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Moral Panic at the English Bar: Paternal vs. Commercial Ideologies of Legal Practice in the 1860s

Published online by Cambridge University Press:  27 December 2018

W. Wesley Pue
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Abstract

This article examines a period of profound crisis about the English bar. The metaphor of “moral panic” is invoked in assessing the impact of five notorious cases of barristers’ misconduct which riveted public attention between 1859 and 1863. Four of the barristers involved were subjected to “professional discipline” in what was the first spate of disciplinary proceedings for breaches of bar “etiquette.” Professional “ethics” were applied in remarkably selective ways and amounted to a “shutting down” of laissez-faire professional practices. This was a crucial turning point in the English legd profession, and the effect was to transform the bar from a relatively open, unregulated status group into something akin to a rule-bound disciplinary regime.

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Articles
Information
Law & Social Inquiry , Volume 15 , Issue 1 , Winter 1990 , pp. 49 - 118
Copyright
Copyright © American Bar Foundation, 1990 

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References

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9 For this reason, and for others, I do not follow Peter Bartrip in endorsing the conceptualization of MacDonagh, O., “The Nineteenth Century Revolution in Government: A Reappraisal,” 1 Hist. J. 52–67 (1956).Google Scholar

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15 The central importance of notions of “constitutional liberty” in 19th-century English discourse about law is made clear in another context—the prosecutorial power—in Douglas Hay & Francis Snyder, “Introduction: Using the Criminal Law, 1750–1850,” in Hay & Snyder, Law, Labour, and Crime in Historical Perspective (London: Tavistock, 1987).Google Scholar

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39 “Art. IV.—The Etiquette of the Bar” (cited in note 30).Google Scholar

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41 “Questions Affecting Lawyers. County Courts—The Bar and the Attorneys—Professional Remuneration,” 43 Legal Observer, 13 Dec. 1851, at 107–9 (reporting lecture given in Gray's Inn by William D. Lewis); speech of J. Bulmer to the Metropolitan and Provincial Law Association, as reported in Birmingham J. & Commercial Advertiser, 25 Oct. 1855, at 3 col. 4 and in the Supplement to Birmingham J. & Commercial Advertiser, 27 Oct. 1855; “Opinions of the Press on the Proposed Law University,” 51 Legal Observer, 22 December 1855, at 146–47.Google Scholar

42 “The Bar and the Attorneys,” 45 Legal Observer, 20 November 1852, at 45–46; “Economical Considerations on the Autocracy of the Bar, and on the System of Prescribed Tariffs for Legal Wages, and on the Connection of these Two Subjects,”Metropolitan & Provincial Law Association, Circular No. 10, 34–59 (1856); “Counsel Practising in Several Courts,” 2 Solicitor's J., 20 February 1858, at 584; “Fees and Duties of Leading Counsel,” 2 Solicitor's J., 5 June 1858, at 642. “Bar Etiquette,”Solicitor's J., 8 Dec. 1860, at 90–91; “Meeting of the Provincial Law Association,”Aris's Birmingham Gaz., 13 Oct. 1860, at 5 col. 4 (address of Mr. Shaen on the Etiquette of the Bar).Google Scholar

43 See Pue, 16 Anglo-Am L. Rev. (cited in note 23); Junior, A, “Thoughts of a Junior on His Position and Prospects: With a Few Hints to Reformers” (pamphlet discussed in “Prospects of the Junior Bar,” 44 Legal Observer, 12 June 1852, at 114–16); 44 Legal Examiner, 3 July 1852.Google Scholar

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55 Kennedy had also, it appears, worked with Lord Denman in the Stockdale v. Hansard case. Denman later supported Kennedy's role as a reformer of the bar (see Pue, 16 Anglo-Am L. Rev. at 340–41 (cited in note 23)), for which Kennedy rewarded him with the poetic tribute, “The Late Lord Denman,” in Charles Rann Kennedy, Poems, Original & Translated (London: William Walker, 1857) (“Kennedy, Poems”).Google Scholar

56 See generally Pue, 5 Law & Hist. Rev. at 133 (cited in note 46).Google Scholar

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63 Id.Google Scholar

64 “Swinfen v. Lord Chelmsford—Extraordinary Case.”Daily News, 5 July 1859, at 6.Google Scholar

65 “Patience Swinfen v. The Right Hon. Lord Chelmsford,”Times, 15 July 1859, at 11.Google Scholar

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68 “Swinfen v. Lord Chelmsford—Extraordinary Case,”Daily News, 5 July 1859, at 6.Google Scholar

69 “Swinfen v. Lord Chelmsford—Extraordinary Case,”Staffordshire Aduertiser, 9 July 1859, at 6.Google Scholar

70 See: Swinfen v. Swinfen, 24 Beav. 549, 53 E.R., 470 (before the Master of the Rolls, Sir John Romilly); Swinfen v. Swinfen, 1 F. & F., 584; 175 E.R. (Staffordshire Summer As sizes, coram Byles, J.).Google Scholar

71 Accounts of the evidence are to be found in Times, 5 July 1859, at 11; Daily News, 5 July 1859, at 6; Morning Star, 5 July 1859, at 6; Times, July 6, 1859, at 11; Daily News, 6 July 1859, at 6–7; Morning Star, 6 July 1859, at 6; Staffordshire Advertiser, 9 July 1859, at 4; Supplement to the Birmingham Journal, 9 July 1859, at 4.Google Scholar

72 “Swinfen v. Lord Chelmsford—Extraordinary Case,”Daily News 6 July 1859, at 6–7.Google Scholar

73 “Swinfen v. The Right Hon. Lord Chelmsford,”Times, 6 July 1859, at 11–12, 12.Google Scholar

