Numbers

Those who have studied its composition in the eighteenth and nineteenth centuries have experienced considerable difficulty in distinguishing the bar in the broader sense, those who were entitled to call themselves barrister-at-law, from the practising bar, who sought to make their living as barristers. The distinction was important to the bar. In the 1890s, for example, controversy arose when some reformers wished to reconstitute the Bar Committee so as to represent the interests of the practising bar rather than a broader constituency. The size of the bigger group can be estimated quite closely, but the size of the practising bar is uncertain.¹

Around 40 men a year were called to the bar in the eighteenth century, about one-quarter of those admitted to the inns, but even among those called were many who did not intend to practise, including heirs to estates who wanted to pick up a smattering of legal knowledge to assist them in their role as landowner, magistrate, and perhaps MP. Others set out to practise but were deflected either by acquired wealth, an attractive office or a more palatable occupation.²

The number of regular practitioners barely exceeded 300,³ but the profession was growing and growth continued unabated until the accession of Victoria. Admissions, averaging 1571 in the first decade of the century, reached 3105 in the third, when the proportion who were called approached one in two. From the 1860s that settled at two-thirds, so the expansion was driven by an influx of men with at least a provisional intention of practising rather than gentlemen rounding off their general education.⁴

(p.1018) Contemporaries were in no doubt that such an expansion threatened traditional ways and far outstripped the business available. The 1840s were full of warnings about the dire state of the bar, threatened by eager and often necessitous newcomers and by the creation of county courts and recent procedural reforms in the superior courts.⁵ In the short term, perhaps partly because the warnings did deter some, the incoming tide receded. Admissions and calls fell dramatically before a more gentle rise resumed after 1860. In the last quarter of the century numbers were surprisingly constant, and then came another great spurt, with 503 men called in 1913.⁶

Contemporaries often overestimated the number actually in practice. The Law List was apt to mislead and after 1840 it did not distinguish practitioners from others.⁷ Estimates of the former were necessarily vague. In 1850 the Attorney-General could only tell an inquiry that they were between 100 and 1000,⁸ and the best scholarly estimate has parameters of 450 to 1010 for 1835 and 660 to 1450 in 1885. Since this does not include anyone over 65, which was not the end of all careers, it is a slight underestimate, but it can be assumed that the practising bar more than doubled over the course of the nineteenth century.⁹

Duman is probably right to stress that most of the fluctuations in size were the result of exogenous factors, in particular economic change and population growth, although the prolonged slump in admissions from 1837 to 1857 requires further explanation. There were fluctuations in the main pool—young men from about 18 to 25 educated at a public school and/or university—from whom the inns drew students, and apparently an excess of educated men in parts of Europe in the 1820s and 1830s. English population growth outstripped the capacity of suitable occupations until the rise of newer professions such as architect, surveyor, engineer, and accountant relieved pressure on the more traditional ones.¹⁰ The popularity of the traditional alternatives also varied. Prospects in the armed forces after the Napoleonic Wars were bleak indeed and when the church roused itself from Augustan lethargy, its appeal to the less ardent university men may have diminished. Towards the end of the century the competition for government and professional posts became ever more intense as the output of the multiplying public schools increased.¹¹

(p.1019) There is also the matter of public image, so central a preoccupation of the bar. Writers addressing would-be students never failed to stress the arduous nature of the calling and the long odds against success, yet E. D. Purcell was inspired rather than deterred by Edward Cox’s presentation¹² and even the ‘brutal realism’ of Rouse Ball was not wholly discouraging; the earlier editions of his work assured readers that ‘given health, time, industry, and perseverance, everyone of ordinary abilities may reasonably rely on securing a competency’.¹³ Some fathers, like W. V. Ball’s, saw the bar as the avenue to many jobs in the public service and barrister friends sometimes encouraged men they thought could succeed, as F. A. Philbrick did Barnard Lailey.¹⁴ However, the bar had a bad press for much of the century, especially in the immensely influential Times and the widely read Punch, and J. G. Witt’s parents were probably not alone in having a horror of the whole legal establishment.¹⁵ Yet accusations of cupidity and exploitation were as likely to attract men by the prospect of big earnings as to repel them, and the publicity which surrounded leading counsel in celebrated murder trials, from Palmer to Crippen, and in a few sensational civil actions, especially the Tichborne case, cast a glamour over the whole profession. The bar could be a route into politics, as it was for Robson and Asquith,¹⁶and for those undecided about a career, like Frederic Harrison, or hoping to make a living from their pen, like Crabb Robinson, it was a convenient base.¹⁷ Not least of its attractions was that entry was easy: J. W. S. Armstrong, for instance, went to the bar after failing the Foreign Office examination.¹⁸

The loose-knit structure of the bar made any institutional response to overcrowding difficult. Sometimes individually, occasionally in concert, the inns did put in place some fresh obstacles. Disqualifying occupations, mostly those connected with the law or ‘trade’, were expanded and in 1829 the Inner Temple examined candidates in classics and ‘general subjects of a liberal education’. Other inns did not follow suit and rather than lose students the Inner quietly dropped it in the 1840s.¹⁹ Later examinations were not used to restrict entry. Not only would (p.1020) such a policy have been contrary to the bar’s own conception of itself, but it would have been impossible to reach agreement on suitable criteria.

Composition

According to Duman, 8.7 per cent of the 1835 bar were Irish, 4.1 per cent Scottish, and 1.6 per cent Welsh, totalling one-seventh of the whole. In 1885 they comprised 7.9, 5.9, and 2.9 per cent respectively, making up one-sixth.²⁰ Some were sensitive about their nationality. John Campbell felt that J. A. Park discredited his countrymen by his ‘extreme obsequiousness’,²¹ while the Irish were noted in the early nineteenth century for a distinctively flamboyant style of advocacy. Digby Seymour claimed in the mid-century that he was the victim of anti-Irish prejudice on the northern circuit,²²though it did not hold back Russell and Carson; Tim Healy, however, was one who failed to get business in England.²³

After the disappearance of students from the American colonies there was no substantial colonial presence at the English bar until the 1860s, though there were a few West Indians, among them Anthony Hart.²⁴ This changed with an influx of Indians, and others from the east, particularly to the Middle Temple, which began to assume a very cosmopolitan air. Their abstemiousness from alcohol made them desirable dinner companions to the more thirsty English students²⁵ and Frederic Harrison was greatly impressed with their academic prowess, claiming that in one year the best three were ‘a Japanese, a Madras Mussulman, and a Hindoo’.²⁶ They did, however, meet disapproval when many of the Indians, most famously M. T. Gandhi, openly supported Indian nationalism.²⁷ Most returned home to practise, though Dube overcame the additional difficulties his race created to carve out a good practice in the Privy Council. ‘Old King Cole’ from the Gold Coast was another who tried his hand in England.²⁸

