch. 8 (1278), I Statutes of the Realm 48 (1810, reprinted 1963). See Birks, supra note 8, at 20; Hengham, supra note 29, at lxiii; Cohen, A History of the English Bar, supra note 8, at 302; Coke, I The Second Institute of the Laws of England, supra note 9, at 313. 301. 13 Edw. I, chs. 25, 36 (1285), I Statutes of the Realm 84, 88 (1810, reprinted 1963). Imprisonment and double damages were the remedy for violating the former section and the latter imposed treble damages if the suit were brought maliciously. See I Coke, The Second Institute of the Laws of England, supra note 9, at 408-15, 443-45; II Fleta, supra note 23, at 223-24; III 302. See Palmer, supra note 8, at 133; Plucknett, supra note 40, at 155; supra note 72 and accompanying text. 303.

The discussion of lawyer regulation by Brand, Palmer, and Sayles included many of these occurred in the eyre and local courts. Brand identified several cases punishing lawyers for misconduct involving conflict of interest, champerty, and maintenance. 304 The basis of the punishment in these cases, although not explicit, was probably the court's inherent power to discipline its own officers, which was an aspect of, or closely related to, its power to punish summarily for contempt. 305 These other statutes and discipline were not that significant themselves, especially when compared to the Statute of Westminster I, the London Ordinance of 1280, and the Ordinance of 1292. Nevertheless, they are noteworthy because they echoed the same themes as the three critical regulations. This other regulation manifested the concern with excessive litigation, the role of lawyers in causing it, and conflict of interest as a common litigation through their misconduct and incompetence. As the 14th century poem said, lawyers "will beguile you . . . unless you beware," "make men begin what they never had thought," and "no man should trust them, so false are they in the bile." 307 Ives stated that a common medieval theme focussed on lawyers' pursuit of wealth and evidenced "a simple lack of charity . . . [and] a conspiracy to fleece the layman." 308 Sayles concluded that the "rapid growth of the profession" required regulation and that "it was inevitable that vicarious representation should bring in its train much bribery and corruption," causing lawyers to come "under the lash and public scorn and indignation [with] a monotonous outcry" against their misconduct. 309 Thus, the initial regulation instituted controls on the number of attorneys, their competence and their conduct as a remedy to prevent these harms.

These substantive and thematic aspects are not merely interesting from a historical perspective. The substantive dimensions are the antecedents of modern lawyer regulation.

Moreover, some of the common forms of misconduct are similar to those most common today. Most interestingly, the medieval attitudes regarding excessive litigation, the number of lawyers, and their ethics, competence, and training are strikingly similar to 20th century attitudes about these matters. 307.

See supra note 136. That lawyers create a demand for their services is a not uncommon assertion. Richard Abel has discussed it with reference to 20th century America. See Richard Abel, supra note 2, at 126-41. 308. He cited as evidence Chaucer's description of the serjeant, his "man of law" and a late 15th century poem and play. See Ives, supra note 8, at 285-86. 309. See Sayles, I Select Cases in the Court of the King's Bench under Edward I, supra note 9, at ciii, cviii.

C.

The Later Regulation

This section will cover the period from the end of the reign of Edward I in 1307 to the end of the 15th century, discussing 14th century developments and the 1402 and 1455 statutes regulating the legal profession. Overall, there was not nearly as much regulatory activity during this period. By the end of the 14th century and perhaps earlier, serjeants had a monopoly on pleading in the Common Bench. 317 Since the closing of this bar did not result from a particular regulation as with the 1280 and 1292 ordinances, legal historians have had difficulty fixing a particular date. It may have been a gradual occurrence that resulted 316. See Brand, Origins, supra note 8, at 90; Kirk, supra note 8, at 11; Cohen, A History of the Bar, supra note 8, at 298-99; II Reeves, supra note 9, at 304-05. The Chancellor and the royal Chief Justices still retained broad powers to appoint. Id. 317. See Brand, Origins, supra note 8, at 106; Baker, The Order of Serjeants at Law, supra note 8, at 14; II Holdsworth, supra note 9, at 485, 490. Ives described the serjeants' monopoly as "the sugar pill of judicial duties." See Ives, supra note 8, at 75. The serjeants retained this monopoly until the 19th century. See Baker, supra, at 43. from judicial and then royal control over admission to practice as a serjeant. 318 Baker said that control of admission by the crown, which did not occur until later in the 14th century, was the critical factor in solidifying the serjeant's monopoly. 319 Brand, however, believed that the serjeant's profession was probably closed by the end of the 13th century. 320

Regardless of the uncertainty over the date, serjeants clearly had a monopoly in the Common Bench although it was much more difficult to determine whether it existed in the other royal courts. Brand suggested that their legal monopoly in the Common Bench may have had similar practical effects in the King's Bench and Eyre as Common Bench serjeants dominated practice in those other courts. 321 Nevertheless, by the end of the 14th 318. See Brand, Origins, supra note 8, at 106-07; Baker, The Order of Serjeants at Law, supra note 8, at 14-16, 28-43; II Holdsworth, supra note 9, at 485; Plucknett, The Legal Profession in History, supra note 74, at 335-36. 319. See Baker, The Order of Serjeants at Law, supra note 8, at 42. Royal control of the serjeants' admission occurred through the formation of their Order and the use of "calls" by king's council to determine membership. Through "group calls," the council nominated several new serjeants for admission to Common Bench at one time. Baker thought that the council's control of admission by "group calls" occurred no later than 1382, and perhaps by 1371. He also stated that regular use of "group calls" for the judicial admission of serjeants may have existed by 1329, with some use as early as 1309. These Common Bench controls resulted in "a small, closed order" by the 1330s . See Baker,supra,at 12,[28][29][30][31][32][33][34][35][36][37][38][39][40][41][42][43] Brand believed that group calls may have been as early as 1293 or 1299. See Brand,Origins,supra note 8,at 108;Baker,supra,at 137 & n.1. Zane also favored a later date for the serjeants monopoly, seeing no evidence of it in the Year Books published during the reign of Edward I. See Zane, supra note 17, at 650. 320.

Focussing on judicial control of admission and the few Common Bench serjeants, he has argued that their monopoly emerged in the 1290s. See Brand, Origins, supra note 8, at 106-10. His argument is persuasive. He cited substantial evidence of judicial admission control and of support for the substantially earlier date, particularly the failure of the number of serjeants to increase as business doubled. He also reviewed Baker's arguments for the later date and explained his disagreement. Id. Milsom also believed that the serjeants had become a closed profession in the Common Bench by the end of the 13th century and Maitland and Montague apparently did as well. See Milsom, supra note 9, at 40; Maitland & Montague, supra note 9, at 96-97. Brand concluded that this monopoly was probably the product of outside forces and the not result of the serjeants' efforts, which was his position with regard to the monopolies created by the London Ordinance of 1280 and the Ordinance of 1292. See Brand,supra note 9,at 20. 321. See Brand,Origins,supra note 8,at 109. Some commentators felt that by the 15th century, barristers had a monopoly in the King's Bench, equating it with the earlier monopoly of Common Bench serjeants. See Harding, A Social History of English Law, supra note 9, at 176; Curzon, supra note 55, at 168, century, and perhaps earlier, as a result of the serjeants' monopoly and the 1280 and 1292

Ordinances, professional lawyers had achieved a monopoly of practice before most of the important courts.