74 “Swinfen v. Lord Chelmsford,”Morning Star, 6 July 1859, at 6.Google Scholar

75 Kennedy, quoted in“Swinfen v. Lord Chelmsford,”Times, 9 Nov. 1859, at 11.Google Scholar

76 Lead article, Morning Star, 7 July 1859, at 4.Google Scholar

77 See, for example, “The Status of Counsel,”Solicitors' J. & Reporter, 20 June 1863, at 625–26; “Etiquette at the Bar,”Solicitors' J. & Reporter, 21 March 1863, at 380–81. A lead article in the Solicitors' J. & Reporter, 11 August 1866, at 977–78, even complained of “front rank” barristers “taking business with a deliberate intention of not attending to it.”.Google Scholar

78 “Swinfen v. Lord Chelmsford,”Morning Star, 5 July 1859, at 6.Google Scholar

79 Id.Google Scholar

80 “Swinfen v. Lord Chelmsford—Extraordinary Case,”Daily News, 6 July 1859, at 6–7, 6.Google Scholar

81 Id.Google Scholar

82 Kennedy himself shared much of this world view. He could not conceive of a world in which either England was unjust or barristers as a class corrupt. The central thrust of his arguments stressed that actions such as Chelmsford's were abberational and had a corrupting influence on an otherwise pristine system of justice. Kennedy had in fact long argued that the leaders of the bar and their policies were inconsistent with the larger interests of the British public. See generally, Pue, 5 Law & Hist. Rev. at 133 (cited in note 46); Pue, 16 Anglo-Am L. Rev. (cited in note 23).Google Scholar

83 “Swinfen v. Lord Chelmsford,” Times, 25 November 1859, at 9. The position here is expanded somewhat from that which they had adopted at the original trial. See “Swinfen v. Lord Chelmsford—Extraordinary Case,” Daily News, 5 July 1859, at 6. The change in emphasis is explained by the fact that the trial itself was defended by contesting facts as well as by arguing law. The subsequent heating on a motion for a new trial brought by Kennedy included an allegation that the judge had erred in charging the jury: “that a counsel might do anything if he did it honestly, and if what he did was for the benefit of his client.” (argument of Kennedy in “Swinfen v. Lord Chelmsford” Times, 9 Nov. 1859, at 11).Google Scholar

84 “Swinfen v. Lord Chelmsford,”Times, 25 Nov. 1859, at 9.Google Scholar

85 As to which see generally P. S. Atiyah, The Rise and Fall of the Freedom of Contract (Oxford: Clarendon Press, 1979), esp. at 230, 292–358; also Grant Gilmore, The Death of Contract (Columbus: Ohio State University Press, 1974), esp. at 6–7, 94–96.Google Scholar

86 “Swinfen v. Lord Chelmsford,”Times 9 Nov. 1859, at 11.Google Scholar

87 id.Google Scholar

88 “Swinfen v. Lord Chelmsford—Extraordinary Case,”Daily News, 6 July 1859, at 6–7, 6.Google Scholar

89 “Swinfen v. Lord Chelmsford—Extraordinary Case,”Staffordshire Advertiser, 9 July 1859, at 6.Google Scholar

90 Id.Google Scholar

91 Pue, 5 Law & Hist. Rev. at 133 (cited in note 46); Rondel v. Worsley, [1969] 1 A.C., 191.Google Scholar

92 “Swinfen v. Lord Chelmsford—Extraordinary Case,”Staffordshire Advertiser, 9 July 1859, at 6.Google Scholar

93 E.g., Daily News, 7 July 1859, at 4; Times, 7 July 1859 (quoted in Staffordshire Advertiser, 9 July 1859, at 4); “Current Topics,”Solicitors' J., 9 July 1859, at 673. For a contrary opinion see “History of the Week,”John Bull & Britannia, 9 July 1859, at 440.Google Scholar

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97 Times, 7 July 1859; also reported in Staffordshire Advertiser, July 9, 1859, at 4.Google Scholar

98 C. R. Kennedy, Swinfen v. Swinfen: Report of the Argument in the Common Pleas, in Michaelmas Term, 1856 at 19 (London: Richard Hatton, 1857).Google Scholar

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101 Lead article, Morning Star, 7 July 1859, at 4.Google Scholar

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105 “Current Topics,”Solicitors' J., 9 July 1859, at 673.Google Scholar

106 Id In all essential respects, the press commentary on the Swinfen v. Chelmsford case corresponds with the view presented in “The Reference,” a satiric poem published by Kennedy in Kennedy, Poems, 107–12 (cited in note 55).Google Scholar

107 Pue, 16 Anglo-Am. L. Rev. (cited in note 23).Google Scholar

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109 See “Swinfen v. Lord Chelmsford,”Times, 7 Nov. 1859, at 11; “Swinfen v. Lord Chelmsford,”Times, 9 Nov. 1859, at 11; “Swinfen v. Lord Chelmsford,”Times, 12 Nov. 1859, at 11 (granting rule nisi on Kennedy's motion.).Google Scholar

110 “Swinfen v. Lord Chelmsford,”Times, 24 Nov. 1859, at 11; “Swinfen v. Lord Chelmsford,” Times, 25 Nov. 1859, at 9; “Swinfen v. Lord Chelmsford,” Times, 26 Nov. 1859, at 11; “Swinfen v. Lord Chelmsford,”Times, 12 Jan. 1860, at 11.Google Scholar