(p.1021) The incentive offered in 1762 to university graduates of call after three years rather than five led to something of an ‘aristocratic resurgence’ at Lincoln’s Inn²⁹ but the longer term trend for the sons of men from the older professions—church, army, law—to dominate, soon resumed, leading Byerly Thomson to insist that the bar was ‘more than ever a profession of the middle class’.³⁰ Though men from landed backgrounds (generously interpreted) still made up over 40 per cent of those at the bar in 1835, 50 years later, and in a much larger profession, they had fallen to a third, and formed only one-quarter of the practising bar. Moreover, they were now more often younger than elder sons and came mostly from the less prosperous gentry. If the somewhat hazy categories of Inner Temple admissions can be relied upon, then even under the very broad description of ‘gentleman’, they had almost disappeared by the Edwardian era.³¹

In their place came sons of businessmen and, in greater numbers, of professional men. The law was not a caste, but from the 1830s one-quarter of students had a father in the law and given the advantage this gave them, it is hardly surprising that they figure more strongly among the successful than in the bar at large.³² Fears arose that the higher branch was being swamped by sons and relations of the lower,³³but in fact connections of barristers always outnumbered those of solicitors. For much of the century the clergy continued to provide as many entrants as all the other (non-legal) professions put together but there was a marked decline by the end.³⁴

What remained constant was the near absence of the lower orders of society, not only labourers and industrial workers, but even artisans and small shopkeepers. Much was made of the fact that men of humble origins like Sir Edward Clarke could rise to the top of the profession, but Clarkes were few, and that may have owed more to the intimidating image of the barrister as a gentleman than to the barriers the inns erected to preserve a measure of social exclusivity, for being essentially financial they were as likely to deter sons of poor clergy and half-pay officers as tradesmen.³⁵ Young men of slender means would endure hardship and use great initiative to pursue their chosen career and it is noteworthy that(p.1022) Lincoln’s Inn could not sustain its ban on journalism, which kept the wolf from many a door.³⁶

Education

A Georgian barrister was as likely to have been educated at home as at school,³⁷ but this changed as more public schools opened to provide an education geared to university entrance. Judges, and probably the bar in general, came increasingly from public schools but the proportion from the old elite schools fell.³⁸ Nevertheless, it was still a help to be an old Etonian or Wykehamist, since the disposal of minor offices so useful to a young barrister was often vested in someone from the old school.

A bigger and more significant change was the dramatic rise in the number of ‘varsity men’.³⁹ In Victoria’s reign it became very much the done thing to go to university, and for an aspiring barrister this was perfectly compatible with qualifying for the bar. It was not uncommon to enrol at an inn while still an undergraduate and not unknown to do it the other way around.

The bar became a predominantly graduate profession, graduates rising from 58 per cent to 70 per cent between 1835 and 1885, though with curiously large variations between the inns; Inner Temple and Lincoln’s reached very high levels while Grays was only 33 per cent in 1913 and the Middle Temple fell sharply, from 61 per cent in 1890 to just 24 per cent in 1910.⁴⁰ The big Oxford and Cambridge colleges continued to dominate the bar and especially the judiciary.⁴¹ Trinity College, Dublin provided a steady stream of Irishmen and as the century went on London University began to make an impact, perhaps a socially distinctive one. Graduates in law remained a small (and by and large undistinguished) minority.⁴²

The predominance of university men at the bar had a considerable effect. It gave plausibility to the bar’s claim to be a gentlemanly and cultivated profession without the bar having to impose its own qualifications. In particular, it helped (p.1023) maintain the social gap between the bar and the solicitors which was essential to the bar’s collective self-esteem, and perhaps to preserve social cohesion as the profession expanded, by providing a common culture, albeit at the expense of the non-university minority.

At an individual level the value of a university education is more difficult to evaluate,⁴³ but it furnished contacts which might be crucial in the difficult early years; for instance, F. E. Smith as Chancellor was reckoned to favour members of his old college (Wadham).⁴⁴ A university career garlanded with distinctions certainly generated some momentum, and the insistence with which contemporary publications record them suggests they were viewed as important indicators of potential forensic prowess. And for some of the most distinguished students there was a tangible advantage in the shape of a university fellowship bringing in several hundred pounds a year with a minimum of duties.⁴⁵

Pupillage

Pupillage emerged in the 1770s from the custom of apprenticing bar students to London solicitors and attorneys, desired by anxious fathers as much as a safeguard against the temptations of loose living as a training for the law.⁴⁶ This intensely practical and intellectually barren form of education still had its advocates well into the next century, and in 1840 Archer Polson offered a detailed appraisal of its merits. Admitting the advantages of acquiring miscellaneous, but often superficial knowledge, steady application to dull labour, tact and readiness, he felt the training incompatible with the ideal of a liberal profession.⁴⁷ Most evidently agreed, for the practice had long been in decline by then, but it did not wholly die out. In the 1880s Lailey, Richard Webster, and William Ball each spent a few months in a City solicitor’s firm, but they were probably unusual.⁴⁸

Though Blackstone had denounced its narrow and superficial character, what displaced it was often no more enlarged, if perhaps more ‘scientific’.⁴⁹ The ‘fetish for pupillage with a special pleader’⁵⁰ led to William Tidd having among his many (p.1024) pupils Copley, Campbell, Pepys, and Denman.⁵¹ A generation of judges and leading common lawyers was thereby initiated into the mysteries of the pleader’s art, with serious consequences for the development of the common law. It also came to be accepted that the budding barrister should attach himself to a conveyancer and an equity draftsman, and by the time Edward Cox produced his prescription for The Advocate (1852) he was in good company in suggesting the training period should last between 18 months and three years.⁵² Cox insisted that the novice at common law or Chancery should start in a conveyancer’s chambers, the former moving on to a special pleader, the latter to an equity draftsman and both finishing up with a busy junior ‘General Practitioner’.⁵³ This last stage, however, was the least common.

Because pupillage was not obligatory it is practically impossible to know how many men followed Cox’s prescription, let alone with what effect. Jeaffreson was probably wrong in claiming in the 1860s that the full three years was normal,⁵⁴ if only because the established rate of 100 guineas a year (50 for six months) was beyond many.⁵⁵ Campbell was one who could not afford this and believed that a year or two would be enough. Ball suggested two or three years⁵⁶ and to judge from memoirs, relatively few undertook the full course Cox prescribed. Frederick Thesiger was probably unusual in going from the conveyancer Walker to the special pleader Sykes via an equity draftsman (Heald) and, a common law junior (Holroyd),⁵⁷ for Palmer described as ‘usual’ his year apiece with Walters for conveyancing and Booth (equity draftsman) and most mention only two names, some just one.⁵⁸ Patrick Hastings was one of those who could not afford to be a pupil at all.⁵⁹

