1. Introduction: The Quest for Respectability
Attorneys and solicitors had a deep concern, sometimes almost amounting to an obsession, with establishing a ‘respectable’ or ‘liberal’ profession. Their route to respectability involved a long, uphill struggle to displace the unflattering image of the pettifogger which literature insistently perpetuated and to which certain judges and barristers lent their imprimatur. It was made harder by the persistence, particularly in London, of practitioners (not all of them enrolled) who fully merited the bad reputation that critics fastened on the whole profession.2 Progress was made, however. It was easier to achieve respectability, if not gentility, in the counties, where those who forsook litigation for conveyancing or became a factotum to landowners usually insinuated themselves at least into the lower levels of polite society. In big towns there was a great divide between the socially accepted elite, and the mass of more lowly attorneys. Still, the irresistible comparison with the bar remained dispiriting. There were barristers shabby in conduct and costume, but their existence never detracted from the standing of the profession: to be a barrister was to be a gentleman. By contrast, if an attorney were a gentleman—some unquestionably were—it was not by virtue of his profession but rather despite it.3 (p.1109) This was what gave point to the favourite jibe of their detractors, that an attorney was a gentleman [only] by Act of Parliament.4
The dogged pursuit of respectability brought successes. In 1852 Charles Dickens introduced readers of Bleak House to Mr Tulkinghorn, respectability incarnate, and Mr Vholes: ‘Mr Vholes is a very respectable man. He has not a large business, but he is a very respectable man. He is allowed by the greater attorneys who have made large fortunes, or are making them, to be a most respectable man….’5However, in calling Vholes an attorney Dickens was consciously choosing a term which was going out of favour and one which, since Vholes was acting in Chancery, was inapt.
Most of the profession had long preferred the term solicitor, which had not acquired the seemingly irremovable stigma attached to attorney. The move was ridiculed by a versifier in 1815:
Though conservatives like Samuel Warren deplored the abandonment of the venerable name, it received its quietus under the Judicature Act 1873, which made the members of the lower branch solicitors of the Supreme Court.7
And thus the most opprobrious fame
Attends upon the attorney’s name.
Nay, the professors seem ashamed
To have their legal title named;
Unless my observation errs
They’re all become solicitors.6
Of course it took much more than a change of name to rescue the image of the profession and the Law Society and its provincial counterparts adopted several means. One was to improve the social quality of new entrants by offering shorter articles to graduates in 1821, imposing a preliminary examination in 1861 and reducing exemptions to ‘ten year men’.8
It was also necessary to remove or marginalize the sort of practitioners whose activities brought the profession into disrepute. The Manchester Law Society had as its original aim ‘putting down one or two practitioners of the very lowest (p.1110) class’,9 spent hundreds of pounds in its early years in prosecuting them and only took its dirty linen indoors to wash in private when it felt it no longer needed to demonstrate its determination in public.10 Once respectability was successfully claimed the local practitioners in Birmingham and elsewhere could ‘define out’ their ‘black sheep’ and disown them.11
Thirdly, it was necessary to create a professional etiquette to put down practices which laymen regarded as discreditable and/or which savoured too much of trade. Touting by clerks fell into the former class;12 advertising into the latter, and while neither could be altogether prevented, both could be put beyond the professional pale and Christian (1896) felt (optimistically) that the latter had been effectively stamped out.13 As with the bar, etiquette often embraced anti-competitive behaviour and Christian lamented that it had not been possible to prevent ‘the higgling of the market’, and to enforce a strict adherence to scale charges.14
There were, however, limits to what professional institutions could accomplish, and the position of solicitors would in the end depend upon the exertions of individuals in demonstrating their upright, gentlemanly qualities and insisting on fitting treatment by others.15 Sometimes this meant standing up to judges. Fortunately the most severe and prejudiced critics on the bench—Kenyon, Thurlow, Tenterden, and Gibbs (who had called attorneys ‘the growling jackals and predatory pilot fish of the law’16) had no successors in their exalted places, but Abinger CB passed a casual aspersion on the lower branch and several others allowed barristers undue latitude in disparaging solicitor witnesses.17Since plenty of lesser judges were also prone to assume the worst of solicitors, it was important, as well as courageous, for Fairfield to stand his ground against Master Stratford and that county court bullies such as Lefroy should not go unchallenged.18