111 “Swinfen v. Lord Chelmsford,”Times, 11 June 1860, at 11. Also reported or commented on in lead article, Daily News, 15 June 1860, at 4–5; “Law Intelligence. Swinfen v. Lord Chelmsford,”Staffordshire Advertiser, 16 June 1860, at 7; “The Case of Swinfen v. Lord Chelmsford,”Solicitors' J., 16 June 1860, at 638–39; “Law Intelligence. Court of Exchequer. Mrs. Swinfen's Action Against Lord Chelmsford,”Wolverhampton Journal & Herald, 16 June 1860, at 6; John Bull & Britannia, 16 June 1860, at 381.Google Scholar

112 “Responsibility of Counsel,”Solicitors' J., 30 June 1860, at 679–80.Google Scholar

113 “Law Intelligence. Court of Exchequer. Mrs. Swinfen's Action Against Lord Chelmsford,”Staffordshire Advertiser, 16 June 1860, at 7.Google Scholar

114 Gray's Inn, 12 Book of orders, 1855–1861, 6 June 1860, at 540, and 11 June 1860, at 542–43.Google Scholar

115 E.g., “Meeting of the Provincial Law Association,”Aris's Birmingham Gaz., 13 Oct. 1860, at 5 (report of an address by Mr. Shaen on the “Etiquette of the Bar”); “Bar Etiquette,”Solicitors' J., 8 Dec. 1860, at 90–91 (complaint of B. Blundell, FSA, that “The whole system of ‘tail briefs’ and needless fees is, however, based on wrong, since courts are constituted to redress the grievances of suitors, and not to swell the money bags of counsel”).Google Scholar

116 Times, 10 April 1861, at 9; Manchester Guardian, 11 April 1861, at 5; “The Fall of Mr. Edwin James,” 11 Saturday Rev., 13 April 1861, at 358.Google Scholar

117 “The Fall of Mr. Edwin James,”Saturday Rev., 13 April 1861, at 358–59, 358.Google Scholar

118 Inner Temple, Bench Table orders, 16 April 1861.Google Scholar

119 Id. The bench table on that date also received a “Report of Committee as to the expediency of established some authority to which all questions connected with the practice of the Bar may be referred.”.Google Scholar

120 Lincoln's Inn, Blackbook, No. 29, Special Council, 22 April 1861, at 141–47. The minutes of this date also record an extensive discussion of the problems of etiquette including how to determine what etiquette required and how it was to be enforced.Google Scholar

121 Inner Temple, Bench Table orders, 26 April 1861. Further discussions of James are to be found in the Bench Table Orders for May 7, 24, 28, 31, June 4, 7, 11, 18, 20, 26, July 4, 11, 18 (disbarred this date), Nov. 5, 31, 1861; Feb. 12, Apr. 22, May 9, June 13, 17, 1862.Google Scholar

122 “Current Topics,”solicitors' J. & Reporter, 20 July 1861, at 643.Google Scholar

123 “The Disbarment of Edwin James, Esq. Q.C.,”Solicitors' J. & Reporter, 8 February 1862, at 253.Google Scholar

124 “The Inner Temple Benchers—Disbarment of Edwin James, Q.C.,” 12 Law Mag. & Rev., 266 (1862). The Solicitors' Journal expressed the opinion that the article in the Law Magmine was likely written by a bencher: “Disbarment of Mr. Edwin James, Q.C.,”Solicitors' J & Reporter, 15 Feb. 1862, at 275.Google Scholar

125 “Disbarment of Mr. Edwin James, Q.C.,”Solicitors' J. & Reporter, 15 Feb. 1862, at 275.Google Scholar

126 “The Disbarment of Edwin James, Esq. Q.C.,”Solicitors' J. & Reporter, 8 Feb. 1862, at 253.Google Scholar

127 “Edwin James on the Trent Affair,”Solicitors' J. & Reporter, 14 Dec. 1861, at 103.Google Scholar

128 Spectator, 23 Nov. 1861, at 1283.Google Scholar

129 Id.Google Scholar

130 Solicitors' J. & Reporter, 22 Feb. 1862, at 285–86.Google Scholar

131 “The Disbarment of Edwin James, Esq. Q.C.,”Solicitors' J. & Reporter, Feb. 8, 1862, at 255.Google Scholar

132 On Victorian attitudes to debt see the excellent analysis in Dick Dunlop, “Debtors and Creditors in Dickens' Fiction” (forthcoming, Dickens Studies Annual).Google Scholar

133 “Disbarment of Mr. Edwin James, Q.C.,”Solicitors' J. & Reporter, 15 February 1862, at 276.Google Scholar

134 Agreement between Lord Yarborough and Edwin James, dated 8 Apr. 1861, as reproduced in “Disbarment of Mr. Edwin James, Q.C.,”Solicitors' J. & Reporter, 15 Feb. 1862, at 276.Google Scholar

135 “Disbarment of Mr. Edwin James, Q.C.,”Solicitors' J. & Reporter, 15 Feb. 1862, at 276.Google Scholar

136 “Mr. Edwin James,”Saturday Rev., 15 February 1862, at 185.Google Scholar

137 Testimony of Mr. Edwin Watkins before the Benchers of Inner Temple, as re ported in “Disbarment of Mr. Edwin James, Q.C.,”Solicitors' J. & Reporter, 15 February 1862, at 277.Google Scholar

138 As quoted in Id.Google Scholar

139 Id.Google Scholar

140 The Inner Temple, Bench Table Orders, 24 May 1861, includes an inserted printed copy of the Report of the Committee appointed to inquire into the Charges against Mr. Edwin James, Q.C.Google Scholar

141 Testimony of Watkins, as reported in “Disbarment of Mr. Edwin James, Q.C.,”Solicitors' J & Reporter, 15 Feb. 1862, at 277.Google Scholar