The choice of a pupil master was important since his formal obligations were narrowly defined.⁶⁰ A fortunate student like A. J. Ashton had contacts at the bar (p.1025) to make sure he was well served,⁶¹ but for others it was a lottery. B. J. Robinson contrived to spend 300 guineas and three years with Nichols, who did only insolvency, while E. F. Spence was doubly unfortunate; first he went to Bousfield, but found his patent specialization unpalatable and then to Gill, who practised largely in the Mayor’s Court with its antiquated and peculiar procedure.⁶²

Many were advised to find a busy junior with a general practice, but too busy a man would have no time for his pupils.⁶³ Bowen fell into this class, and Bowen Rowlands named four less famous leading juniors who were similarly situated.⁶⁴ Day and Lindley, on the other hand, were reckoned very conscientious pupil masters, and Harrison, though he loathed conveyancing, found Joshua Williams eager to initiate him into its mysteries.⁶⁵ Alverstone was so proud of his record that he listed his pupils in full in his autobiography.⁶⁶

Special pleaders with a chamber practice had more time to spend on their pupils than advocates but like Tidd and later G. B. Allen, were tempted to take on too many.⁶⁷ Chamber counsel were the same, with Tom Chitty perhaps the worst, taking up to 20 even when well past his prime. Generally more than half-a-dozen pupils was unusual and Campbell and Lindley restricted themselves to two at a time.⁶⁸

Special Pleaders, Equity Draftsmen, and Conveyancers

Special pleaders and equity draftsmen had been admitted to an inn but had chosen to defer their call, usually because they felt uncertain of being able to make a living at the bar without having first built up a reputation and clientele among the lower branch.⁶⁹ They were allowed to charge half the minimum fee (half a guinea), could form partnerships, accept instructions directly from a lay client, and sue for fees.⁷⁰ The best known special pleader of the 1820s was William Tidd, whose writings were extolled by Uriah Heep in David Copperfield. Unlike his celebrated predecessor George Wood, Tidd remained a special pleader throughout (p.1026) his career and had so many pupils that he was said to be making between £2000 and £3000 a year.⁷¹ The reputation of special pleaders was enhanced by the fact that at one time all four judges of the King’s Bench had come from their ranks, and in the 1840s they were numerous enough to have their own club.⁷²

They needed an annual certificate costing £12,⁷³ which gave the inns a discretionary power disapproved by the Common Law Commissioners: ‘[t]o subject Special Pleaders…to a regulation so arbitrary, is to expose to inconvenience and disadvantage, a body of persons whose prosperity is of great importance to the Profession, and to the science of the Law itself’.⁷⁴

Not everyone shared the Commissioners’ fondness for special pleaders. They were able to undercut the bar, and study with them led to contracted minds:⁷⁵ ‘enlarged notions of law and justice are smothered in laborious and absurd technicalities’.⁷⁶ It certainly turned out lawyers who were impressively proficient in the ‘science’ of pleadings—James Parke is the most celebrated example—and since many became judges it is not surprising that the virtues and vices of special pleading became so embedded in English jurisprudence; in the Regency Collier could allege, with spurious precision, that one-fifth of cases were decided purely on technical grounds.⁷⁷

For some of the best known, a spell as a special pleader was usually a short one, though Gibbs (nearly 12 years) and Abbott (earning £1000) were notably cautious.⁷⁸ How many were never called, and how much they earned, remains unknown. The day of the special pleader was short and his eclipse was sudden. The Common Law Procedure Acts 1852 and 1854 demolished the elaborate artifice of special pleading erected by the New Pleading Rules and removed his raison d’être. Thereafter, any member of the junior bar ought to be competent to draw all the usual pleadings, and solicitors would expect them to do so. Training with a special pleader therefore became rapidly obsolete and the profession withered. The decline was precipitous—from 74 in 1850 to just 19 in 1860.⁷⁹ A few lingered (p.1027)into the new century but Dodgson (who died in 1884) was probably the last one of any note.⁸⁰ Well into the 1870s judges trained in this school were still on the bench, but it is unsurprising that Byles would not stay a day after his pension became due under a regime which had made pleadings even more loose, nor that Lush, so good in chambers, was lost in the new Court of Appeal.⁸¹

Much less is known about the conveyancers and equity draftsmen, many of whom combined both roles. The conveyancers became even more numerous than the special pleaders, but with them too the numbers in the Law List are erratic, falling from 96 in 1820 to just 20 in 1835 and fluctuating thereafter until a steady decline set in after the 1880s. The sharp fall in the 1820s is explicable. The possibility of practising without the restraints either of the bar or the solicitors’ profession had attracted dubious characters who had no intention of being called and promptly set themselves up as conveyancers under the bar.⁸² Under pressure from the other branch the inns began to require undertakings from all practitioners under the bar that they would not practise until they were qualified to be called.⁸³ In 1830 Lincoln’s Inn expelled one man who was a land agent and auctioneer turned conveyancer, and the more careful scrutiny of applicants for certificates cured the evil.⁸⁴ Equity draftsmen went into decline with the simplifications in equity procedure which parallelled those at common law, though some barristers practised under this designation.

Chambers

Two major changes took place in the nineteenth century: chambers gradually ceased to be a place of residence as well as of work and came to be shared for that purpose. Fashionable lawyers (especially married ones) moved inexorably westwards, following Ellenborough from Bloomsbury to St. James’s Square.⁸⁵ As suburban buses and then trains made commuting cheaper and quicker the less eminent fled to the suburbs. Thackeray evidently considered it quite normal for Pendennis to be living in chambers with Warrington, but by 1870 few men with any practice were living in their chambers.⁸⁶

(p.1028) Shared professional quarters have been traced no further back than 1839 and initially seem to have been confined to doubling up by young barrister friends to save costs.⁸⁷ Strahan, writing in 1919, suggested that sets arose from congregations based on school affiliation to provide mutual support, but another development contributing to the creation of ‘sets’ in the modern sense, with a head and a group of clerks, is illustrated by the case of Gorell Barnes, who made himself so useful to J. C. Mathew as his devil that the latter kept him on after pupillage.⁸⁸ Sets were certainly in vogue by the First World War; Salter’s chambers were a western circuit set which emptied at Assize time, and in Liverpool F. E. Smith brought in Harold Jager and other juniors to share his chambers.⁸⁹

The move to shared chambers made for significant changes in working practices.⁹⁰ In single chambers the novice had to adopt a very passive role. The unpleasantness of that situation was often described, though it also gave rise to a folklore of comforting stories, some of them true, of the miraculous deliverance that did come to the man who waited.⁹¹ The solitary barrister in his own chambers was the individual idealized by the bar, an independent man making his own way in the world. But the position of a young man joining a set with an established hierarchy is very different. Besides inculcating the bar’s values, the arrangement reinforces the authority of the bar establishment, tending to repress rebellious traits and promote conformity. Without guaranteeing work, it also ensures that a man who is accepted into chambers will, through the agency of the clerks, obtain at least a few briefs with which to demonstrate his abilities. As the trend to sets grew, the man who sat in chambers like patience on a monument, smiling at grief, became more unusual. And in time finding a tenancy would become one of the biggest obstacles to a career at the bar.⁹²

Local Bars

Towards the end of the nineteenth century a further possibility opened up. There had long been individuals who, either from an attachment to their locality or because they had failed to get a foothold in London, confined themselves to one (p.1029) part of the provinces, but nowhere outside London was there enough business for more than two or three to carve out a full-time practice. Many counties could show one or two men like the younger Balguy, scion of an old Derbyshire house, who went the midland circuit, but would never go to London unless on circuit business, though he nominally had chambers there. ‘The perfect English gentleman’, Balguy collected local offices and was ambitious of nothing more.⁹³ Such men were too few and scattered to represent any sort of threat to the ‘great central bar of England’.