(p.1111) Social relations with the bar were a matter of acute sensitivity. Stephen’s assertion that ‘there was not much intercourse’ between the professions needs the caveat that their own etiquette made some barristers preternaturally wary of anything that might savour of ‘huggery’.19 In the 1880s, C. F. Follett’s complaint was revealingly different: he felt gracious after-dinner assurances of perfect equality between the professions by leading barristers were just a ‘convivial compliment’, neither meant nor felt.20
Such protestations were not always insincere however, and Lord Selborne may be believed when he wrote that to treat solicitors as a separate, inferior, caste was ‘simply absurd’.21 It was the struggling barrister who was keenest to claim a distinction which, if it existed at all, could not pretend to that ‘visible superiority’ Stephen had so vehemently denied.22 Solicitors sought to assert their place in the hierarchy of professions. Striving to elevate themselves onto the same social plane as the bar, the church, and the army, they acknowledged doctors as equals but claimed a superiority over the ‘confessedly inferior’ latecomers to professionalism, the architects, auctioneers, land valuers, estate agents, and civil engineers, and later tried to keep the upstart accountants in their place too.23
A measure of solicitors’ success is that they gradually became less frequent targets for cheap invective by politicians. Brougham, who never seemed able to forgive his treatment at the hands of the attorneys on the northern circuit, was a notable offender24 and in 1854 Pleydell Bouverie (a barrister) asserted, apparently seriously, that ‘the two great evils of the country were taxes and attornies’.25 Such sneers grew rarer and even in fiction (where given the Victorians’ appetite for tales featuring inheritance and lawsuits they featured prominently) solicitors were less often found as villains.26
As Sir George Stephen and others emphasized, all depended upon character. A ‘good’ education was supposed to produce a good character, but even where it did not, the outward appearance could at least be preserved. William Duignan’s father was a drunkard at home, but maintained his practice as a respectable Birmingham solicitor,27 and he was not the only whited sepulchre in the profession.28 An appearance of gentility helped attract the better sort of client and that (p.1112) in turn reinforced the respectability of the solicitor; for as Trollope wrote: ‘[i]s it not remarkable that the common repute which we all give to attorneys in general is exactly the opposite to that which every man gives to his own attorney?’29
The cumulative effect of each prosperous family having its own ‘respectable’ family solicitor gradually destroyed Trollope’s paradox. By 1900 solicitors were no longer commonly found under ‘trades’ in street directories, nor did they prudently style themselves ‘gentleman’ rather than acknowledging their profession.30 Criticisms of the law hardly diminished, but unlike Bentham’s day, its defects were no longer routinely laid at the door of the lower branch.31 It did not achieve that happy equation of practitioner with gentleman the bar commanded, and within the profession there were still big divisions; indeed, one consequence of the respectability of most solicitors was that disreputable clients would be driven to seek the other sort, and when the profession was overstocked there was seldom any difficulty finding such a one.32 At the start of this period a substantial body of attorneys belonged to what has been called an ‘uneasy class poised precariously just within the bourgeoisie’.33 Most consolidated their position in respectable society, but a minority slipped into an unlabelled quasi-class along with other men whose professions were respectable but whose own practice was not. They were the men the law societies were anxious to disown or blacklist if they could not drive them from the district.34
The defalcation scandals of around 1900 cost solicitors some of the improved reputation they had so painstakingly built up,35 but a fortuitous opportunity to repair the damage was at hand. Unlike barristers, solicitors who volunteered for service in the First World War were not automatically given a commission; nevertheless of 26 members of the Nottingham Law Society who gave their lives in the conflict, 23 died as officers. Solicitors had demonstrated that they could die as gentlemen.36
(p.1113) 2. The Sociography of the Solicitors’ Profession
The Size of the Profession
In the view of most laymen in Georgian England there were too many attorneys and they included many pettigfoggers, unscrupulous fomenters of discord, and promoters of lawsuits. Reputable practitioners attributed most of the disreputable practices to men who practised as attorneys without being properly qualified and it was Yorkshire attorneys whose petition for action had triggered the Attorneys and Solicitors Act 1729.37
A return produced in connection with the legislation showed more than 4600 attorneys and solicitors on the rolls of the superior courts.38 This was felt excessive and the Act limited each attorney to two articled clerks at one time. It prescribed a five-year apprenticeship and an examination before a judge as a condition for enrolment, airily restricting the total number to that which ‘by the ancient custom and usage of such court hath heretofore been allowed’.39 Though the Act failed to curb numbers, it gave the Society of Gentlemen Practisers and local law societies a weapon against unlicensed practitioners, but an unknown number of these—‘hedge lawyers’ and failed businessmen—continued to make a living.40