142 Id. (emphasis in original.).Google Scholar

143 Id.Google Scholar

144 Untitled article, Solicitors' J. & Reporter, 13 July 1861, at 626.Google Scholar

145 “The Disbarment of Edwin James, Esq. Q.C.,”Solicitors' J. & Reporter, 8 Feb. 1862, at 254.Google Scholar

146 Id. at 255.Google Scholar

147 Id. at 254.Google Scholar

148 Id. Also “The Career of a Q.C.,”Spectator, 8 Feb. 1862, at 150–51, sneeringly described him as a “leader in all actions for seduction, breach of promise of marriage, as sault, and false imprisonment, and in all cases which involved the reputation of an actress or a horse.” Moreover in 1852 a Charles Eicke had complained to the benchers, amongst other things, about James's conduct in taking a transfer of a prisoner's property for the purpose of making an arrangement with the prosecutor: Inner Temple, Bench Table Orders, 20 Apr. 1852, 9 Nov. 1852.Google Scholar

149 “Case of Mr. Edwin James,” 104 Ann. Reg., July 1862, at 140.Google Scholar

150 Times, 23 March 1849, at 6, reports that a legal wrangle developed from this in which James was accused of “the most unblushing bribery” of voters.Google Scholar

151 See Donald Daintree, “The Legal Periodical,” esp. at 123–28, 151–57 (cited in note 104).Google Scholar

152 32 Law Times, 1 May 1858, at 78.Google Scholar

153 “The Fall of Mr. Edwin James,”Saturday Rev., 13 Apr. 1861, at 359.Google Scholar

154 Id.Google Scholar

155 Id. at 358–59.Google Scholar

156 See, for example, “Societies and Institutions,”Solicitors' J. & Reporter, 7 Feb. 1863, at 265–66, reporting a lecture to the Law Amendment Society by G. Shaw-Lefevre on the “Discipline of the Bar” in 1863 in which he argued that the barristers' monopoly and immunities run contrary to sound principles of political economy and “the feeling of the age” and were justifiable only if “it can be shown that there is within the Bar itself a power of enforcing that discipline of its members, and carrying out those rules, sufficient to pre vent it from relaxing into the state of absolute freedom so much dreaded, and to supply the place of the legal consequences which would follow in other professions which have no such privileges and immunities” (at 266).Google Scholar

157 Letter of Allan Maclean Skinner, Judge of the County Court of Staffordshire, to the Treasurer, Lincoln's Inn, 12 July 1861, recorded in Lincoln's Inn, Blackbook, No. 29, Special Council, 7 Nov. 1861, at 231. (“Skinner Letter”).Google Scholar

158 Skinner Letter at 230.Google Scholar

159 The relative lack of restraint of junior barristers during the preceding decade is documented in Pue, 16 Anglo-Am. L. Rev. (cited in note 23).Google Scholar

160 Skinner Letter at 229–30.Google Scholar

161 Pue, 16 Anglo–Am. L. Rev. at 336–51.Google Scholar

162 Skinner Letter at 230.Google Scholar

163 Except where otherwise indicated, the account of Claydon's crucial run-in is taken from the Skinner Letter at 229–30. Further accounts of the proceedings are to be found in Lincoln's Inn, Blackbook, No. 29 as follows: Special Council, 14 Nov. 1861, at 241–45; Special Council, 3 Dec. 1861, at 269–85; Special Council, 6 Dec. 1861, at 286; Special Council, 12 Dec. 1861, at 297; Special Council, 13 Dec. 1861, at 298; Council, 13 Jan. 1862, at 319–20; Special Council, 14 Jan. 1862, at 323–24; Special Council, 24 Jan. 1862, at 33637; Adjourned Council, 19 Feb. 1862, at 359; Council, 25 Nov. 1862, at 492–94; and in Lincoln's Inn, Blackbook, No. 30, Adjourned Council, 15 Jan. 1863, at 26–29; Special Council, 19 Jan. 1863, at 35–37.Google Scholar

164 15 & 16 Vict., c. 54. s. 10. See discussion in Pue, 16 Anglo-Am. L. Rev. at 326–36 (cited in note 23).Google Scholar

165 Doe d. Bennett v. Hale, 15 Queen's Bench Reports, 171.Google Scholar

166 See Pue, 16 Anglo L. Rev. (cited in note 23).Google Scholar

167 Worcestershire Chronicle, 17 July 1861.Google Scholar

168 Claydon, who joined the Lincoln's Inn in 1835 reported: “Having no attorney patronage, … the profession proved ruinously expensive to me; for eighteen years I struggled on, assisted by the benevolence of my family and friends, until at last my own resources expended, and the patience and forbearance of my friends exhausted, I was driven to seek a livelihood as a provincial barrister.” Letter to Lord Westbury, Lord Chancellor, dated 22 February 1862, as quoted in “The Disbarment of Mr. Claydon,”Wolverhampton Spirit of Times, 15 Feb. 1862, at 105 (“Claydon to Westbury”).Google Scholar

169 See: C. R. Kennedy, Address to the Mutual Law Association 8–9 (Birmingham: John Tonks, 1852).Google Scholar

170 Letter of Claydon “To the Masters of the Bench of the Honourable Society of Lincoln's Inn,” dated Nov. 1861, as recorded in Lincoln's Inn, Blackbook, No. 29, Special Council, 3 Dec. 1861, at 270 (“Claydon Letter”).Google Scholar

171 Claydon to Westbury, “Disbarring a Barrister,”Morning Star & Dial, Tues., 18 Feb. 1862, at 8.Google Scholar

172 Petition of C. B. Claydon to Sir Alexander Cockburn, Lord Chief Justice of England; Sir Frederick Pollock, Lord Chief Baron of the Court of Exchequer: Sir William Erle, Lord Chief Justice of the Court of Common Pleas. Dated 27 Dec. 1862, and recorded in Lincoln's Inn, Blackbook, No. 30, Adjourned Council, 15 January 1863, at 28 (“Claydon Petition”).Google Scholar