Given these monopoly practice rights, a number of legal historians have characterized the legal profession, especially serjeants, as a gild, suggesting a similarity with the well-known medieval craft gilds, 322 an outgrowth of the gild merchant. 323 These craft gilds did not include one for lawyers nor were lawyers generally members of the gild merchant. 324 203. 322. See,e.g. Cantor,supra note 18,at 68; II Holdsworth, supra note 9, at 508; Roscoe, supra note 9, at 24. Judge Richard Posner has noted the cartel characteristics of the modern legal profession and compared it to a medieval cartel. See Richard A. Posner, Overcoming Law 39-63 (1995). 323.

The gild merchant, consisting of a town's craftsmen, tradesmen, merchants and artisans, was created during the twelfth and thirteenth century as a department of a town's administration to regulate and control the local trade monopoly . See Charles Gross, I The Gild Merchant 43, 66 (1967). Under its regulations, members could trade freely in the town, but non-members were forced to pay tolls or in many cases, especially retailers, were forbidden from transacting any business. Also, some gild ordinances required the inspection of foreign goods prior to sale. These ordinances also mandated that members would have the first opportunity to purchase incoming goods and could claim a share of a brother member's purchase for the same price. These regulations, combined with local ordinances prohibiting forestalling and regrating, kept middlemen out, keeping competition at a minimum and the local trade monopoly robust. ; II Holdsworth, supra note 9, at 390. 324. However, a judge and a clerk are listed as members of a Shrewsbury gild merchant during Edward I. See Francis A. Hibbert, The Influence andDevelopment of English Gilds 28-29 (1891, reprinted 1970). Also scriveners formed a gild in the 14th century. See Birks,supra note 8,[72][73][74][75]W. Carew Hazlitt, The Livery Companies of the City of London 613-19 (1892, reprinted 1969). In the late thirteenth and early fourteenth century, the gild merchant gave way to the craft gilds, which performed the same monopoly protecting function. See Gross, supra note 323, at 116. Unlike the gild merchant, the craft gild only controlled the trade of its particular profession, but like it imposed tolls or excluded nonmembers. Also craft gilds adopted professional standards that more closely regulated their crafts than the gild merchant had. The craft gilds did not achieve real prominence until a general economic upswing provided for an increase in the division of labor. Although craftsmen initially belonged to the town's gild merchant, members of the same craft began to make agreements to govern their craft. Although initially probably secret, the agreements later formed the basis for the emerging craft gilds . See Stella Kramer, The English Craft Gilds and the Government 25-28 (1968); Gross, supra note 323, at 116. In the fifteenth century a general trend towards strengthening municipal control over the craft gilds eventually destroyed them . See Kramer,supra,[43][44][45][46][47][48][49][50] The failure of the legal profession to be a part of the craft gilds was not surprising.

First, the nature of their practice did not fit the structure of the craft gild system, which involved merchants operating in a specific trade and town and the exclusion of new entrants. In contrast, the practice of lawyers centered around the royal and London courts.

Perhaps more important, the formation of a formal gild was unnecessary as admission to practice was controlled by the court and regulated by statute and ordinance. Formal gilds did exist in the Florence legal profession; 325 and ultimately the Order of the Coif and the Inns of Court functioned like de facto gilds. 326

325.

A well established guild of judges and notaries, some of whom functioned as pleaders, existed in Florence and some form of legal guild existed in France although it may have been mainly a religious group . See Staley,supra note 198,at 77; Baker, The Order of Serjeants at Law, supra note 8, at 20. By 1236, the Florentine Guild was listed first among the wealthiest and most powerful Florentine guilds. The primary reason for the Guild's prominence was the political situation in Florence in the twelfth and thirteenth centuries involving disputes between the nobles and the traders. In order to ensure their just resolution, the Florentines looked to neutral foreigners, predominantly doctors of law from the prestigious University of Bologna. This practice laid the foundation for the Guild of Judges and Notaries, which became a central cog in the Florentine political machine. The requirements for membership as a Guild judge included Florentine citizenship and the possession of a legal degree. The notaries were the agents of the great merchants of Florence, drew up charters, contracts and wills, prepared balance sheets, conducted foreign correspondence, and pleaded their clients' cases. By the fifteenth century the notaries that specialized in pleading came to be called advocates. In order to be accepted as a notary in the Guild the applicant was required, inter alia, to pass an exam and swear that he would "exercise [his] profession faithfully, and lawfully, and would never be guilty of the least exaction or extortion." In return the Guild allowed the notaries to represent their clients in court for money . See Staley,supra,[42][43][44][45][46][47][48][49][50][51][52]. Some historians believed that medieval continental guilds were the direct descendants of the Roman collegia and scholae, but others felt that they were a spontaneous group of craftsmen who formed to regulate their industries. Like the English gild the fundamental objective of the continental guild was the elimination of competition and the protection of the local trade monopoly. See George F. Renard, Guilds in the Middle Ages 1-2 (Dorothy Terry trans. 1918). 326. See,e.g. Baker,The Order of Serjeants at Law,supra note 8,[19][20][42][43]; II Holdsworth, supra note 9, at 508-09. Some compared these de facto gilds to the continental guilds. See II Holdsworth, supra note 9, at 493 & n.5;Frederic W. Maitland, English Law andthe Renaissance 88-89 n.60 (1901, reprinted 1985). Ives noted that judicial regulation of the profession was not an authoritarian command and control, but a consensus among the judges, serjeants, and senior members of the profession. "The legal profession was ruled, in common with gilds and corporations of the time, by an oligarchy of senior members, backed by royal support and approval." See Ives, supra note 8, at 17. c.