The real constriction upon the size of the profession was the cost of entry, not only the premium paid for articles but the expense of living unwaged for those five years, especially as it became less common for apprentices to live in with their master. Pitt’s taxes upon articles and admissions, and on the annual practising certificate, were further discouragements, yet the first 30 years of the nineteenth century witnessed rapid growth.41 Between 400 and 600 sets of articles were being registered and practising certificates climbed from the 5000s to the 9000s, an annualized rate (3 per cent) remarkable even for a period of fast population growth. From the mid-1830s it slowed notably and entrants actually declined by 14 per cent in the 1850s. A period of equilibrium followed until the (p.1114) 1870s, causing a fall in the ratio of solicitors to population.42 In Birmingham it fell from 1:1690 in 1831 to 1:1790 in 1871, and Birmingham also shows the subsequent resumption of expansion, especially in the 1880s, to 1:1450 in 1901.43 Nationally, practising certificates issued were in the 16,000s from 1900 but a decline in articles registered, from a peak of 900+ a year in the 1880s and above 600 almost every year to 1903, suggests that the profession was becoming less attractive; by 1913 they had slipped below 500, the lowest for half a century.44
In 1911 more than 11,000 practising certificates were issued against around 10,000 in the mid-nineteenth century, but it must be noted that the increasing number of qualified men working as managing clerks did not usually take out a certificate and that there was still an unknown number of unqualified practitioners. These were quite numerous to judge from the persistent complaints, but a more effective sanction in the Solicitors Act 1874 and determined action by local law societies probably reduced their number.45
The ‘lower branch’ was much bigger than the practising part of the ‘higher’, though the latter grew bigger in proportion: in 1841 there were five solicitors to each barrister; by 1911 there were four. In the 1841 census solicitors were outnumbered by clergy and doctors/surgeons but were much more numerous than other professions. By 1911 many of them had closed the gap appreciably and solicitors were not numerically pre-eminent.46
There is no simple explanation for the fluctuations in solicitor numbers. Internal factors contributed, the Edwardian contraction for instance resulting partly from a species of ‘birth control’, as a market response to the impact of a property slump.47 But the experience of one profession cannot be treated in isolation from a consideration of opportunities elsewhere. Thus, while Robert Maugham attributed the slowdown in the 1840s to changes in the common law and bankruptcy rules, Sir George Stephen pointed to poor prospects in the armed forces having underlain the rapid expansion after Waterloo.48
Variations were partly the result of the Law Society’s own professional examinations. Both the final (1836) and the preliminary and intermediate (1861) were at times manipulated to control numbers entering the profession. However, many (p.1115) who failed first time persevered until they scraped through. Too much time and money had been invested, at any rate by the intermediate and final candidates, for many to abandon the profession after one reverse, and there were many family-based firms with a family member like J. E. Underhill of Preston’s W. Banks & Co struggling to qualify, so standards could not be raised too high.49
Age, Race, and Social Class
The profession’s age profile changed substantially over the nineteenth century, the proportion of young men falling steadily from a high point produced by the expansion of the early decades; under-35s comprised 31.5 per cent in 1851, only 26.5 per cent in 1911. Curiously, the trajectory for elderly men (55 plus) was different, peaking at 25.2 per cent in 1871, falling to 17 per cent but rising again to 21.8 per cent in 1911, which may reflect a tendency for successful practitioners to retire earlier in the most prosperous period. Throughout the period, however, the typical solicitor was a middle-aged man.50
He was also an Englishman.51 Non-British citizens were not admitted and there are no complaints to suggest an influx of Scots or Irish. In 1854 the Law Society promoted a bill giving reciprocal rights to English and Irish solicitors, but its Irish counterpart, sensing that despite its disarmingly equitable appearance it would benefit London firms most, ensured its failure.52 Despite its ‘United Kingdom’ title, the Law Society made no attempt to recruit Scots, and without mutual recognition of qualifications, the cost of qualifying in England probably deterred most Scots and Irish.53 Unlike the bar it did not provide access to colonial posts, so there was no parallel to the bar’s mass of colonial students. A few brave souls did set up in practice, but probably found the going hard.54