With the creation of the new county courts and changes to the Assizes, the conditions for the development of local bars of modest size but distinct character gradually came into being.⁹⁴Manchester, Liverpool, Leeds, and Birmingham all became Assize towns and district registries and the first two had specially lengthened Assize sittings. Several big cities had an active local court which besides being a venue for litigation above the county court money limits, offered the possibility of a local judgeship. All of them had a Recorder, and most had a stipendiary magistrate too. In 1880 Birmingham, Leeds, Bristol, and Newcastle had about a dozen barristers with local business addresses and Manchester and Liverpool each had over fifty.⁹⁵ By 1900 these two were approaching 100, while growth in the other regional centres remained much more modest.⁹⁶

Local bars, if still unwelcome in some quarters, became a fact of life and had their share of talent. John Holker was perhaps the first to demonstrate in London that carefully nurtured artless bluntness which went down so well with northern juries, and even eminent circuiteers lacking a local connexion found that solicitors preferred locals familiar with the peculiarities of northern juries and business practices.⁹⁷

The strength, and indeed legitimacy, of the Manchester bar was openly acknowledged in Herschell’s choice of W. R. Kennedy for the bench in 1893 and by the abandonment of the rule that a KC must have chambers in London.⁹⁸ Manchester and Liverpool by then boasted sets of chambers on the London model and a wide range of barristers from the commercial silks that were their greatest strength to criminal defenders of the rough and breezy type like Charles McKeand.⁹⁹

(p.1030) The other provincial bars remained smaller. Birmingham had some good advocates but only H. A. McCardie was in the star class and the quality of the Leeds, Newcastle, and Bristol ones was rather moderate.¹⁰⁰ As a proportion of the practising bar they were still small in aggregate, but no longer insignificant.

Choice of Circuit

Most men had to choose between practising in the courts of common law or in Chancery, though the choice did not have to be immediate and while the equity side of the Exchequer lasted it was possible to practise on both sides of that court. After the opening of Divorce, Probate, and Admiralty courts to the common lawyers in the mid-century it was also possible to specialize from the outset in those areas, but few did so. There were, however, those who made the Old Bailey and the Surrey and Middlesex sessions their home, not venturing even onto the home circuit.

The Chancery bar was disengaging from the circuits. Charles Wetherell was the last of the big names to go, though J. L. Knight-Bruce went the South Wales for a few years until it interfered with his growing Chancery business. By the late 1820s, at all events, the habit was gone.¹⁰¹ Edward Cox put great emphasis on the importance of choosing the right circuit. He felt the most obvious criterion, a local connection, could easily be overrated, but conceded that it was a significant advantage and for most men it was probably the decisive consideration.¹⁰² Family connections were the most obvious, though some fathers forbade their sons to accompany them.¹⁰³ For those who had no usable connection it was more difficult. A. C. Plowden resolved on the Oxford because it took him to the Welsh marches where at least his name would have associations but for Scarlett, coming from the West Indies, it was more or less a random choice.¹⁰⁴ Cost could enter the equation, persuading Campbell to take the home and Copley the midland; later on Edward Clarke, who could ill-afford the £150 for the western, went the home instead.¹⁰⁵ For those who did not expect to get much business and were either too poor or too much in earnest to care for the social side of circuit life, compactness (p.1031) was a factor which made the midland more attractive than the northern, while from the 1850s the home allowed of a sort of commuting by railway. But men were various; Campbell moved to a circuit where the bar was weaker whereas Brett was one of the few who actually took the northern because the bar was strongest.¹⁰⁶ Towards the end of the period there were leading men who never went circuit; for the likes of T. E. Scrutton and F. D. Mackinnon it presumably seemed a waste of time.¹⁰⁷

Clerks

A barrister had to employ a clerk but impecunious newcomers like Campbell had to settle for recruiting a nine-year-old boy and training him up. Pendennis indicates that such juveniles were still the norm in the 1840s¹⁰⁸ but with the coming of compulsory education these ‘wonders of precocity’ were usually between 12 and 14.¹⁰⁹ They were still seen as needing no more than a board school education,¹¹⁰ for unlike articled clerks they were not expected to look for advancement beyond a clerkship and only a handful went to the bar.¹¹¹ So for all that KCs’ clerks had to dress in silk hat and striped trousers they were for the most part cockneyfied.

If the clerk was satisfactory and the barrister successful the relationship might be a long term one, though few hero-worshipped a master as Bowker did Marshall Hall,¹¹² nor were many on such familiar terms with their master as Mingay’s.¹¹³ Clerk frequently followed their master if he became a judge, though for financial reasons they usually hoped such a move would be long delayed, and the reluctance of several judges to abandon long-serving clerks to an unpensioned existence precipitated the ‘Colliery explosion’ in 1871.¹¹⁴

(p.1032) It was the financial aspect of the clerks’ duties that led to repeated criticism. Bowker’s romantic view that most successful barristers were not motivated primarily by the pursuit of money was made possible by what Hawkins’ biographer described as the rapacity of barristers’ clerks.¹¹⁵ Once the practice of having a separate fee for the clerk endorsed on briefs was accepted by taxing masters and rapidly hardened into one of the bar’s immutable traditions, it became necessary for a scale to be adopted in 1834 to curb their demands.¹¹⁶ It failed to do so, leading to indignant protests by the Law Society in 1850 at attempts to extort extra fees and a further controversy in the 1880s, when solicitors seemed at one point ready to refuse to pay a separate fee at all.¹¹⁷ By Lord Alverstone’s day the clerks had succeeded in claiming 2½ per cent on the brief and 2s/6d or 5s for a conference,¹¹⁸ but by then the move to sets was making important changes in the position of the clerk. Barristers had begun to share clerks when they began to share chambers,¹¹⁹ but once a set became established it was ruled by a senior clerk, who took his percentage of the earnings of every member of the set, with each barrister having a junior clerk of his own.¹²⁰ As chambers increased in size, the earnings of a few clerks reached four figures, but as there were seldom more than three or four members in a set,¹²¹ most got between £300 and £400 and Edward Spence reckoned that when he was making a little over £4000 his clerk got £170 (4 or 5 per cent).¹²²