Parliamentary Petitions. In the early 14th century, petitioning parliament developed as a significant method of presenting grievances to the King and his council and it became a vehicle for complaints about lawyers. 327 As a successor to presenting grievances about public officials to the Eyre justices after the 1274 Inquest, 328 this political process probably reflected Edward I's political style and the developing parliamentary role. 329 The growing regularity of parliament's meetings created the opportunity to review royal administration and justice and made it a logical forum for reviewing individual, group, and local complaints. 330 Although this process developed during Edward I and Edward II as a vehicle to meet community needs, 331 it developed more fully as a process to redress grievances under Edward III. Its evolution continued in the 14th and 15th centuries 332 with a greater recognition of parliament's role as a dispenser of justice and with a public expectation that receiving and answering petitions was a principle function. 333 Of the four types of petitions, 334 the common petition was the most significant for this article's purposes. It developed from 1350-1450 335 as an important method for expressing grievances and securing a royal response 336 and it often produced remedial legislation. 337 They could be public or private and could originate with either the lords or the commons. See Gray,supra note 327, procedures developed for the presentation and handling of private and public or commons petitions . See Richardson & Sayles,supra note 327,Rayner I,supra note 327,Myers I,supra note 327,. It had appeared earlier. See Harris,supra note 328,at 50;Maddicott,supra See Harris, supra. 336. See, e.g., A.L. Brown, Parliament, c.1377-1422 in The English Parliament in the Middle Ages, supra note 186, at 125-30; Gray,supra note 327,Myers I,supra note 327,[397][398][399][400][401][402][403][404]By the 1370s, parliament had become the chief intermediary between the crown and its subjects" with the commons petitions as the main vehicle for expressing local and national grievances and the "concerns . . . of the political nation." See Maddicott, supra note 328, at 69-70. The 1376 "Good Parliament" was probably significant for the commons petitions. It produced the longest one, recounting numerous abuses and local corruption and demanding annual parliaments to remedy these problems. See Harris,supra note 328,at 59;Maddicott,supra note 328,at 61;Brown,supra,at 111;Rayner II,supra note 327, may have reflected a change in Commons' political nature 338 and an emerging role of its members, the knights and burgesses, to act for their constituents. 339 Although the commons petitions became an important aspect of the parliamentary process, the origin noted broader changes after this parliament, continuing through Henry VI: better drafted and more legal petitions, improved procedures; increased confidence of Commons in its advocacy, and the significance of the speaker. See A.R. Myers, Parliament, 1422-1509 in The English Parliament in the Middle Ages, supra note 186, at 166-74. 337. See Richardson & Sayles,supra note 327,supra note 327, & Sayles said that a common petition created a prima facie case for relief with the final decision resulting from the council's close examination. Id. at 12. Sometimes the council referred the matter to a committee; if the committee thought it of permanent value, a statute was enacted. Id. at XXII 387. Many 14th and 15th statutes resulted from a common petition. See Harris,supra note 328,at 45,50;Richardson & Sayles,supra note 327,46,Gray,supra note 327, By the 15th century, Commons played a critical role and its consent to enactment was essential. See Myers,supra note 336, After 1450, however, the "commons' influence on legislation began to wane," (id. at 416), resulting in significant differences between Edward I's legislation and that under Edward III. The former involved fundamental reforms and the latter, while important, were less well drafted and repetitive. e.g.,Maddicott,supra note 328,at 86;Brown,supra note 336,at 126,138. Commons' role and influence has received considerable scholarly attention. Much of it has urged caution in equating the widespread use of commons petitions and their role in producing statutes with the conclusion that Commons had become a very influential political institution. Gray concluded that from 1350-1450 Commons was quite influential in producing popular legislation, which reflected its middle class constituents, but declined thereafter. "The fortunes of popular statutory legislation thus rose on an ascending curve only to decline to a level not much higher than that from which they started. " Gray,supra note 327, Richardson and Sayles stated that, although the primary function of Commons under Edward III was petitioning the crown, its unity seemed to have been imposed from above rather than the democratic product of the members' and constituents' common interest. See Richard & Sayles,supra note 327,at 15. Rayner said that Commons in the 14th century was "a body forced into unity and even driven into the manifestation of a corporate will by the royal demands for corporate aid; utilized by the king or lords when an instrument was needed for their policy in parliament; but tending to disintegrate into a plurality of wills and interests when left to itself." She concluded that commons petitions, although important, did not reflect "the growing strength and 'progress' of Commons in parliament." Rayner II, supra note 327, at 570. Myers said "in the early fifteenth century the prestige and power of the Commons were increasing;" and "although the Commons were playing an increasingly important part in the machinery of petitioning in the early 15th century, one must beware of attributing too great a solidarity to their ranks." See Myers I,supra note 327,[402][403][404] 339. See Harris,supra note 328,at 50;Maddicott,supra note 328,[69][70][71][72][73]Richardson & Sayles,supra note 327,at XXI 13,XXIV 40;Myers I,supra note 327, By 1330 the writs ordering the election of the shire knights recognized their responsibility to present community grievances. See Harris, supra. Like other democratic exercises, the primary benefit may have been the process rather than statutory and other royal remedies. "Commons saw themselves as the voice and conscience of the whole community," but the petitioning process with its "repeated protests" and "reiterated remedies from the crown were a ritual designed to deflect a confrontation between royal prerogative and the welfare of the community." See Harris,supra note 328,at 52,60. and nature of some revealed that they were not truly petitions of the House of Commons. 340 Nevertheless, the term, commons petitions, denoted those petitions that concerned a matter of public or common interest. 341 One topic of public interest was the conduct of lawyers. Perhaps the best known connection between lawyers and commons petitions was the charge that lawyers were abusing the petitioning process to aid their private clients. A widespread belief existed that lawyers obtained Commons' endorsement of their clients' private grievances in a common petition. 342 A 1372 Common Petition and resulting Ordinance reflected the 340. Not all commons petitions originated in the House of Commons and were the product of its debate since some may have been private petitions, group petitions, or petitions sent by the lords that Commons chose to adopt . See Brown,supra note 336,Richardson & Sayles,supra note 327,XXVI 19;Gray,supra note 327,[87][88][89][90][91][92]Rayner II,supra Harris, supra note 328, at 49-50. The term, "common petition" has usually been applied to those petitions that appeared after that caption in the parliamentary rolls. See Myers II,supra, There is both uncertainty and disagreement, however, over the compilation and origination of such petitions. Some historians have felt that the petition's language, particularly the introductory words, was a guide to identify actual Commons petitions. See,e.g.,Gray,supra note 327,Rayner I,supra note 327,[198][199][200][201][202][203][204][205], Myers found that the introductory language that some thought particularly significant was not always a reliable indicator and that Commons played a minor or virtually no role in compiling some commons petitions despite language that Commons was appealing for a group. He believed Commons was largely responsible if a petition peculiarly concerned the knights' or burgesses' interests or a question of national interest. See Myers II,supra,[593][594][595][596][597][598][599][600][601][602][603][604][605]. See Myers, supra note 336, at 180; Rayner II, supra note 327, at 569-70; Myers II, supra note 327, at 605-06. Rayner stated that the term, communes petitions reflected the "notions of the century" and "background of times" regarding the practice of individuals or groups speaking for the "community in general." Rayner II, supra. Myers said that the commons of the realm was not synonymous with the commons of parliament. In the 15th century "commons" did not necessarily refer to the knights and burgesses in parliament, but denoted a group of any size. He found that some petitions in commons' name actually came from the people or general public not from the Commons. See Myers II,supra,supra note 327,at XXI 12,Brown,supra note 336,Gray,supra note 327,at 348; II Stubbs, supra note 103, at 445; Rayner I, supra note 327, at 206; Rayner II, supra note 327, at 569. As indicated earlier, not all commons petitions were petitions of the Commons and some were individual petitions endorsed by the Commons. See supra note 340. Many scholars believed that this abuse occurred as Commons had not adopted procedures to insure the regularity and dissatisfaction with this lawyer abuse of petitions ("do procure and cause to be to brought into Parliament many Petitions in the name of Commons, which in no way relate to them, but only the private persons with whom they are engaged"); and the Ordinance prohibited practicing lawyers from being a knight of the shire, and, therefore, a member of parliament. 343 This prohibition was not very effective as in the early 15th century numerous commons members were lawyers. 344 Lawyers' activities in the courts were also the subject of several commons petitions although not all of them reflected negatively on the legal profession. 345 But some petitions were critical. A 1381 petition asked that serjeants and "the best apprentices of the law shall be charged by their vows and . . . good faith to diligently advise of abuses, torts, defaults . . . ." 346 Also, a 1393 petition complained that clerks acting as attorneys integrity of commons petitions. Although lawyer members might have manipulated "commons' petitions for their own advantage and did not always represent the common interest," they were not the only members who had clients. Others included "persistent litigants or maintainers of plaints or those who live by such gains . . . paid supporters of other men's quarrels, rogues . . . whose practice of maintenance was coming to threaten parliament just as it already threatened the king's other courts." See Maddicott, supra note 328, at 76-77. 343. See 2 Rotuli Parliamentorum 310, no. 13, 46 Edw. III (1372) (1767-77) (petition); 46 Edw III (1372), I Statutes of the Realm 394 (1810, reprinted 1963). The prohibition also extended to sheriffs. Although some scholars have referred to this prohibition as a statute or ordinance (see authorities supra note 342), there is some doubt; and it may have been only a common petition and royal response that was included in the statutory compilation. See I Statutes of the Realm, supra, at 395 note. 344.