Unlike barristers, aspiring solicitors did not need to disclose their father’s occupation, so we are less well informed about their background. It was once generally assumed that their struggle for respectability was accompanied and assisted by a gradual elevation in the social origins of new recruits, but this may be an over-simplification. Miles suggested that an influx of men of a higher class provided the impetus for that struggle, and though his method probably exaggerates the (p.1116)profession’s gentility, it may already have been more of a ‘haven for the privileged’ and less of a ladder for upwardly mobile men of humble birth than was once thought.55
As with the bar, the landed gentry’s proportional decline as a social group was mirrored in their contribution to the profession, and it may be that the big intake in the first third of the nineteenth century included a high proportion of men from a lower class, including those ‘low people’, shopkeepers and mechanics, whom Stephen identified as a substantial sub-group in the 1840s.56However, lack of statistical evidence has allowed Stephen’s breakdown of recruits undue prominence.57 Stephen’s omitted solicitors’ sons, who would be expected to feature prominently; in a study of Birmingham solicitors they number 10 out of 28 in 1851 and 30 out of 78 in 1900,58 and even if that over-represents family continuity it suggest that they formed the biggest single contributor to the profession.59 By 1900 and probably long before, the second biggest was other professions, whose tendency to cross-fertilize each other was well known.60 Among the others few were from the lower strata. It is not difficult to find examples of men climbing to eminence within the profession from humble birth (or more rarely, like David Lloyd George, to wider fame via the profession), but they were exceptional and unlike the bar, solicitors preferred to boast of their respectable origins rather than how accessible their profession was. Both exaggerated, but the difference is revealing.
In 1914 the profession was still exclusively, but precariously, male. Women had been refused permission to sit the examinations and a father had been denied the right to article his daughter.61 A debate at the 1912 annual provincial meeting (p.1117) confirmed that most solicitors were opposed to women in their ranks, but with several professions, especially medicine, having already yielded and in a climate of militant suffragism, a legal challenge was inevitable. It came in 1914, and with the authorities on either side of the flimsiest, the Court of Appeal preferred the status quo.62 The relief of conservatives was to prove short-lived.63
‘Public school education, far more than university education, became the hall-mark of the later Victorian professional man’,64 and at the Law Society’s annual provincial meeting in 1881 a speaker asserted that ‘our profession is now largely recruited from the public schools’.65 Since the Committee on Legal Education in the 1840s was so impressed with the deficiencies in the general education of aspiring solicitors that it suggested an entrance examination to ensure a basic grounding in ‘the so-called commercial education…, Latin, Geography, History, and the elements of Arithmetic and Ethics, and one or more modern languages’, this suggests a remarkable transformation. It is likely, however, that the Committee was unduly disparaging and the speaker too sanguine.66
Since the lesser gentry were still providing a substantial proportion of entrants in the first half of the century there must have been plenty of public school men in its ranks. The best family firms were already public school educated; G. B. Gregory followed his father to Eton; Edward Boodle’s sons went to Charterhouse and Harrow; sons of J. W. Freshfield and William Vizard were at Charterhouse and Eton respectively. In some towns a reinvigorated local school supplied a suitable education more cheaply and conveniently. Birmingham had King Edward VI Grammar School,67 Manchester its grammar school, and York, St. Peter’s, while nonconformists and evangelicals who shunned the public schools had academies of their own, such as Warrington. For most of the less affluent middle class, however, educating sons was a problem until the opening of new public schools whose education mimicked the older foundations’ emphasis on character (p.1118) and gentlemanliness while making limited concessions to ‘usefulness’.68 They proved popular with solicitors, Thomas Paine sending his sons to Rugby, Henry E. Norton his to Marlborough. Because only the more prosperous firms, which formed the core Law Society membership, could afford this, members were likely to gain a false impression of its prevalence. In fact many solicitors still had to rely on obscure private schools and even board schools, whose products needed crammers to help them through the preliminary examination.
Beyond school the legal professions remained distinct. University education was the norm for barristers but the preserve of a minority of solicitors.69 The cost aside, many fathers felt it an extravagance for a son destined for the lower branch, especially as it postponed his entry into practice and therefore his financial independence.70 Some fathers who were themselves solicitors felt with William Gray’s that ‘there is a dryness and a mechanical labour about the Attorney’s desk which would be insupportable and irksome to a young man from a University’.71 Such sentiments might be self-serving but the unreformed universities were a poor preparation for drudgery.