173 Claydon Letter (cited in note 170).Google Scholar

174 Id. at 272.Google Scholar

175 Claydon to Westbury at 105; “Disbarring a Barrister,”Morning Star & Dial, Tuesday, 18 Feb. 1862, at 8.Google Scholar

176 Claydon Letter at 270.Google Scholar

177 Id. at 275.Google Scholar

178 This stands in contrast to the pattern discerned in the United States at the turn of the 20th century by Jerold S. Auerbach, Unequal Justice: Lawyers and Social Change in Modern America (New York: Oxford University Press, 1976).Google Scholar

179 Claydon Letter at 270 (cited in note 170).Google Scholar

180 Claydon to Westbury (cited in note 168).Google Scholar

181 Letter of Henry Matthews to J. Walker, Q.C., Treasurer of Lincoln's Inn, as re corded in Lincoln's Inn, Blackbook, No. 29, Special Council of 7 Nov. 1861, at 233–34; Lincoln's Inn, Blackbook, No. 29, Special Council, 14 Nov. 1861, at 241–45.Google Scholar

182 “Statement of the Oxford Circuit Committee,” as recorded in Lincoln's Inn Blackbook, No. 29, Special Council, 14 Nov. 1861, at 243.Google Scholar

183 Id. at 241.Google Scholar

184 Id.Google Scholar

185 Id. at 241, 242.Google Scholar

186 Id. at 242.Google Scholar

187 Id.Google Scholar

188 Claydon Letter at 271 (cited in note 170).Google Scholar

189 Id. at 274.Google Scholar

190 Id. at 275.Google Scholar

191 Id. at 276.Google Scholar

192 Id.Google Scholar

193 Id. at 275.Google Scholar

194 Lincoln's Inn, Blackbook, No. 29, Special Council, 24 Jan. 1862, at 336–37.Google Scholar

195 See “Etiquette and Morality of the Bar,”Worcestershire Chronicle, 17 July 1861 (reprinted from Staffordshire Advertiser); Skinner Letter (cited in note 157).Google Scholar

196 Claydon Letter (cited in note 170).Google Scholar

197 Lead article, Solicitor's J., 15 Feb. 1862, at 265; “The Disbarment of Mr. Claydon,”Wolverhampton Spirit of Times, 15 Feb. 1862, at 105; “Disbarring a Barrister,”Morning Star & Dial, 18 Feb. 1862, at 8; “A Barrister Disbarred.—The Law and Practice of County and Magisterial ourts,”Morning Star & Dial, 10 Feb. 1862, at 5 (letter from “Labeo”). In a lead article on 27 February 1862, the Morning Star & Dial at 4 states that this is the general impression of the case while expressing disbelief that direct client contact alone could have been the reason for such strong disciplinary action. The Wolverhampton Journal, 15 February 1862, at 1, reports the publication of Claydon's pamphlet on the matter and identifies six “charges” against Claydon without specifying which combination was de terminative of the benchers' result.Google Scholar

198 Claydon Petition at 28 (emphasis added) (cited in note 172).Google Scholar

199 Letter from “Labeo,”“A Barrister Disbarred.—The Law and Practice of County and Magisterial Courts,”Morning Star & Dial, 10 Feb. 1862, at 5.Google Scholar

200 Lead article, Morning Star & Dial, 25 Feb. 1862, at 4.Google Scholar

201 “Etiquette and Morality of the Bar,”Worcestershire Chronicle, 17 July 1861 (re printed from Staffordshire Advertizer).Google Scholar

202 “The Disbarment of Mr. Claydon,”Wolverhampton Spirit of Times, 15 Feb. 1862, at 105; “Disbarring a Barrister,”Morning Star & Dial, 18 Feb. 1862, at 8.Google Scholar

203 Lead article, Solicitors' J., 15 February 1862, at 265.Google Scholar

204 Lead article, Morning Star & Dial, 27 Feb. 1862, at 4.Google Scholar

205 Id.Google Scholar

206 See also the evidence of division referred to in Pue, 16 Anglo-Am L. Rev., at 330–32, 340–41 (cited in note 23).Google Scholar

207 On the educational attainments of the attorney's branch see Pue, 33 Am. J. Legal Hist. (cited in note 35).Google Scholar

208 Parliament of the Middle Temple, 26 April 1861, records receipt of letter from Serjt. Mannings (Treasurer of Serjeants Inn) indicating that when Seymour had applied for the order of the coif “some doubts were entertained as to the fitness of the applicant to become a Member of Serjeants Inn” and reporting the findings to the Middle Temple benchers, “who may be called upon to decide upon an application of a character somewhat similar.”.Google Scholar

209 The judgment was “screened” (posted) in the hall of Middle Temple and copies were circulated to the three other Inns of Court. See Parliament of the Middle Temple, 15 Jan. 1862 (ff. 152–57); 17 Jan. 1862 (f. 163); 21 Feb. 1862 (ff. 187–190). While the benchers had decided not to release the text of the judgment to the Times, it appeared in the Morning Star & Dial within a week of their 21 February 1862 meeting.Google Scholar

210 Following his disciplinary hearing before the benchers Seymour was described by the Spectator, 6 Dec. 1862, at 1351, in these terms: “Mr. Seymour is no obscure person. He is still a member of Parliament and a Queen's counsel. He holds a judicial post, if not of very great emolument, yet of great dignity and importance. He is in the class from which even judges are selected.”.Google Scholar