Myers determined that in the 1422 parliament, 20 of 74 knights of the shire were lawyers and 37 burgesses were lawyers. "Lawyers could not be kept out; and in at least one important respect they may have contributed to the growing prestige of commons." See Myers, supra note 336, at 166. 345.

A 1364 Common Petition reflected the need for "wise counsel," which was believed to be impaired by the court's movement from county to county. See 2 Rotuli Parliamentorum 286, no. 12, 38 Edw. III (1364)(1767 More importantly, commons petitions were the basis for the two final medieval regulations of lawyers.

364.

Another common subject of legislation was the continuing controversy between the crown and the clergy and the right of the latter to appear in the secular courts. Numerous statutes dealt with this matter. See, e.g., 33 Henry VI ch. 6 (1455) 1963). Also, a 1413 statute was intended to eliminate undue influence by sheriffs by prohibiting his officials from acting as attorneys in the king's courts while in office, which also protected attorneys from competition from them. See 1 Henry V, ch. 4 (1413), II Statutes of the Realm 171 (1810, reprinted 1963); Christian, supra 8, at 22-23. 366. See 18 Henry VI, ch. 9 (1439), II Statues of the Realm 308 (1810, reprinted 1963). This statute was aimed at outlawry, a process used with contempt proceedings, because the failure to record the warrant caused the "outlawries [to] be reversible." Id. Also, a 1452 Common Bench order regulated their conduct. 367 Continuing problems in the London courts also led to further regulation. 368 The continuing complaints about lawyers in commons petitions are more significant for this article's themes. The 1410 Common Petition complained about lawyers even though the 1402 statute regulating them had just been enacted. 369 The Petition stated that Commons was aware of "large and grevious complaints" from a variety of people from all around England that "due to the large number of attorneys in your courts, diverse errors, deceits, and injuries" occurred daily with "extortions, expenditures, and great losses" to the citizens, "great damage and slander of your courts, and impoverishment and ruination" of the citizens. Since the present parliament had failed to order a "sufficient remedy," the petition requested the king to order the justices and each bench to examine all attorneys practicing before them and if any "be found guilty" of previously described misconduct, the justices should "oust them from your courts forever." In addition, the justices should call "the most sufficient and loyal 367. See II Holdsworth, supra note 9, at 504-05. 368.

During the reign of Henry VI, an ordinance was enacted requiring the annual swearing of pleaders and attorneys and another prohibiting pleaders and attorneys from pleading within the bar of the Sheriff's court and punishing them for false actions or allegations. I Munimenta Gildhallae Londoniensis, Liber Albus Book III Part IV 473; id. at Book IV 521-22 (Henry T. Riley, ed. 1859, reprinted 1968). The latter Ordinance required lawyers "to stand without, no cry or noise being made," so that good citizens and people of the law could be heard on the business that they needed to transact in the courts. Id attorneys . . . [six, eight, 10, or 12 per county,] according to the size of the county." The petition requested that admitted attorneys swear annually and in each term to be "faithful and loyal" to the king and "just and loyal" to the citizens, and, finally that the attorneys be imprisoned for a year if guilty. The king, in response, acquiesced in the petition and the requested penalty. 370 Not even waiting for several years as it had with the 1410 petition, the Commons again petitioned in 1411, manifesting the same complaints. This petition by "the clerks and attorneys from one Bench to the other" was almost identical to the 1410 petition. 371 It stated that the Commons would demonstrate all the problems and injury no. 63,11 Henry IV (1410)(1767-77). The penalty is not clear either in the petition or the king's response. It may have applied to attorneys who practiced without being called by the justices as well as to admitted attorneys who violated their oath. The penalty also included being "ransomed according to the wishes of the king." Not all the petitions were hostile to lawyers. The Common Petition of 1415, while reasserting judicial control of attorneys, seemed to request greater flexibility in their appointment and extended the power to serjeants. See 4 Rotuli Parliamentorum 80, no. 34, 3 Henry V (1415). Its language appeared to reflect some unhappiness with the restrictions on appointment imposed by the Statute of Fines and Attorneys. See supra note 315 and accompanying text. 371.