Nevertheless graduate numbers rose and 16 per cent of new articled clerks in 1881 were said, probably with some exaggeration, to be Oxbridge men.72 Though a few of the best-known solicitors, Sir Albert Rollit (University College) and Sir George Lewis (King’s College) for example, were London graduates, the older universities still dominated and their products gradually infiltrated the best firms. The brilliant Dudley Baxter joined Norton Rose from Trinity (Cambridge); R. S. Taylor IV (Charterhouse and Trinity) joined Taylor and Humbert (1893); Booth’s of Leeds had W. H. Wade (Cambridge, 1894), and by 1913, when Henry Wansborough’s son joined the family firm from Oxford, graduates were commonplace at Coward Chance.73 Indeed, for some, the college connection served to win them clients. Few were so fortunate as John Withers, who perseveringly, and ultimately successfully, lobbied to become the London solicitor for King’s College, Cambridge, which provided a steady flow of work over several decades.74
(p.1119) Geographical Distribution
Unlike barristers, most solicitors practised outside London, where about one-third were probably based throughout this period. Though legal services had become more concentrated during the eighteenth century and attorneys were found in fewer places, their number had fallen in proportion to the population and their distribution did not echo population shifts.75
There is no similar study for the nineteenth century, but on the one hand there were very large increases in solicitor numbers in parts of the midlands and north, notably in Liverpool and Birmingham,76 and on the other village attorneys such as Benjamin Smith of Horbling and John Howarth of Rippondon became a rare breed; in Kent in 1802 Penshurst, Newington and Staplehurst each had its attorney, but only the last still had one in 1914.77
There were few complaints that solicitors were hard to find, as firms were quick to set up branches where they scented business opportunities. Wansboroughs, based in the market towns of Devizes and Melksham, tried the water at Weston-super-Mare in 1898; Blackpool was colonized from the ‘legal honeypot’ of Preston, which boasted 50 solicitors in 1820, and Alfred Tolhurst sent a son across the estuary from Gravesend to Southend.78 With county courts in almost 500 locations even the smallest town could support a lawyer, and apart from the restrictive covenants which prevented former articled clerks from starting up a rival business, practices found no effective way of keeping out newcomers. Scale charges operated by local law societies may have some effect but the experience in Blackpool suggests they were not very effective; making a decent living, however, was much more difficult, at least in a venerable city like Canterbury with an entrenched core of long-established firms.79
(p.1120) 3. Solicitors in Practice
The Size and Shape of Practices
Solicitors’ firms remained for the most part a cottage industry and the characteristic figure throughout was the sole practitioner, who in 1780 formed 90 per cent of provincial firms and more than 75 per cent of those in London.80 The proportion slowly decreased but in 1843 Lincoln still had only two partnerships in its 16 firms, Canterbury in 1898 just three out of 11 and as late as 1925 two-thirds of Birmingham solicitors practised alone.81 This sits oddly with claims that the Victorian solicitor needed to be more knowledgeable than his Georgian predecessor,82 but several factors made sole practice easier than before. Greater dependence upon office-based work, especially conveyancing, coupled with the penny post and better transport, meant less time spent in court and on the road, and fellow practitioners could be consulted on an unfamiliar matter. Brougham said that London solicitors knew less because they so readily referred matters to counsel and named several from big northern towns as the best he had encountered.83
Many became or remained alone by choice. William Gray thought partnerships undesirable and John Taylor took a partner only when unable to find a good managing clerk.84 For others a partner was a necessity if they were to practise at all. There were usually more men qualifying than openings and the cost of setting up alone, estimated at £200, restricted that option to those with family money or who, like W. H. Barber, had saved enough.85 Each town had one or two like Stephen’s Mr Sharp, who rented a cheap room with minimal furniture, acquired an office boy as clerk and hoped to live off debt-collecting, casual county court work, and the odd conveyance.86 They were prone to undercutting, sent (p.1121) their clerks touting for business and generally undermined the profession’s worthy efforts to improve its image. Most men had to leave the town where they were articled because of the common restrictive covenant protecting the principal from having clients poached87 and if a man lacked useful contacts his choice of town might be quite arbitrary; a casual remark on a stagecoach took W. B. Young to Hastings; Harry Cartnell chose Preston because his wife liked the name; Frank Sinclair picked out a midlands town at random.88 Others, like Edward Spence and E. W. Field, were able to pool resources with a similarly circumstanced friend or, like Clifford Turner, found a partner with money but little energy.89
Georgian partnerships were generally two-man affairs, most often familial and most commonly father and son. This changed little.90 In 1808 only one London firm (Winter and Kaye) had four partners, and by 1910 just four in a sample of 50 had that many, with one other having eight.91 Outside London few exceeded three. Some City and West End firms had a more complicated structure: N. H. Smith took on a tax specialist and an administrator; Slaughter and May had assistant solicitors; Norton Rose principals, subsidiaries, and salaried partners.92 The statutory maximum of 20 partners set in 1862 was never approached.93