211 Seymour had been refused admission to the order of serjeants by Lord Chancellor Campbell and had declined to seek election to the bench of his Inn, both of which were taken by contemporaries as evidence that he was considered unworthy by leading barristers: “Mr. Digby Seymour's Case” Times, 27 June 1862, at 2 (letter).Google Scholar

212 “Mr. Digby Seymour and the Middle Temple Benchers,”Saturday Rev., 1 March 1862, at 226.Google Scholar

213 Letter dated 16 April 1861 from Serjeant Manning to the treasurer of Middle Temple, as recorded in minute books for the Parliament of the Middle Temple, 26 April 1861. [“Manning letter”.].Google Scholar

214 Parliament of the Middle Temple, 3 May 1861 (Committee consisting of Treasurer, Sir Wm. Alexander, White, Rodwell, Sir F. Slade, Bagshaw, Bovill, any three constituting a quorum).Google Scholar

215 The attitude of some of the benchers toward Seymour's business ventures is reflected in the following passage from the original committee report (this passage was not, however, approved by the full bench table): The Masters of the Bench would fail in the performance of their duty if they did not state their concurrence in the opinion frankly and honorably expressed by your Counsel Mr. Lush that you have tried the unfortunate enterprize of mixing yourself up with speculations which he would not hesitate to say in your presence no gentleman, no Barrister especially, would engage in—because though they have for their object the getting rich by a short road, they involve a risk of a mans morals as well as of his means. The assurance that was given us by your Counsel, that you have long ceased to be connected with such transactions, we accept as a pledge of the uprightness of your conduct in the future. As recorded in Parliament of the Middle Temple, 15 January, 1862.Google Scholar

216 Seymour subsequently published a full account of the proceedings in William Dibgy Seymour: The Middle Temple Benchers; & the Northern Circuit Committee (London, 1862).Google Scholar

217 Lead article, Morning Star & Dial, 25 Feb. 1862, at 4.Google Scholar

218 Judgment of the Middle Temple Bench as recorded in Parliament of the Middle Temple, 15 Jan. 1862 (ff. 152–7).Google Scholar

219 Letter of Seymour “To the Honourable the Treasurer and Masters of the Bench of the Middle Temple,” dated 3 Feb. 1862, and printed in “Mr. Digby Seymour and the Benchers,”Morning Star & Dial, 26 Feb. 1862, at 8 (“Seymour Letter”).Google Scholar

220 Judgment of the Bench of the Middle Temple in the case of Digby Seymour, Parliament of the Middle Temple, 15 Jan. 1862 (ff. 152–57). Also recorded in Lincoln's Inn, Blackbook, No. 29, Adjourned Council, 12 March 1862, at 375–77, 377.Google Scholar

221 John Pym Yeatman, To the King's Most Excellent Majesty, 17 March 1907. The High Court of Justice Chacery Division. Mr. Justice Kekewich. Derbyshire to Wit. The humble Petition of John Pym Yeatman of Lincoln's Inn…, at 5 (“Yeatman, To the King's Most Excellent Majesty”).Google Scholar

222 Id. at 5–6: “Mr. Price at once endeavoured to prevent Mr. Seymour from publishing his name on the Midland Bar List, and Mr. Macaulay, the then Leader, struck it out, but an immediate appeal to the Judges, brought these gentlemen to their senses, and they were compelled to restore it.”.Google Scholar

223 Among the benchers voting on the particular charges against Seymour more or less established voting patterns developed, although most benchers varied somewhat in their voting from issue to issue. Almost uniformly, however, Masters Karslake and Bovill sided with Seymour, while Masters Monk and (especially) Slade voted against him. See Parliament of the Middle Temple, 10 Jan. 1862 (evening) (ff. 148–51).Google Scholar

224 Seymour Letter (cited in note 219).Google Scholar

225 “Legal Courts of Honour,”John Bull, 15 Feb. 1862, at 105. See also lead article, Solicitors' J., 15 Feb. 1862, at 265 (Mr. Seymour “did not hesitate to impute the entire proceeding against him to professional rivalry”); Yeatman, To the King's Most Excellent Majesty at 5 (cited in note 221) (Seymour is described as “an orator of great power, and his intellectual superiority (just as in Mr. Kennedy's case) had excited the envy and hatred of his mediocre fellows”).Google Scholar

226 A. Newton,”‘The Star Chamber’ of the Middle Temple,”Morning Star & Dial, 27 Feb. 1862, at 3.Google Scholar

227 “Legal Courts of Honour,”John Bull, 15 Feb. 1862, at 105.Google Scholar

228 Seymour had, indeed, had to take the unusual step of declining to seek election to the bench of his Inn when it was first possible because, he said, of financial insecurity. See “Mr. Digby Seymour's Case,”Times, 27 July 1862, at 9.Google Scholar

229 It might be thought improbable that a barrister might rise to the status of Queen's Counsel without professional patrons. The process by which individuals were awarded silk in the 19th century is mysterious. One law journal in any event felt that in Seymour's case the motivations did not reflect well on either Seymour or those who appointed him. In “Case of W. Digby Seymour, Q.C., M.P.” 13 Law Mag. & Rev.; Q.J. of Jurisprudence at 166 (1862), this is explained in terms of crass political expediency: “Lord Palmerston's present administration has probably never numbered a working majority…. It probably became necessary to secure every doubtful adherent, and this consideration may palliate, but cannot excuse, the promotion of Mr. Digby Seymour to the rank of Queen's Counsel…. [W]e have heard char Lord Campbell, shortly before his death, expressed his deep regret that he had ever been led by political pressure to promise a silk gown to the member for Southampton.”.Google Scholar