The 1410 petition also requested that certain court officials be prohibited from acting as attorneys, perhaps reflecting again the desire to prevent interested parties from falsifying records and interfering with justice. See supra notes 347, 364-65 and accompanying text. The king's response to the 1410 petition rejected the prohibition, but decreed that the punishment for the court officials would be double that applicable to attorneys. no. 63, supra note 370. The 1411 petition's reference to the prohibition on court officials acting as attorneys appeared to be to the 1410 petition, not a second request, which seems consistent with the fact that 1411 petition came from the clerks. It noted the king's response on that matter, which was punishment for certain misconduct, was "so grevious . . . that it cannot be achieved." The petition seemed to request modification and the king's response suspended the punishment on court officials imposed by the prior petition until the next parliament and instructed parliament to "make a report of its opinion in this matter." See 3 Rotuli Parliamentorum 666, no. 49, 11 Henry IV (1411)(1767-77). Commentators noted that these abuses by court officials were the subject of repeated complaints, noting that these officials were powerful and resisted strongly. See Kirk, supra note 8, at 12-13; Law & Magazine Rev., supra note 8, at 248-49. Because of its reaction to the 1410 petition, the 1411 petition has been characterized as a "counter petition." See Christian, supra note 8, at 22. Kirk believed that the inclusion of this request regarding court officials prevented the implementation of the 1410 petition's requested reduction of attorneys and may have explained the requested modification in the 1411 petition. He said that after the subject of court officials acting as attorneys was referred to the judges, "nothing was heard of it." The power of the clerks made them more successful in petitioning the king than the Commons. See Kirk, supra; Law & Magazine Rev., supra. After this failure to restrict clerks, Birks stated that "their right to act as attorneys was not questioned again for over two hundred years." See Birks, supra note 8, at 43. caused by "the great multitude of attorneys" and reflected a sense of urgency ("we cry to the Royal Majesty to command his justices"). 372 The 1455 Common Petition repeated these complaints more vividly as to Suffolk and Norfolk, thought to be especially litigious, 373 See 3 Rotuli Parliamentorum 666, no. 49, supra note 371. This language was stronger than the 1410 petition ("may it please your Royal Majesty to order your justices"). The 1411 petition reflected the 1410 petition's existence and the king's response. 373. See Christian, supra note 8, at 30-32. Proverbs and literature reflected this aspect of the Norfolk's nature. Id. Birks stated that the increase in these counties was "probably exceptional" and was a unsurprising consequence of those counties "great prosperity." See Birks, supra note 8, at 44. 374. See 5 Rotuli Parliamentorum 326-27, no. 57, 33 Henry VI (1455) (1767. During the 15th century, commons petitions dealing with communities were not uncommon. See Myers, supra note 336, at 171-72; Myers II, supra note 327, at 601-02; Myers I, supra note 327, at 390-93. Even some petitions with the introductory language, "prayen the Commons," as was the case with the 1455 petition, were not really from the Commons, "but from the 'people' or 'the public.'" See Myers II, supra. According to Gray, this petition was a true commons bill (see Gray, supra note 327, at 98-99), but it was one of a few, "comparatively insignificant" ones approved by Commons in the 1455-56 parliament in contrast to the numerous important ones that were rejected, evidencing his view of the declining influence of Commons. There is an obvious linkage between the 1410 and 1411 petitions and the 1455 one. They all requested reduction in the number of attorneys on a county basis. Kirk believed that the relief requested in the earlier petitions might have been granted but for the inclusion of the requested prohibition on court officials. See Kirk, supra note 8, at 13. The much more limited 1455 request did not contain that request, which may have influenced the 1455 statute's adoption. 375.

There were a few interesting differences between the petition and the preamble. The former contained one complaint not in the Ordinance, that attorneys were suing for their fees before obtaining any remedies for the client and were causing clients to be outlawed. Also it stated that the attorneys pressed their clients for fees and costs in the "second action," presumably the one seeking fees, and the "first." In the portion complaining about the attorneys appearing where people congregate and inciting them to sue, the petition added the attorneys were "affirming and promising the said people to have recovery with great damages . . . ." Counties of Norfolk and Suffolk, there were no more but six or eight Attornies at the most, [coming] to the King's Courts in which Time great Tranquillity reigned in the said City and Counties, and little Trouble or Vexation was made by untrue or foreign Suits; And now so it is, that in the said City and Counties there be Fourscore Attornies, or more, the more Part of them having no other Thing to live upon, but only his Gain by [the Practice of] Attorneyship, and also the more Part of them not being of sufficient Knowledge to be an Attorney, which [come] to every Fair, Market, and other Places, where is any Assembly of People, exhorting, procuring, moving, and inciting the People to attempt untrue [and] foreign Suits, for small Trespasses, little Offences, and small Sums of Debt, whose Actions be triable and determinable in Court Barons; whereby proceed many Suits, more of evil Will and Malice, than of the Truth of the Thing, to the manifold Vexation and no little Damage of the Inhabitants of the said City and Counties, and also to the perpetual [Diminution] of all the Court Barons in the said Counties, unless convenient Remedy be provided in this Behalf. 376 The Ordinance again reflected the objective of limiting the number of attorneys to curb excessive, unfounded litigation and of reducing the number of ignorant and incompetent attorneys. 377 Although its limited geographical scope made it less significant than the earlier regulations, the 1455 Ordinance was still important. It was yet another attempt to limit the number attorneys, consistent with the thrust of the 1292 and 1402 legislation. 378 376. 33 Henry VI, ch. 7 (1455), II Statutes of the Realm 377-78 (1810, reprinted 1963). Because of this preamble, Reeves stated that the statute "deserves some notice for the singularity of the facts it contains." See III Reeves, supra note 9, at 284-85. Coke's comments, "the multitude of attornies . . .[as] a great cause of increase of suits" were directed, inter alia, at this statute. See Coke, The Fourth Part of the Institutes of the Laws of England, supra note 9, at 76. His discussion of the City of Norwich also referred to this statute. See id. at 257. The negative impact of attorneys on the manorial courts, mentioned in the 1455 petition and statute, resulted from those courts being viewed as another source of work for attorneys. See Birks,supra 8,[61][62][63].

Holdsworth treated both the 1402 and 1455 regulations as authorizing judges to remove ignorant or miscreant attorneys. See II Holdsworth, supra note 9, at 505 n.2. Birks stated that the 1455 Ordinance was "one last attempt" to limit attorneys, given the earlier statutes' ineffectiveness. See Birks,supra note 8,at 44. 378.

Plucknett observed the linkage of these three regulations. See Plucknett, A Concise History of the Common Law, supra note 9, at 218 n.1. Christian believed that there was considerable doubt regarding Moreover, it was another response to public complaints about excessive litigation resulting from attorney created demand, misconduct, and poor training.

Conclusion

The later regulation is interesting and important. Clearly, neither this period nor its individual regulations were as significant as the initial period and the 1275, 1280, Finally, the hostile public attitudes toward lawyers are especially interesting.

Certainly, these views were not new as they commenced with the profession's emergence in the 13th century and continued through the medieval period. Nor was their impact on the institution of regulation, although noteworthy, novel. However, during the later period, the form of expression, the common petition, differed as it occurred in a more formal, regular manner. The repeated Commons complaints about lawyers evidenced that this topic was a persistent problem that required consideration through the institutional political process like other matters affecting the public interest. Ives stated that "the English common lawyers had, in the closing years of the middle ages, enormous influence as the interpreters of the law, as a professional monopoly and as aspiring and affluent members of society." See Ives, supra note 8, at 3. A 1484 government memorandum warned against using laymen rather than lawyers for legal tasks. Id. at 11. medieval version of the modern bar examination. On the other hand, the 1292 and 1455 ordinances' attempts to limit the absolute number of lawyers has no explicit modern counterpart although some would undoubtedly claim that a similar implicit professional influence exists.