An obvious reason for this was that few firms made very large profits and hiring employees made better sense. Moreover partnerships were inherently risky.94 If one partner misused the firms’ money in unsuccessful speculations like Robert Baxter, or embezzled it like Charles Kaye at Freshfields or Jacob Mould at Taylors, the other was fully liable for crippling debts.95 Even without such dramas, disharmony or divergent ambitions led to many partnerships being dissolved before their term. Family members were safer, even if less able; hence reluctant sons like George Harris and Michael Letts were corralled into the business,96 though (p.1122) some insisted on independence, like Thomas Wilde and at least one of the prolific Badger family in Rotherham.97 If there was no son, a nephew or son-in-law might be pressed into service, W. M. Guichard resorting in succession to two sons-in-law.98 Firms’ names are deceptive, for it gradually became commoner to retain the founder’s name when ownership changed, but published histories suggest the family firm remained the norm. Greater continuity came about with more investment in premises and office equipment and a bigger base of regular clients as firms depended less upon litigation and more on conveyancing, probate, and corporate business. This enlarged the value of goodwill, raising the price of purchasing a practice and making takeovers and mergers more frequent.99
In the Letts firm in the 1820s even the girls were called in to help bundle letters etc and when Michael Letts reluctantly joined in the 1880s the three partner-brothers were assisted by another brother (not a partner) and two clerks who were nephews; only an elderly writ-server was not a blood relative.100That degree of concentration was exceptional, but even in the leading firms partnerships were often reserved for family unless circumstances necessitated otherwise. A succession of able men learned their trade at Freshfields without that opportunity, while not until 1897 did Boodles, with one son too young and the other not capable, look outside. Even the progressive Norton Rose still had ‘Norton shares’ and ‘Rose shares’ and theirs was one of several cases where this inwardness had bad consequences, since third and fourth generations seldom inherited the ability and drive of the founders.101 Some were more open, like Ashurst, Morris Crisp, and Linklater and Paines, while in Birmingham, whereas Beales was decidedly family oriented, Wragges was very willing to provide openings for Walter Barrow and T. W. Horton, men with excellent business connections.102
The apprenticeship for attorneys had been fixed at five years in 1729, though reductions to three years were offered to graduates in 1821103 and ‘10-year men’ (p.1123) in 1860.104 As country practitioners left off going to London to conduct litigation and concentrated on conveyancing it became common for their articled clerks to complete or follow their term with a year in a London practice, often their firm’s agents.105 London articled clerks sometimes spent their last year with a licensed conveyancer or conveyancing barrister, though this was becoming less common.106
The apprentice had customarily entered articles at 16, though many started earlier. He became a member of his principal’s household (which usually doubled as his office) and the board and lodging he received offset the premium required of all but partners’ sons.107 By the 1820s market forces and changing customs were working in the employer’s favour, enabling him to demand more and provide less. Openings did not keep pace with would-be entrants, and with a solicitor limited to two articled clerks at any time and some taking none but their own sons, it was a seller’s market.108 Moreover, it became easier to recruit literate clerks for copying work, so that articled clerks in their early years were less useful.109
Accordingly, the cost of becoming a solicitor increased. As well as the duty on articles, the aspirant had to find a ‘liberal premium’: £200 was given as the norm in mid-century but the better London firms wanted up to £500110 and as he now had to find food and lodging besides, the overall cost of qualifying was £700 to £1000.111 A few able and deserving office clerks were given their articles, leading to complaints in the 1840s that unscrupulous firms poached from their rivals by this lure, but they were the exception.112
It was a commonplace that the life of an articled clerk, especially in his first years, was one of drudgery. Office hours were long, working conditions often bad, (p.1124) and the work monotonous and repetitive.113 Though some toiled hard, others were underemployed. Busy principals tended to consign them to a managing clerk (‘an illiterate man of middle age and considerable self-importance’114), who might well be jealous of them and begrudge them interesting work and practical education.115 Near the end of articles the clerk might, like Thomas Loughborough, be given a degree of responsibility, and his life become more interesting,116 but some could not endure to wait. One of the Farrars quit the family firm in disgust and T. C. Turner scraped enough money together to transfer his articles to a better firm.117 Though it was notorious that service in articles often fell below an acceptable standard, there was no real possibility of imposing one.