In this situation the senior clerk came to wield real power over the junior bar. Even the career of the head of chambers could be shaped by the levels at which his fees were set. Carson’s clerk took care to ensure that he demanded as much as Isaacs, and this sort of thing, conducted by sharp, streetwise men with a keen eye on the market, was one factor in the inflation of counsel’s fees before the First World War.¹²³ The clerk could also advance or retard the progress of a junior’s career in such a way that the hapless sufferer might not immediately be aware of it; thus Newman, Salter’s clerk, was felt by Smith to care little for Goddard and the other juniors.¹²⁴

(p.1033) For the junior clerks there was no expectation of promotion within chambers, where hours were long and working practices usually very conservative, with typewriters and telephones making only slow progress.¹²⁵ Young clerks had to be alert for vacancies in other chambers or in new sets. Thus Bowker entered Houghton’s chambers in 1904, moved to Macaskie’s as a junior then became senior clerk to Hans Hamilton and when Hamilton became a county court judge, moved to head a Birmingham set. He eventually achieved his long held desire to serve Marshall Hall, who passed over his own junior to take him.¹²⁶

Outlay

A university educated bar student in the mid-nineteenth century might expect to spend c.£400 per annum and, with board and lodging, perhaps another £600 per annum.¹²⁷ Being called, however, did not mean an immediate income. In The Advocate (1852) Edward Cox entered fully into the question of how much a man needed to live on at the bar until—hopefully—he acquired a worthwhile practice. Cox put chambers at £30, a laundress at £12, a clerk at £15, and books (limited to the ‘regular reports’) at £10. With various sundries he costed chambers etc. expenses at £77. To this he added five attendances at sessions (£40), a restricted attendance on circuit (£55), and the expenses necessary to keep up a gentlemanly appearance (£100); in all he would need to find at least £272 per annum.¹²⁸

Other estimates naturally varied. In 1835 Samuel Warren felt one could manage on £150 (but revised it to £250–£300 following sharp criticism), whereas Lord Abinger CB probably put it too high at £400. Others put it at £250 (1857), £300 (1881), and £200 (1909).¹²⁹

This sum would very likely have to be found for a good few years, for it usually took upwards of five years to show a profit.¹³⁰ It was cheaper to practise at a local bar and there were economies in sharing clerks, chambers, and reports.¹³¹ Even so, without parental support, it was a precarious existence: a man must, as Eldon put it, ‘live like a hermit and work like a horse’.¹³² Some successful men in every(p.1034) generation—like Pemberton-Leigh, Brett, and Hastings—maintained that poverty was the best stimulus to success,¹³³ but the general advice was that a man should not venture to practise if he were poor.

Journalism

The bar knew all this perfectly well, but the character of the profession was held incompatible with supplementing their fees by other employment, and the need to be in chambers or in court when that elusive brief arrived precluded regular work.¹³⁴ Nevertheless in 1842 one barrister was found to be keeping a public house and another was in the confectionery trade.¹³⁵ Just one occupation was excepted from the general censure and became the staple of the briefless barrister—journalism, and its more respectable cousin, literature.

Jeaffreson (1867) probably exaggerated in claiming that ‘three out of every five journalists attached to our chief London newspapers are Inns-of-Court men’¹³⁶ but they were certainly numerous and, by then, respectable. This had not always been so. When men like Spankie, Campbell, and James Stephen wrote for the newspapers in the first decade of the century they courted the disapproval of the more traditional members of the bar, for journalism was a dubious occupation.¹³⁷ But Lincoln’s Inn had to withdraw a ban on those who had ‘written for hire in the newspapers’¹³⁸ and the coming of theEdinburgh and other weighty reviews provided opportunities for more elevated writings of which the bar took full advantage. J. T. Coleridge was briefly editor of the Quarterly before he became a judge; Brougham poured forth his unstoppable learning in the Edinburgh, and when the Saturday Reviewstarted up in 1855 its recruits included J. F. Stephen, Henry Maine, Vernon Harcourt, and G. S. Venables; in 1865 Stephen and Maine migrated to the new Pall Mall Gazette, whose team also included the young Frederic Harrison.¹³⁹ Not all serial publications were so elevated in tone; Bracebridge Hemyng of the Middle Temple gave the world the vivid adventures of Jack Harkaway.¹⁴⁰ In fiction, Pendennis was as swiftly inveigled into the literary world as his creator had been, and Thackeray was one of many (John Buchan and Alfred Harmsworth (p.1035) were others) who were seduced from the bar.¹⁴¹ For most, however, it was a temporary expedient and from the 1840s there were also at least three weekly legal newspapers as well as one or two scholarly periodicals.

Some, however, sought to use their position as a way of puffing their own career. In ‘The Modern Way to Get On at the Bar’ one writer boasted that ‘the way which I choose, to get on is by paragraph puffs in the News…’. This practice, which often took the form of mutual boosting, was generally condemned but hard to eradicate.¹⁴²

The importance of publicity to a young barrister’s career was illustrated by the seriousness with which circuit messes took up complaints against The Times in the 1840s when it became inexplicably selective in naming the counsel appearing in cases on the Oxford circuit.¹⁴³ It was a foolish dispute, for the newspaper relied on court cases to fill its pages and it benefitted the bar to have reporting, even at a ‘human interest’ level, done by its members.¹⁴⁴ At least the Attorney-General confirmed that it was acceptable for barristers to write for the press, though the limits of acceptability were tested in 1908, when the Bar Council was divided on the practice of offering legal advice through a newspaper column.¹⁴⁵

Books

In the first half of the nineteenth century a dictum appeared in various forms about the ways to get started at the bar. One version listed four: ‘huggery’, a miracle, quarter sessions, and writing a law book.¹⁴⁶

In 1808 the young Thomas Denman told his father that he thought the market for law books was now saturated.¹⁴⁷ He was quite wrong, and if it became harder to find fresh subjects, or to rearrange existing ones, some writers still succeeded in establishing titles which passed through many editions;Chitty on Contracts is an obvious example. The less fastidious could improve their chances with fulsome dedications to leading judges and lawyers; much later Patrick Hastings unabashedly used this means to ingratiate himself with C. F. Gill.¹⁴⁸

(p.1036) The dominance of the junior bar in the book market is unsurprising. Absent a substantial body academic lawyers they alone had the time, the knowledge, and the access to a library which were needed to produce a book. Few were so precocious as Edward Sugden, who at 21 boldly aimed hisVendors and Purchasers at landowners, and few succeeded so well either.¹⁴⁹ An outpouring of statutes supplied plentiful opportunities and many offerings were mere scissors and paste jobs, but on new or under-explored subjects even they could have a decent sale: Sandbach and Cassels were self-depreciatory of theirs on Motoring Law and Hire Purchase respectively, but they served their purpose.¹⁵⁰ Success did not always go to the deserving. William Charley’s book on the Judicature Acts was said to have been mostly the work of one Hughes, who died in a railway accident, yet it helped to gain Charley the post of Common Serjeant, while W. M. Best wrote ‘perhaps the most scientific legal work of the present century’, yet his practice never prospered.¹⁵¹ Best’s was one of the relatively few books that went into successive editions, thereby creating further opportunities once the original author was dead or too busy to revise it.¹⁵² Thus William Barber gave Haldane Dart’s Vendors and Purchasers to edit, while H. S. Theobald was even luckier: the publisher Stevens asked Farwell to write on wills and being too busy he suggested Theobald instead.¹⁵³

The coming of law examinations made openings for a new sort of book, the student text, and Arthur Underhill seized the chance to write the first one on torts, to his considerable profit.¹⁵⁴ As the profession grew so did the number of books published; in 1853 the Law Times listed just 16 new books, but 83 in 1913, most by barristers. Some considered that authorship had become so commonplace that only a weighty treatise would bring a barrister to notice, but that might brand the writer as too theoretical.¹⁵⁵ Most preferred to attempt something modest which might bring in a few hundred pounds even if it did nothing for their reputation.