IV. Conclusion and Beyond

The medieval regulation of lawyer conduct similarly anticipated modern regulation. Through either judicial application, as was the case with the 1275 Statute of Westminster I, or regulatory enumeration, as was true with the London Ordinance of 1280, these early regulations developed norms of professional behavior. The latter regulation with its detailed prohibitions on specific types of misconduct resembled a modern ethical code. Also, common types of misconduct such as conflict of interest, lack of diligence, and deficient competence were similar to the misconduct commonly subject to today's discipline and malpractice proceedings. In addition, many of the medieval breaches of duties to courts involved the type of conduct punished today, especially under Rule 11 of the Federal Rules of Civil Procedure. On the other hand, some medieval misconduct such as acting without authorization, altering court records, or forging documents would be less common today. In addition, the familiar modern notion of a lawyer as an officer of the court and the common disciplinary remedy of disbarment have their roots in this early regulation. All in all, the medieval regulation or lawyers created the foundation of modern regulation. 380

380.

It is not uncommon for medievalists today to perceive relevance of that era to the 20th century. See,e.g.,Cantor,supra note 18,[17][18][27][28]36,47,242,246, With regard to modern times, the hostile medieval attitudes toward lawyers are noteworthy. In the discussion of the individual regulations and the climate of opinion surrounding regulation, a familiar litany emerged: an excessive number of lawyers, their misconduct and poor training caused excessive and unmeritorious litigation. One interesting issue is the influence of these attitudes on the enactment of the medieval regulations. A logical conclusion is that these attitudes played a significant role in these regulations' adoption. The actual documents, contemporary commentators, and historians over time, all previously discussed, support this conclusion; and it fits the most traditional modern theory of regulation, the public interest theory.

The public interest theory posits that governmental regulation is necessary to cure market failures such as monopoly, externalities, and information asymmetries, which cause socially suboptimal performance. 381 This theory has been asserted to support professional and occupational regulation. 382 Thus, the medieval regulation of the legal profession was necessary to eliminate socially harmful litigation by reducing the number of lawyers, controlling their conduct, and insuring their competence. Moreover, this regulation can be viewed as a product of the political system and an aspect of the broader reform movement, particularly during the reign of Edward I. This characterization is consistent with historians' linkage of political reform and governmental regulation to protect the public. 383 Although there is a reasonable basis for these conclusions regarding a public interest rationale for this medieval regulation, perhaps one should not adopt them too quickly, suggesting the need for broader reflection.

B. Some Further Thoughts

Other possible theories of regulation and a greater understanding of the hostile public attitudes toward lawyers present opportunities for further thought and research.

Revisionist Theories of Regulation

At least two possible revisionist theories might compete with the public interest rationale. A more cynical theory, which draws more on history than economics, is that the medieval regulation was neither a true aspect of the reform movement nor an attempt to vindicate the public interest, but more of a symbolic gesture by conservative and astute politicians to appease the complaining citizens. 384 Considerable evidence supports this possible rationale. 190 (1979)("In 1890, as a largely meaningless and cynical gesture to appease public sentiment, an ultra-conservation Congress passed the Sherman Antitrust Act"). Cf. Boorstin, supra note 383, at 418 ("Legislating against [the trusts] was like passing a law against the wind"). these attempts to limit the number of lawyers. Moreover, the king, his advisors, and the judges --the enactors and enforcers of these regulations --were closely aligned with the legal profession and benefited both from litigation and the existence of lawyers. 385 Also, lawyers played a substantial role in drafting these statutes. 386 Thus, one may question whether it was likely that king and these officials would adopt and enforce measures significantly restricting the profession. Notably, notwithstanding these repeated regulations, the legal profession retained substantial autonomy despite the failure to institute formal self-regulation in place of government regulation. 387 Thus, these regulations may have been at most a political response to public sentiment with perhaps some desire to control a few of the worst excesses; at worst they were a cynical gesture.

Whatever they were, it is unlikely that their adoption reflected a popular political process at work; they instead were the act of a powerful king, benevolent or otherwise. 388 Another possible revisionist theory of regulation is rent seeking, which involves 385. Litigation generated income for the crown and judges. See Brooks, supra note 8, at 79. Cantor identified the critical role of the legal profession in effectively achieving the crown's objectives in parliament . See Cantor,supra note 18,[75][76] Anderson and Tollison noted the influence of judicial fees on the 17th century jurisdictional disputes. See Anderson & Tollison, supra note 2, at 53-57. Although many historians have venerated Edward I and nurtured his reputation as a reformer (see supra notes 121-30 & accompanying text), others noted "his insatiable lust for power and wealth." See Cantor, supra, at 240. This latter view is consistent with the symbolic gesture-appeasement rationale. 386 Many medievalists have urged great caution in treating the actions of medieval parliaments as an exercise in democracy and have seen them as instruments of royal will. See, e.g. Cantor, supra note 18, at 75-77; supra notes 332-37 and accompanying text. Cantor saw Maitland as the chief architect of the view that the common law resulted from an alliance between the crown and the gentry, imposed autocratically on society. He noted, however, that other historians did not share this view and preferred a more democratic explanation . See Cantor,supra,[67][68] the use of the legislative process by interest groups to increase their income. 389 A fair amount of evidence suggests the existence of some rent seeking with respect to medieval regulation of the legal profession. Its possible role in the adoption of the London Ordinance of 1280 and the Ordinance of 1292 has already been discussed. 390 Lawyer influence on statutory drafting also raises this possibility. 391 As discussed, many believed that lawyers abused the parliamentary process for benefit of their constituents 392 and, if so, using this influence to resist significant control of their own profession would seem to have been likely. 393 This evidence of the profession's furthering its economic self-interest undermines the public interest rationale of the medieval regulation although it does not totally negate it. Moreover, regulation that furthers the self-interest of an interest group does not necessarily represent successful rent seeking and may involve a sincere, but perhaps erroneous, legislative view of the public interest. Thus, a final appraisal may involve mixed regulatory theories.

394.

He suggested that these attitudes were related to the structure of property ownership, the broader role of law, as foundational to English pre-reformation society, and the importance and wide spread diffusion of legal knowledge as a result of its universal relevance. See Ives, supra note 8, at 8-10, 22. 395. See Brooks, supra most substantial increase in the number of attorneys occurred after the medieval period, from 1560-1640, almost a ninefold increase in attorneys and four fold for serjeants in 80 years. 397 Although the increase from was not as dramatic, it was significant. Since there 397.

