MY ANCESTOR WAS A... LAWYER
Mark Daly describes the two main tiers of the legal profession in the 1700s and 1800s – one respectable and one less so…
Mark Daly describes the two tiers of the legal profession in the 1700s and 1800s
The main professions involved in the law in the 18th and 19th centuries were the ‘ lower branch’ of attorneys and solicitors and the ‘upper branch’ of barristers (or ‘advocates’ in Scotland). Attorneys and solicitors had a broad workload while barristers specialised in particular areas of law. Both tended to be drawn from the educated classes, but barristers were the legal elite. Figures on the number of practising lawyers are unreliable but, in 1800, there were estimated to be 800 barristers to approximately 5,000 attorneys in England.
The lower branch
In a broad sense, lawyers have existed for as long as there has been a need to guide people through the complexities of the legal system but the specific roles that we now recognise developed in mediaeval times. Attorneys and solicitors (or, to use the Scottish terminology, ‘writers’ and ‘procurators’) represented clients in specific courts: the former in the Courts of
Common Law from the 13th century and the latter in the Courts of Chancery from the 15th century. Those offering their services as attorneys and solicitors were criticised for their lack of training and for encouraging the public to litigate. Writing in the 1600s, barrister William Hudson recounted that “In our age there are… a new sort of people called solicitors, [ignorant] of the law, who, like the grasshoppers in Egypt, devour…men’s estates by contention… prolonging suits to make them without end”. In Henry VI Part 2, Shakespeare knew he would raise a cheer from his audiences when he wrote: “The first thing we do, let’s kill all the lawyers!”
Matters improved with the Attorneys and Solicitors Act 1728 that required five years’ training with a qualified practitioner and introduced a registration system. The reputation of the professions was further enhanced with the establishment of the Law Society in 1825. The professions were merged in 1873 to create one, that of ‘Solicitor of the Supreme Court of England and Wales’, by which time the vocation had attained true respectability.
Back at the start of the 19th century, Jane Austen’s characters who were lawyers in the lower branch were still looked down on by respectable society, viewed as “vulgar relations” and “low connections”. In Pride and Prejudice, Elizabeth Bennet’s uncle is a mere country attorney, which does not improve her chances as a good marriage prospect! Mr Shepherd in Persuasion is a scheming lawyer of the lower branch.
Attorneys and solicitors would have met with their local clients to assist them with routine legal matters: wills and probate, conveyancing, trusts of money and land, contracts, bankruptcies, enforcing debts, the wardship of children, dispute resolution and representing clients in some local courts. For more important civil and criminal trials, they would prepare the ‘ brief ’ for barristers who would represent the client in the higher courts. The attorney or solicitor would have travelled the country on occasion, attending hearings in London and the regional courts, serving writs and gathering evidence. Until the 20th century, both branches were open only to men.
The life and work of your solicitor ancestor may also have been intertwined with that of the town in which he lived, helping the town grow and industry expand. As literate and educated men, attorneys and solicitors may have served as municipal officials or trustees or on parish vestries. Their names may appear in the private papers of the local landowners for whom they acted and they may have left wills themselves.
Then as now, income varied greatly between provincial solicitors and their urban counterparts. WJ Reader, in his book Professional Men (1966), estimated that £1,000 a year
Elizabeth Bennet’s uncle is a mere country attorney, which does not improve her chances as a good marriage prospect!
represented “modest prosperity” for a solicitor in 1850, with annual incomes exceeding £5,000 in rare cases.
The upper branch
While solicitors and attorneys were the public face of the legal profession, barristers led a more insular, metropolitan life. First appearing in the 13th century, they worked primarily at the Inns of Court, a collection of buildings clustered around the law courts in London. The Inns were like quiet Oxford colleges, in the heart of the city – well-regulated professional associations that were steeped in ceremony.
Solicitors and attorneys could set up partnerships and their practices were often passed on from father to son. Barristers, however, worked independently but they shared offices (known as ‘chambers’). The public had no right to employ them directly and they could only be instructed by solicitors or attorneys. Barristers would be involved if a legal case were to be heard in the upper courts or if a written opinion on a technical point of law were required by a solicitor or attorney. The route to becoming a barrister began in the same insular environment. Education was also at the Inns with its many coffee houses and less reputable temptations! In earlier centuries, training at the Inns was viewed as a form of finishing school where men were also instructed in matters such as dancing. “Many young men, who had chambers in the Temple, made a very good appearance in the first circles, and drove about town in very knowing gigs,” observed Edward Ferrars in Sense and Sensibility when considering training at one of the Inns. There was an anti-academic tradition in the English legal
system that meant that the common law was not taught at English universities until the mid-19th century. This contrasts with the tradition north of the border where for centuries well-to-do families had sent their sons to study law at universities in Scotland and on the Continent.
Opportunity for progression existed for barristers in a way that it did not for the lower branch. Barristers had to support themselves financially until they had established their reputation, which dissuaded many but the wealthiest families from suggesting their sons train at the Bar. However, with a reputation established, the rewards grew ( WJ Reader estimated income for junior barristers in 1850 at £500 to £1,200 a year, with five barristers known to be making £11,000 a year). Eminent barristers could be appointed as King’s (or Queen’s) Counsel and then as judges. Fame also beckoned for some barristers as Victorian newspaper readers devoured the gory or salacious details of notorious criminal and divorce cases.
Whether your ancestors were lowly attorneys or High Court judges, they will have left their mark on the society around them in a way that many other occupations would not have. The traces of their work are waiting to be found in the many surviving deeds and documents that they dealt with in their daily lives.