Quarter Sessions

The recommendation that fledgling barristers should ensure they went to quarter sessions was well grounded.¹⁵⁶ Because of the interaction of Assizes and quarter (p.1037) sessions a man could choose only one county quarter sessions, but as many boroughs as he could fit in, though the key to getting any business was to attend each of them regularly.¹⁵⁷

The intrusion of hungry barristers created ructions in places where the local attorneys had hitherto had the field to themselves, but the intruders’ success was predictable given the judges’ partiality for their own profession. In R v. Justices of Denbighshire ¹⁵⁸ the Queen’s Bench upheld a local bench in granting exclusive audience even where barristers had never established a foothold. A ‘rule of four’ (exclusive audience wherever the bar could muster at least four men) became fixed and by degrees the barristers’ domain was extended to all but the least profitable sessions.¹⁵⁹

Unfortunately for beginners the quarter sessions became less profitable once the new Poor Law drastically reduced the number of settlement cases. There was still abundant licensing business in the bigger boroughs but elsewhere it was mostly crime.¹⁶⁰ In Lancashire, where new industrial towns kept acquiring sessions of their own, the prospects were still good, but at Warwick George Harris had found just three rivals and no briefs which afforded the chance to impress the solicitors.¹⁶¹ Furthermore, the junior bar suffered in places where the magistrates undertook prosecutions themselves and refused to fund counsel for prisoners, denying inexperienced counsel invaluable experience.¹⁶²

Though a novice could embarrass himself even at sessions,¹⁶³ even less able practitioners like Liddell could handle most cases and Plowden found that if one persevered some briefs would eventually be forthcoming.¹⁶⁴ Still, local men often took all the best business, especially at the county sessions. Devon for instance had men like Sam Carter, a ‘picturesque old savage’ and Henry Clark, whose intimacy with the magistrates’ clerks got him all the prosecutions.¹⁶⁵ Later on, as the (p.1038) petty sessions acquired enlarged jurisdiction, the 20 or 30 barristers at quarter sessions might find fewer than a dozen prisoners.¹⁶⁶

‘Devilling’

Pre-Victorian prescriptions for getting started at the bar did not mention devilling, and although the term itself was familiar, it was usually applied only to the junior Treasury counsel who assisted the law officers. That was an official position with guaranteed remuneration and good prospects, whereas the essence of devilling as it came to be widely practised was informality. It was an arrangement between the brief holder and the ‘devil’ which might well be unknown to the client and the solicitor and whose terms, particularly whether there would be any payment, were a matter only for the two of them—and were usually dictated by the brief holder.¹⁶⁷

It is precisely this informality which makes the incidence, terms and etiquette of devilling elusive. It seems to have grown with the explosion of KCs in the 1830s and with the concentration of lucrative business in leaders (including busy juniors) who routinely held more briefs than they could manage. The organization of Chancery, and the practice of splitting the fee, may have made it less prevalent there (though see the cases of Davey and Haldane, below) but among the big practitioners at common law and also in the criminal courts it became commonplace.¹⁶⁸

The means through which devilling was obtained varied. An enterprising clerk such as Webster’s might sniff out an opportunity; a pupil master like Haldane’s might recommend him, and F. E. Smith used his own pupils.¹⁶⁹ Sometimes it arose from a man being in the right place and receiving a brief to hold or being asked to take a note. As noted above, Gorell Barnes won a place in Mathew’s chambers and succeeded to most of his business when Mathew became a judge. Something similar befel Haldane after his introduction to Horace Davey, and at the criminal bar R. D. Muir devilled so successfully for Forrest Fulton that he assumed the latter’s practice.¹⁷⁰ That was rare, however, and all three men were paid for their work, whereas gratuitous devilling was commoner, though this (p.1039) may not originally have been the case.¹⁷¹ No wonder some disliked the practice, regarding it as demeaning, but for the most part it was accepted as a fact of professional life.¹⁷²

The role of the devil also varied. For the most part he was a ‘research assistant’,¹⁷³ reading and summarizing the brief, finding the cases, and checking the evidence. At the criminal bar, however, it seems that an overburdened Old Bailey leader would sometimes simply offload the brief onto his devil, giving him conduct of the trial.¹⁷⁴

‘Miracles’

The inclusion of the miracle in the prescription is an eloquent acknowledgment that while success at the bar had to be earned, the opportunity to earn it could not be guaranteed. As Crispe wrote: ‘[t]he day after your call you go to the empty desk, and, unless you have influence, you may so go for days, weeks, months and even years’.¹⁷⁵ Stories of the sudden, unexpected opportunity to make one’s name by a single brilliant performance continued to emerge, albeit with warnings that it was not the usual route to success. More encouraging to the briefless were the tales of a first brief obtained by chance, as happened to Cairns¹⁷⁶ and to Buckley, who was briefed on the erroneous assumption that he was the son of a taxing master.¹⁷⁷ J. A. Rentoul was equally lucky in that a solicitor’s clerk was impressed with his speech at a political rally.¹⁷⁸ But writers stressed that, while the deserving could not command an opportunity, these miracles happened only to the patient and diligent. ‘Be always en evidence’, wrote Henry Dickens,¹⁷⁹ and writer after writer urged an early and regular attendance at chambers followed by a day in court, where the opportunity might arise to take a note, which might lead a generous leader like Marshall Hall to mention your name to the judge, or to hold briefs.¹⁸⁰ These stories served a useful purpose. While accepting the role of luck (even Bethell said he was fortunate to have a name near the beginning of (p.1040) the alphabet¹⁸¹), they linked success to deserts, thereby squaring a particularly troublesome circle, and offered hope to the briefless.