230 Parliament of the Middle Temple, 15 Jan. 1862 (f. 152–57).Google Scholar

231 Lead article, Morning Star & Dial, 25 Feb. 1862, at 4.Google Scholar

232 “Mr. Digby Seymour and the Middle Temple Benchers,”Saturday Rev., (1 Mar. 1862, at 226; “Legal Courts of Honour,”John Bull, 15 Feb. 1862, at 105.Google Scholar

233 Generally on this case see Pue, 5 Law & Hist. Rev. at 152–73 (cited in note 46) and the sources cited therein.Google Scholar

234 C. R. Kennedy, Mr. Kennedy's Argument in the Common Pleas against the Rule Obtained by the Defendants in Kennedy v. Broun and Wife 29–37 (Birmingham: S. B. Howell, 1862 (“Mr. Kennedy's Argument”)). See also the report in Times, 13 June 1862.Google Scholar

235 Id. at 37 (side note).Google Scholar

236 Id. at 38–43.Google Scholar

237 Id. at 43–45.Google Scholar

238 Id. at 44.Google Scholar

239 Id. at 56.Google Scholar

240 Id. at 52–53.Google Scholar

241 Id. at 53.Google Scholar

242 Id. at 13.Google Scholar

243 Id. at 17. Kennedy at 17–18 quoted the authority of Lord Mansfield in support of the view that strict adherence to the law of maintenance would deprive the poor of their rights: Goodright v. Forester, 1 Taunt. 613.Google Scholar

244 Id., side note, at 15.Google Scholar

245 Id.Google Scholar

246 Id. at 32. Indeed, in the course of a discussion of Roman practice, Kennedy as serted that any inhibition of contractual freedom between counsel and client was “contrary to natural justice and opposed to the exigencies of society.”Id. at 28.Google Scholar

247 Id. at 45.Google Scholar

248 Id. Only three years earlier, during the Swinfen v. Lord Chelmsford litigation, Chief Baron Pollock had admitted the legality of express contracts between client and barrister. Id. at 46.Google Scholar

249 Id. at 55.Google Scholar

250 Id.Google Scholar

251 Id.Google Scholar

252 Id. at 3, 26.Google Scholar

253 Id.at 56. The Legal Observer, 25 May 1850, at 63–64, had complained about “Bird,” a local barrister in Exeter, taking County Court cases without the intervention of an attorney and threatened such barristers with suit for unauthorized practice. Similarly, a letter entitled “The Junior Bar and the Attorneys,” 20 Law Times, 27 Nov. 1852, at 110, threatened the prosecution of barristers for unauthorized practice if they conducted the whole cause in their cases. It appears that the threat was made good on at least one occasion. See “The County Court Bar Meeting,” 43 Legal Observer, 6 Mar. 1852, at 348–50: “Persons who should so act [i.e., take instructions directly from clients] may either be indicated and convicted, as was done by the Kent Law Society or may be subjected to an application in a summary way for contempt of Court, or may be disbarred, as lately happened to a member of Gray's Inn.”.Google Scholar

254 Mr. Kennedy's Argument 56 (cited in note 234).Google Scholar

255 Id. at 56–57.Google Scholar

256 Id. at 59.Google Scholar

257 Id.Google Scholar

258 See generally, Pue, 5 Law & Hist. Rev. 133 (cited in note 46).Google Scholar

259 “The Status of the Bar,”Saturday Rev., 24 Jan. 1863, at 105.Google Scholar

260 Id This article was responded to by Charles Kennedy's son Edmund who accused the Saturday Review writer of animus and mustered logical counterarguments which need not detain us here. See Daily Telegraph, 28 Jan. 1863; reprinted in The Birmingham Daily Gm., 29 Jan. 1863, at 3.Google Scholar

261 Lead article, Times, 2 Apr. 1862, at 9.Google Scholar

262 Id Kennedy responded to this lead article in a letter published as “Kennedy v. Broun,”Times, 5 Apr. 1862 at 5.Google Scholar

263 Lead article, Daily News, 1 Apr. 1862, at 4; “News of the Day,”Birmingham Daily Post, 3 Apr. 1862, at 2; “Counsel and Client.—Kennedy v. Broun and Wife.”Solicitors' J. & Reporter, 5 Apr. 1862, at 410–12; Lead article, Solicitors' J. & Reporter, 12 Apr. 1862, at 427; “The Swinfen Case,”Aris's Birmingham Gar., 5 April 1862, at 4. More general support for vigorous bar discipline was recorded in “Societies and Institutions,”Solicitors' J. B Reporter, 7 February 1863, at 265–66.Google Scholar

264 Lead article, Birmingham Daily Gaz., 25 Feb. 1863, at 2.Google Scholar

265 Lead article, Birmingham Daily Gaz., 19 Jan. 1863, at 2. The Times and Law Times too, although not generally as supportive of Kennedy in this phase of his career, had expressed the opinion that the notion of honorarium was absurd. See “Law Summary,”Birmingham Journal, 31 Jan. 1863, at 7. See, to similar effect, Lead article, Ark's Birmingham Gaz., 21 June 1862, at 5 (arguing that a barrister should be paid like a “shopkeeper”!); Lead article, Birmingham Daily Gaz., 19 January 1863, at 2 (highly critical of noncommercial rules of etiquette).Google Scholar

266 “Mr. Kennedy and his Judges,”Spectator, April 12, 1862, at 402–403.Google Scholar

267 “Private Correspondence,”Birmingham Journal, 24 Jan. 1863, at 6. Similarly, in “The Case of Broun v. Kennedy,”Solicitor's J. & Reporter, 13 Feb. 1864, at 281–82, commented: “We are unable to applaud the success of one party, and a true fidelity to our profession forbids us to sympathize with the discomfiture of the other.”.Google Scholar