Calculating numbers of professional lawyers for the medieval period is not an easy task. For 1280 and 1307, I have relied on Brand's research. The most reliable statistics for these years are for the Common and King's Bench, and to a lesser extent for London Courts. Although Brand has some data for the other local courts and the Eyre, I did not include them because of the difficulty of determining numbers for both attorneys and serjeants for these two years. That does not mean that numbers were insignificant. Another problem is that some of same lawyers appeared in different courts and double counting may occur; and for these years, especially 1280, amateur lawyers still represented clients. Using Brand's research, I have consistent with low ratio for London in 1307, which is even lower than the United States today, although not necessarily with that year's much higher England ratios. Also, the hostility did not seem to abate much during the remainder of the medieval period even though the London ratio almost doubled. 400 The most substantial ratio change occurred from 1560-1640, a ninefold decrease in the ratio to a figure almost identical to that for 1951. It would be interesting to examine the attitudes during this most litigious period, which also exhibited the most substantial increase in lawyer numbers. 401 Although the hostility continued into the 18th century, at some point it subsided and is not now like the current Table 2

. Lawyer/Population Ratios -England & United States

Year Type Jurisdiction Ratio

London. The problems in estimating numbers of lawyers are compounded in calculating the ratios. These problems include the possible impact of professional provincial lawyers, variations in population estimates, and different years for lawyer and population estimates. Although precise accuracy is clearly not possible, the numbers and ratios are informative in absolute and relative terms. Podmore discussed some of these problems and explained various trends since the mid-19th century and some contrasts with the United States. Podmore, supra, at 13-19. 400. The movement in opposite directions for the London and England ratios in 1480 appeared to result from different changes in respective populations. The estimates suggest that London population may have increased more quickly after the plague than the rest of England. The increase in population in 13th and early 14th century probably influenced the increase in attorneys during that period although the change in ratios between 1307 and 1480 suggests a more significant decline in attorneys unless the drastic impact of the 1348 Black Death on population had been overcome by 1480. See Cantor, supra note 18, at 392-93. 401. Although Coke clearly expressed his view of excessive numbers regarding the period of most dramatic increase (See Coke, The Fourth Part of the Institutes of the Laws of England, supra note 9, at 76), additional study is necessary to determine the extent of those attitudes. It also might be revealing to compare these attitudes with medieval ones. Overall, the data regarding the number of lawyers and the lawyer population ratios 402. Cantor's belief that Maitland's views have had a greater impact in America than in England may offer some insight into the difference in modern attitudes toward lawyers in the two countries. He stated that the need for lawyers in England and their national visibility had diminished and he viewed the English legal profession as "declining," "constricted," and "quiescent." In contrast, he saw the American profession as much larger, "self-confident" and as having an overwhelming impact on American society, its ideas and culture . See Cantor,supra note 18,[68][69] provide some support for the hostile attitudes toward lawyers although some of the data seems inconsistent. Moreover, there is some doubt whether the increase in lawyers caused excessive litigation, as the 14th century poem and the various critics have suggested. One commentator believed that the opposite was true, that the increase in litigation led to an increase in the number of lawyers. 403 Others have even claimed that, until the mid-15th century, there were insufficient lawyers to meet client needs. 404 The hostility toward lawyers may have been an aspect of adjusting to general social and commercial changes.

Moreover, some have suggested that these extremely negative views of lawyers were exaggerated and the product of unwarranted prejudice, or even "a cliche" and "vulgar error" that was a "symptom" of the dominant role of lawyers and law in English life. 405 More needs to be understood about these attacks on litigation and lawyers, which requires more information regarding these attitudes and their broader social context.

C. A Final Fundamental Issue

These antagonistic medieval attitudes toward lawyers undoubtedly existed even though, as mentioned, their further study may be worthwhile. The discussion of the individual regulations and the general climate of opinion documented the recurring complaints. Numerous and diverse sources echoed this familiar refrain. These sources 403. See Brooks,supra note 8,. See Elton,supra note 393,at 283 & n.28. 405. See Elton, supra note 393, at 283; Ives, supra note 8, at 8-10, 22. Ives attributed the poor reputation of the legal profession to the fact that it was "ubiquitous and cohesive." Id. at 22. In discussing the latter half of the 15th and early 16th century, he opined that "on the evidence, case against the legal profession is at worst not proven." He believed that were both honest and dishonest lawyers and that their values and standards were comparable to society at large . See id. at 318. included official documents such as statutes, ordinances, royal writs and parliamentary petitions; medieval commentators such as Matthew Paris, the Mirror of the Justices, Britton, and Fleta; and subsequent scholars over three centuries such as Coke, Reeves, Hale, Maitland, Sayles, Plucknett, Holdsworth, and Brand; and literary works such as the 14th century poem, Chaucer, and Shakespeare. What is also remarkable is that these complaints were not confined to the medieval period and continued over time. In fact, they are strikingly similar to the common complaints about lawyers today in the United States. These hostile attitudes continued in England at least into the 18th century although they may have subsided today; and similar American attitudes have been evident since colonial times.

Numerous, diverse sources again reveal this continuing, repeated animus toward lawyers in both countries. In 1509, Ship of Fools, another poem, complained about excessive litigation resulting from "seek[ing] the extreme of law" due to "greed," "falsehood," and "guile." 406 Some lawyers even had provisions in their wills for restitution to people that they had wronged. 407 In 1581, "contemporary convictions about 406. For small occasion, for little greed and weakness, Unwise men strive, devizing falsehood and guile; Now every fool has set his mind and thought To seek the extreme of law. Sebastian Brant, Ship of Fools f.cxlix (Alexander Barclay trans. 1509 ) as quoted in Ives, supra note 8, at 8; A Literary History of England 351-53 (Albert C. Baugh ed. 1948). Subsequent historians may have undermined the credibility of these allegations of excessive litigation; and "frenzied preoccupation with the law" may be another explanation. See Ives, supra, at 7-9. Ship of Fools also attacked bribery by serjeants. See id. at 308. Ives noted instances of bribery, including some (one of Sir John Fortescue) involving John Fastold, perhaps a model for Shakespeare's Falstaff; and he noted religious attacks on lawyers. 407. See id. at 317. Brand attaches less significance to such provisions, stating that a normal inclusion in medieval wills and were not specific to professional wrongdoing. See Brand March 29, 1997 Of course, the rampant, sometime virulent, criticism of the legal profession in the last several years is legend. These repeated attacks on lawyers, which appear almost daily in the popular and professional press, in federal and state legislatures, and in political arenas, are sufficiently well known that specific illustrations are unnecessary.

Interestingly, these current complaints bear strong resemblance to the medieval litany: excessive litigation, greedy lawyers who create a demand for their services and whose misconduct and poor training exacerbate the harm. Hostility to lawyers is a public issue and a matter of major professional concern.

The professional responses to this matter might lead one to believe that these attitudes are a new or more serious problem. That conclusion would be inaccurate or at least significantly overstated. This hostility may be stronger or more widespread today than previously and these attitudes may ebb and flow over time. Nevertheless, there are sufficient examples in both England and United States to establish that these attitudes are not new, but longstanding. The fundamental point is that since the profession emergence in the 13th century, there has been a persistent hostility toward lawyers. Moreover, often the attack is not merely on excessive conduct and incompetent lawyers, but strikes at the basic litigation and advocacy function of lawyers. Moreover, the existence of some exceptions and lawyer praise do not negate this fundamental point.