‘Huggery’

Huggery may be defined as ‘to caress or court, especially in order to get favour or patronage’.¹⁸² It was quite desirable to follow Crispe’s suggestion and cultivate a wide and promiscuous acquaintance at the bar,¹⁸³ but any attempt to ingratiate oneself with an attorney or solicitor was deprecated. The circuits had rigid rules to make it difficult and offenders were sure to be visited with the full range of informal sanctions, as the hapless Dan Giles found when he turned up at York with a hatful of briefs obtained through recommendations from London solicitors of his acquaintance.¹⁸⁴ However, sanctions were not always effective and in London, and later in the cities with a local bar, it was practically impossible to police any but the most flagrant breaches. With an unpleasant twist of gratuitous snobbery, huggery was sometimes coupled with the sneering suggestion that one way forward was to marry a solicitor’s ugly daughter, though this may have been heard less often once Halsbury (who had married a solicitor’s daughter and was no oil painting himself) became Lord Chancellor.

The inclusion of huggery in the prescriptions for success indicates a rueful acceptance that for some beginners there was little alternative. Since solicitors had been given the role of gatekeeper to clients a newcomer’s best chance of persuading them to employ him was through direct contacts or a connection with one or more of their major clients. It was all very well for an exceptional man like John Simon to insisted that it was not necessary,¹⁸⁵ and for Underhill and Parry to argue that it was not helpful for a young man to have demanding briefs bestowed upon him by well meaning friends; besides creating jealously in the circuit mess they risked a poor performance leading to loss of confidence by the tiro and the solicitor alike.¹⁸⁶ And certainly professional connections were no guarantee of success. Freshfields briefed Roundell Palmer as a favour to his uncle, and Haldane impressed a partner he met socially with his knowledge of wine; in each case further briefs followed, whereas Freshfields also briefed Dolly Liddell, but only once.¹⁸⁷

(p.1041) Still, the desirability of a professional connection was a truth almost universally acknowledged, even if it led only [sic] to ‘colonial attorney and solicitor generalships and appointments of a similar character’.¹⁸⁸ That is why the inns erected and defended barriers against solicitors wishing to transfer to the bar and maintained them for as long they could and why there were exaggerated estimates of the number and impact of solicitors’ sons coming to the bar.¹⁸⁹ Relations of the lower branch were indeed disproportionately represented among the superior court judges,¹⁹⁰and the careers of Palmer and Webster show that an early link with big business could be equally valuable.¹⁹¹ In the provinces Robert Gifford rose so quickly because he was backed by Exeter’s business community and Gerald Dodson’s father’s year as Norwich mayor ensured him some complimentary briefs from the local attorneys.¹⁹² According to Bickersteth, there was also a period when the leading agency firms had strong northern connections and favoured barristers from the region.¹⁹³

Sons of judges and famous leaders could trade on their name to get their start. Serjeant Parry’s popularity certainly helped his son, as the names of Romilly, Erskine, and Law helped their less talented sons, and Witt retails the bar’s bitter jest about the priorities at the beargarden: ‘[a]ny judge’s son with a summons?’¹⁹⁴ The playing field was anything but level and a few openly objected that the rules against huggery only helped the already advantaged and the unscrupulous.¹⁹⁵ J. D. Coleridge shrank from seeking to muscle in on what he and his father both called ‘the favour business’ on the western circuit, which went overwhelmingly to the well connected,¹⁹⁶ but others could not afford to be so fastidious.

‘Soup’ and ‘Dockers’

There were two substantial gaps in the wall erected between the barrister and the client, both in criminal proceedings. On the prosecution side there was ‘soup’, the name given to the system under which prosecution briefs at sessions were (p.1042) prepared by a person employed by the county or borough and distributed by him among all counsel attending the sessions, usually in order of seniority.¹⁹⁷ The amounts were small—at the Old Bailey they ranged from one to three guineas depending on the number of witnesses—but worth having for the experience and the chance of publicity. Even Gorell Barnes could be found in the queue at Liverpool, and in Manchester, where the number of briefs was considerable, Edward Parry found them a very useful addition to his income.¹⁹⁸Until the creation of a bar mess in 1891, soup was seen at its worst at the Old Bailey, where some elderly or incompetent practitioners, like the eccentric Langford, were wholly dependent upon it.¹⁹⁹ There was a waiting list to get on the rota and quarrels broke out over whose turn it was. Moreover, since the judges left the distribution to their clerks there was the suspicion of favouritism and touting for business.²⁰⁰ The bar mess disgraced itself by blackballing an Indian barrister, who needed the Attorney-General’s intervention to get him his soup ration.²⁰¹

The equivalent to soup on the defence side was the ‘in person’ procedure, supplemented by the dock brief or ‘docker’. A prisoner might, if he could find a guinea, plus a half crown for the barrister’s clerk, choose counsel without the intervention of an attorney.²⁰² The benefit to a young counsel could far outweigh the modest fee; for example, the murder defence Gerald Dodson got in Norwich in 1903 won him priceless publicity.²⁰³ Once again the Old Bailey was the centre of abuses. Regulars who established a reputation for giving their guineasworth, men like Purcell and Thorne Cole, made very worthwhile sums,²⁰⁴ but the warders used to recommend favoured individuals and barristers’ clerks indulged in touting for trade, at least one barrister being suspended for irregularities of this sort.²⁰⁵

Soon after 1900 Sir Richard Muir, as head of the Old Bailey bar mess, effectively put an end to the ‘in person’ and a new system for aiding impecunious defendants was introduced. This seems to have been subject to a similar abuse, with distribution frequently ending up in the hands of the head warder.²⁰⁶Apart (p.1043) from those who intended to make a career in the criminal law, most new barristers abandoned the quest for soup and dockers as soon as they felt able, though Sandbach needed a hint from the Clerk of Assize that it was time he did so: presumably it did no good to a man’s reputation.²⁰⁷

Earnings

Though there is little statistical information about barristers’ incomes, it is clear from figures for the very end of the period and from the unanimous opinion of contemporaries throughout that the range of incomes far exceeded that in most other professions; in 1913/14 the top 10 per cent of barristers averaged £1820, the bottom quartile £155.²⁰⁸ Since the latter hardly represented a living wage for anyone with pretensions to middle-class life, it may be assumed that it includes many who were just starting out and others who were not treating the profession as their sole or main source of income.

Some 60 years earlier Thomson, considering only the 500 or so men he felt made a living at the bar, reckoned a junior as likely to make between £500 and £1200 with a maximum of £2000.²⁰⁹ It is unlikely that the late Georgian bar was as prosperous as that, though a few juniors like Scarlett and Abbott may have had unprecedented earnings.²¹⁰ Conveyancers and equity chambers counsel were said never to approach these levels.²¹¹

Most data concerns outstandingly successful men and suggests that their upward drift continued until the 1830s and resumed in the 1850s after a pause, but these trends are unlikely to hold good for the practising bar as a whole.²¹² However, from 30 or so sources it is possible to extrapolate a tentative series of pathways. A few very able men began to make money almost immediately; Bethell and Clarke made 100 guineas in their first year and William Follett’s meteoric rise from 300 (p.1044) guineas in his first year to 3000 in his fourth was regarded as unexampled, though later on Gordon Hewart bettered everyone with £1000.²¹³ More common was a slow start followed by a sudden acceleration at some point between three and seven years from call. This happened with Lindley, Haldane and Palmer, Russell and Barnes, and on a more modest scale with Dodson and Curtis Bennett.²¹⁴ The third path is a relatively smooth growth such as that experienced by Henry James and J. D. Coleridge.²¹⁵How high a junior’s earnings rose depended, inter alia, on whether and when he took silk. A few juniors who declined silk might be earning more than most leaders, in H. A. McCardie’s case an unprecedented £20,000.²¹⁶

Little is known about the make up of earnings, but E. F. Spence offers one useful breakdown: for two years between half and 60 per cent of his earnings came from interlocutories and cases for opinion as opposed to briefs for trial.²¹⁷ Whether this is typical there is no knowing at present.