268 Lead article, Morning Star & Dial, 1 Apr. 1862, at 4.Google Scholar

269 “The Lady and the Lawyer,”John Bull, 5 Apr. 1862, at 216–17.Google Scholar

270 “The End of the Broun-Kennedy Case (From Times),”Ark's Birmingham Gaz., 6 Feb. 1864. at 7.Google Scholar

271 John Pym Yeatman reports: “the Circuit cited Mr. Kennedy before the Benchers of the Inner Temple” in John Pym Yeatman, The Professorship of the Law Department of the Queen's College, Birmingham: A letter to the Council and Governors. (Birmingham: M. Maher & Son, 1869) (“Yeatman, The Professorship”). The Midland Circuit Mess seems to have been especially active in policing barristers' conduct in this period. See Yeatman, To the King's Most Excellent Majesty (cited in note 221). See also “The Rearrangement of the Circuits,”Solicitor's J. d Reporter, 2 Jan. 1864, at 157, observing that “[o]ne who knew the Midland Circuit well, and has since, in another capacity, gone to the Northern, describes the Midland as equal to the Northern, minus York and Liverpool—in other words, deducting five week's work.” This may suggest peculiar economic motivations for restrictive practices on the Midland circuit.Google Scholar

272 Inner Temple, Bench Table Orders, 15 Apr. 1864.Google Scholar

273 The three charges are recorded in Inner Temple, Bench Table Orders, 20 May 1864.Google Scholar

274 If Yeatman's own evidence is to be accepted on this point. Yeatman, To the King's Most Excellent Majesty 6 (cited in note 221).Google Scholar

275 See generally the Inner Temple, Bench Table Orders for 10 June 1864 (letter of Kennedy referring to “Analysis of my refutation of the Common Pleas judgment”); 28 June 1864 (including “Mr. Kennedy's Further Explanations”).Google Scholar

276 Inner Temple, Bench Table Orders, 28 June 1864.Google Scholar

277 “The Discipline of the Bar”Solicitors' J. & Reporter, 3 Dec. 1864, 109.Google Scholar

278 Yeatman, The Professorhip 22 (cited in note 271).Google Scholar

279 Anthony Harwood, Q.C., “A Hundred Years of the Midland Circuit” (manuscript lodged with the Bodelian Library; pages are unnumbered), Adjourned Circuit Court, Warwick, 24 Mar. 1863. The significance of the decision to restrict Kennedy's sharing of briefs to cases in which he received special fees is indicated in correspondence between the Midland Circuit Mess and the Northern Circuit on 13 March 1862, which set special fees in the amount of 300 guineas for Q.C.'s, 100 guineas for leading juniors, and 50 guineas for others (Minutes of the Midland Circuit Mess, 13 March 1862).Google Scholar

280 Anthony Harwood, Q.C., id at Derby, 17 July 1865 (Gibbons); Derby, 7 March 1867 (Yeatman). General accounts of Kennedy's professional struggles are to be found in Yeatman. The Professorship at 22–23 (cited in note 271); Charles Rann Kennedy, To the Legal Profession and the Public. Bar Unionists (this pamphlet does not seem to have survived as published but is reproduced, apparently in full, in Yeatman, The Professorship 23–26); Yeatman, To the King's Most Excellent Majesty at 7 (cited in note 221).Google Scholar

281 Yeatman, To the King's Most Excellent Majesty 7 (cited in note 221). Obituaries of Kennedy were carried in Solicitors' J. & Reporter, 28 Dec. 1867, at 182; Aris's Birmingham Gat:, 21 Dec. 1867 at 6; Birmingham Journal, 21 Dec. 1867, at 7; Law J., 20 Dec. 1867, at 557; Staffordshire Advertiser, 21 Dec. 1867, at 5; Wolverhampton Journal, 28 Dec. 1867, at 2.Google Scholar

282 The point here is at one with what Christopher Norris calls “the most important point to grasp about deconstruction. There is no language so vigilant or self-aware that it can effectively escape the conditions placed upon thought by its own prehistory and ruling metaphysic.” Christopher Norris, Deconstruction: Theory and Practice 21–22 (London: Methuen, 1982).Google Scholar

283 The political conditions which produced significant House of Commons support for sweeping change in the bar are unclear. An observation made by James Stephen in his 1851 pamphlet, Bar Etiquette (In Reference to the Rule Requiring the Intermediary Agency of an Attorney between Counsel and Client) 25 (London: Butterworths, 1851), is, however, suggestive: “And this leads us to make some remarks upon the general aspect of the Bar at the present crisis, assailed as it is by country gentlemen in the House of Commons, mischievous generally in proportion to the grossness of their ignorance upon this subject, vituperated or ‘damned with faint praise,’ in articles, often written by barristers, who, having failed in the pursuit of their profession, not unnaturally undervalue its importance, and intrenched on, as it has been of late, in its own peculiar province of advocacy, by a new body of men known as attorney advocates” (emphasis in original).Google Scholar

284 See Pue, 16 Anglo-Am. L. Rev. (cited in note 23).Google Scholar

285 Yeatman, The Professorship 26 (cited in note 271).Google Scholar

286 See Aris's Birmingham Gaz, 11, 13 July 1859.Google Scholar

287 “The Swinfen Case,” 5 Apr. 1862, Ari's Birmingham Gaz., at 4.Google Scholar

288 This is the way an illustration of James at the camp of Garibaldi which appeared in the Illustrated London News was characterized by Solicitors' J. of 29 Dec. 1860, at 142.Google Scholar

289 Auerbach, Unequal Justice (cited in 178).Google Scholar