Thus, this article concludes with the critical question of why. Some have sought to explain this phenomenon. Karl Llewllyn said, "this profession of law lacks popular London Ordinance of 1280

In the time of Gregory, Mayor of London, in the eighth year of the reign of King Edward, because that oftentimes there were some who made themselves countors, who did not understand their profession, nor had learnt it; as to whom, the substantial men of the city well perceived that through their ignorance the impleaded and the impleaders lost their pleas and their suits, in the Hustings and in the houses [courts] of the Sheriffs, and that some were disinherited through their foolish conduct; seeing that every one made himself a countor at his own will, such a one sometimes as did not know how to speak in proper language, to the great scandal of the Courts aforesaid which allowed them so to be, as also pleaders, and attorneys, and essoiners, and sometimes in the Sheriff's Court, assessors, and [thereby] each of them the judge of others, privily or openly; through which, right was intercepted by them:-the Mayor aforesaid, with his Aldermen, and other substantial men of the city, at the request of the serjeants and countors who understood their profession, and who therein felt themselves greatly aggrieved, has established that from henceforth such persons shall not be heard as do not reasonably understand their profession, and how becomingly to manage the business and the suits of the substantial men; and that such person shall hereafter be admitted by the Mayor and the substantial men aforesaid; saving nevertheless unto each reputable man such counsel as he shall wish to have, either from stranger or from relative, [and] such as he shall think proper to seek for his business. But that this ordinance and establishment shall hold good so far as our serjeants, attorneys, and essoiners, who generally frequent our Courts, and are constantly dwelling among us. And their will is, that each one hold his own estate, that is to say, that no countor be an attorney or an essoiner, and no essoiner a countor or an attorney.

The duty of a countor is as follows:-standing, to plead and to count counts, and to make proffers at the bar, without baseness, and without reproach and foul words, and without slandering any man, so long as the Court lasts. Nor shall serjeants or attorneys go further in front beyond the bar or the seat where their sitting is; nor shall any one be assessor, or sit near the bailiff, for delivering pleas or judgments, unless it so be that the principal bailiff who is holding the Court shall call him unto him; and in such case he shall make oath that he will support neither side.

Nor shall any countor, or any other man, counterplead or gainsay the records or the judgments; but if it appear to them that there is some error therein, according to the law and usage of the city let them make complaint or representation unto the Mayor, who shall redress the error, if there be one in the matter. No countor is to undertake a suit to be partner in such suit, or to take pay from both parties in any action; but well and lawfully he shall exercise his profession. No countor or other is to gainsay the judgments of the Hustings, or to go about procuring how to defeat the acts and the awards of the community. And that this they will do App. IV-1 the countors shall make oath.

He who shall be near the judge without being invited, or who shall counterplead the records and the judgments, [or] who shall slander another, if [it be] in the Sheriff's Court, shall be suspended for eight days, so that he shall count for no one, or else he shall be amerced by the Sheriff in half a mark. If [it be] in the Hustings, he shall be suspended for three Hustings or more, according to the offence. He who takes from both parties and is attainted thereof, shall be suspended for three years: where one takes [money], and then leaves his client, and leagues himself with the other party, and where one takes [money] and abandons his client, let such person return twofold, and not be heard against the client in that plea. He who goes about procuring how to defeat the awards or the judgments of the community, and is attainted thereof, shall be for ever suspended, and held as one perjured for ever. And the countor who undertakes a plea to partake in the demand, shall be for ever suspended, if he be attainted thereof. The attorneys are to have this same penalty [inflicted], if they contravene this ordinance, and be attainted thereof. If the attorneys, by their default or by their negligence, lose the actions of those whose attorneys they are, they are to have imprisonment, according to the Statute of the King. And no one who is an attorney shall be an essoiner, and no essoiner shall be an attorney, under the pain aforesaid.

Source: II Munimenta Gildhallae Londoniensis Part I, Liber Custumarum 280 (Henry T. Riley ed. Early 14th Century, 1967 reprint). This English translation appears at II Munimenta Gildhallae Londoniensis Part II, Liber Custumarum 595. Appendix V

Ordinance of 1292

Concerning attorneys and apprentices the king enjoined on John of Mettingham and his fellow-justices [of the Common Bench] that they should use their discretion to fix and ordain a certain number of these from each county, to be drawn from the better and the more respectable and those most willing to learn, those whom they understood would be of greatest value to the court and to the people; and that those whom they chose were to remain around the court and concern themselves with business there and others not. It seemed to the king and council that one hundred and forty would suffice but the justices may allow more or less than this as they think best. The justices are to use their discretion in dealing with the others.

Source: I Rotuli Parliamentorum 84, no. 22, 20 Edw. I (1292) (1767-77). The text is in latin. Dr. Paul Brand has graciously provided me with an english translation . Brand March 29, 1997 letter, supra note 311. App. V Appendix VI

Royal Writ of 1292

The king sent his writ to the justices of this court in the following words: Edward etc. to our beloved and faithful John of Mettingham and his colleagues, justices of the Bench, greetings. Since it is our wish that the ordinance recently made by you in our presence fixing the number of attorneys who are to act in the said Bench before you (many of our people having been troubled by the excessive number of attorneys and by the deceit and malice of many of those attorneys) be firmly observed before you in the same Bench in future, we order you for the future to observe it firmly in such a way as will seem to your discretion to be most conducive to the good and quiet of our people. If any attorneys not included in the quota presume to remain around the court you are to inform us of their names under your seal, so that we can take such steps to deal with this as may seem appropriate. Witness myself at Berwick on Tweed on 2 June in our twentieth regnal year.

Source: Robert Palmer, The Origins of the Legal Profession, 11 Irish Jurist 126, 139 n.71 (1976). Palmer reproduced the mandate in Latin. Dr. Paul Brand has graciously provided me with an english translation . Brand March 29, 1997 letter, supra note 311. App. VI Appendix VII Statute 4 Henry IV, Chapter 18 ITEM, For sundry Damages and Mischiefs that have ensued before this Time to divers Persons of the Realm by a great Number of Attornies, ignorant and not learned in the Law, as they were wont to be before this Time; It is ordained and established, That all the Attornies shall be examined by the Justices, and by their Discretions their Names put in the Roll, and they that be good and virtuous, and of good Fame, shall be received and sworn well and truly to serve in their Offices, and especially that they make no Suit in a foreign County; and the other Attornies shall be put out by the Discretion of the said Justices; and that their Masters, for whom they were Attornies, be warned to take others in their Places, so that in the mean Time no Damage nor Prejudice come to their said Masters. And if any of the said Attornies do die, or do cease, the Justices for the Time being by their Discretion shall make another in his Place which is a virtuous Man and learned, and sworn in the same Manner as afore is said: And if any such Attorney be hereafter notoriously found in any Default of Record, or otherwise, he shall forswear the Court, and never after be received to make any Suit in any Court of the King. And that this Ordinance be holden in the Exchequer after the Discretion of the Treasurer and of the Barons there.

Source: II Statutes of the Realm 138-39 (1810Realm 138-39 ( , 1963. This compilation has the statutes in the original medieval french and in the english translation reproduced above. App. VII