Public Offices

In 1818 Crabb Robinson remarked on the number of offices reserved for a ‘barrister of five years standing…while it is notorious that many such barristers are ill-qualified for any office’.²¹⁸ The bar did remarkably well in securing so many opportunities for its members and it was small wonder that purists like Denman grumbled that it was coming to be seen as a staging post to public offices.²¹⁹Samuel Warren was criticized for degrading the noble spirit of the bar by pointing out the number and value of such posts, but William Ball’s father was probably not the only one who was impressed with the possibilities they offered.²²⁰

Many positions were full-time appointments which meant abandoning the bar irrevocably, though a few colonial judges returned home to practise. However, there were also part-time positions offering modest rewards but raising the profile of the holder. For example, the only judicial post that eminent jurist (but unsuccessful (p.1045) barrister) F. M. Pollock ever filled was the near-sinecure Admiralty judge of the Cinque Ports.²²¹ It was usually the well connected who got such pickings: Adolphus Liddell, of an aristocratic family and brother of a permanent secretary, was secretary to three royal commissions, an examiner to the Supreme Court, a revising barrister, counsel to the mint at Durham and an examiner for the inns of court.²²²

The three most common part-time employments were as recorders, bankruptcy commissioners, and revising barristers. Until the Municipal Corporations Act 1835 the boroughs appointed their own recorders, and still exerted influence after the Home Secretary acquired the patronage.²²³ Where there was much criminal business they usually wanted a big name, preferably with local connections, but a sleepy hollow like Much Wenlock provided Plowden with barely 10 days’ work in 10 years. The salary was proportionately low, but it served to distinguish him from the ruck.²²⁴

Until Brougham’s reforms of the bankruptcy courts there were also more than 70 part-time commissioners appointed by the Lord Chancellor. At £300 per annum these posts were worth having, though they demanded quite a lot of time, and were used by Eldon to reward political services and oblige friends. Even after 1831 there were still commissioners in the provinces.²²⁵

Revising barristers were created by the 1832 Reform Act to determine election petitions and might have been expressly made as outdoor relief for the junior bar. Even when a qualification was imposed it was a mere three years from call, and since the Attorney-General had told the Commons that these positions were ideal for barristers without work it is hardly surprising to find the judges (the senior judge on each circuit had the patronage) accused of putting the interests of the profession, especially their own connections, before that of the public.²²⁶ Charges of nepotism may not be fully substantiated, but the 1871 list includes a Channell, a Vaughan Williams, a Coleridge, and a Lushington among the 56 names, 16 with less than seven years’ standing. Furthermore, at least one Lord Chief Justice, who nominated to London, ensured that the Chancery bar got its fair share even though its practitioners were ill-suited to handle the business.²²⁷ Faced with the number of hungry mouths at the circuit mess the more fastidious (p.1046) judges would have agreed with what Denman wrote in 1847: ‘I heartily wish the judges were deprived of all patronage of this kind. Towards the end of the Assizes the looks of expectation and disappointment are harrowing.’²²⁸ That shows how much these casual titbits meant to the strugglers.²²⁹

Another useful position was deputy county court judge. Though creating no expectation of succeeding to the judge’s place, it offered the chance to acquire judicial experience and make a name. Indeed some judges had regular deputies and until the 1880s controls on suitability were weak and judges often chose the needy rather than the capable.²³⁰ Prosecuting counsel for the mint and, especially, the post office were also sought after posts, existing for each circuit as well as for the Central Criminal Court. W. F. Pollock, counsel for the mint on the northern circuit in 1841, and Chartres Biron, a post office prosecutor at a later date, found they yielded a good crop of cases.²³¹

Besides positions at home, call to the bar made a man eligible for most judicial posts in the colonies. He might emigrate, set up as a barrister in the colony of choice and come in time to a judgeship;²³² one unfortunate example is John Cook, an undistinguished Old Bailey practitioner who emigrated to Trinidad, became a judge, and was sacked for drunkenness.²³³ The alternative was to apply direct for a judicial post. Indian judgeships were by far the best paid, and after 1861 the chief justiceships were reserved for barristers, as were at least one-third of the seats on the High Court benches. Nevertheless, it was usually difficult to find men of suitable calibre; the Indian bench was seen throughout the period as a refuge for comparative failures.²³⁴

As the nineteenth century progressed, the ‘white’ settler colonies offered a more attractive environment but the professional prospects of an English barrister without connections diminished, for with the establishment of self-government judicial posts tended increasingly to be given to prominent local lawyers.²³⁵ In Crown colonies the Colonial Secretary appointed judges. He was besieged by applicants, many with political connections, and lacked any knowledge of most of them. Some choices were strongly criticized, especially around the middle of the century. Modest salaries, unhealthy climates, and low prestige deterred most (p.1047) successful men and in the more desirable colonies there were plenty of local candidates with pretensions. However, more than half of the colonial chief justices in the last third of the century were taken from the English bar and by then it was probably easier to find men in good practice.²³⁶

Specialization²³⁷

Some writers noted an increasing trend towards specialization towards the end of the nineteenth century,²³⁸ and certainly the Judicature Acts had done nothing to fuse the common law and equity bars; only a few—Giffard, Moulton, and Buckmaster among them—bestrode that divide.²³⁹ Distinctive bars had also emerged out of the destruction of Doctors’ Commons, both in Admiralty and (rather larger and very self-protective) in divorce. There was a semi-distinct patent bar and a wholly separate parliamentary bar.

Within the generous width of the common law bar, which was much the largest, there had long been specialists and new specialisms arose, such as the motoring cases which gave Curtis Bennett such a good living and in an earlier generation the railway cases from which Webster had profited.²⁴⁰ West, the Manchester Recorder, was one of several who had been regularly in settlement cases and first Day and later Darling had been fashionable silks in breach of promise cases.²⁴¹

The Common Law Bar

The career trajectories and life experiences of the common law bar were so diverse as almost to defy generalizations. It is possible to outline a pattern for the successful (essentially those who became KCs or reached the judicial bench), but they are necessarily untypical and there are too few individual studies of the (p.1048)