With no formal training, the articled clerk was advised to prepare himself by private study and there were books advising him how to go about it. The early ones were mostly over-ambitious and unrealistic, so most probably muddled their way through on what they could find in the office.118Lectures provided by the Law Society from 1833 were felt too academic and anyway were open only to those whose principal was a member; later ventures in Manchester and Birmingham were also unsuccessful.119 An attempt to organize on a national basis to promote their cause was conceived on too grandiose lines to attract the support of leading solicitors and other key figures,120 and though student debating societies flourished at times (they held a national congress in 1872), clerks were too scattered and divided to push their interests effectively.121 The most they achieved was the belated implementation of the Legal Education Committee’s recommendation for leave to prepare for their examinations.122
The attorney had always had his clerk, Sancho Panza to his Don Quixote, though some managed without one for a long time.123 When E. W. Field became articled (p.1125) to the reputable London firm of Taylor Roscoe in 1821 he found only one clerk, but that was becoming unusual.124 By 1832 it was reckoned that most such firms had at least four, with 7000 clerks to 3000 solicitors in London and 9000 to 4000 in the provinces. Census figures point to a rise overall from 16,000 in 1851, via 24,500 in 1881 to 34,000 in 1911, when the ratio of clerks to solicitors was estimated at 2½ to 1.125 Among the bigger firms the normal range was between 5 and 9 to 1, but could go much higher—20 to 1 at Norton Rose in the 1860s. Indeed that firm had caused a sensation at the height of the railway boom by housing almost 300 clerks in temporary offices for a massive copying operation, but none of the firms with published histories comes near that on a regular basis; Norton Rose had 70 or so in the 1860s, Gregory Rowcliffe 56 in 1889, while Coward Chance needed six office boys and had to open a second office.126
Some firms developed an elaborate departmental structure but the threefold division into common law, conveyancing, and copying clerks seen at Ellison Nares in 1800 remained the commonest.127 The outdoor clerks had the most varied and hectic life and were mostly of the sharp, combative type who jostled for chambers appointments at the ‘beargarden’, battled tenaciously over costs, and negotiated fees with equally abrasive barristers’ clerks.128 They had a reputation for boisterous joviality and a fondness for drink,129 especially if they imbibed the ‘unhealthy moral atmosphere’ of the SCJ Central Office.130 Conveyancing clerks were altogether more sedate, spending their lives hunting down and adapting precedents, assembling abstracts of title and suchlike.131 Copying clerks were the least well paid and were seldom found in smaller offices.132 In London and big towns formal documents were mostly sent to law writers and in a small place like (p.1126) Great Yarmouth when a mass of urgent copying came in everyone from the principal downwards went to work.133
The law writers were a distinct sub-profession, operating mostly through law stationers. There were three grades: an elite properly qualified through a five to seven-year apprenticeship; the ‘trade’, who for various reasons were no longer in regular work; and the ‘wallers’, unqualified men who had somehow picked up the know-how. By the time they featured in Booths’, Life and Labours of the People in London law writers were an endangered species.134
There can be no typical firm, but Preston’s W. Banks & Co illustrates the structure of a prosperous provincial practice of the 1880s. William Banks was assisted by his brother and a cousin and employed a conveyancing clerk, a shorthand writer, a bookkeeper/ledger clerk, a cashier, a general clerk, and several junior clerks.135 In big firms with distinct departments the heads could earn considerable salaries; Norton Rose paid Edmund Harvey £400 as chief clerk of accounts, though he still embezzled £17,000.136
Most clerks had a much harder life. A few were so well entrenched that they worked what hours they pleased, though outdoor clerks needed careful watching or they would lounge around the courts when their mission was done.137 In the 1820s standard office hours were 8 am to 9 pm, though many London practices were quite idle during outside term. However, in 1837 the Law Society persuaded the courts to close their offices earlier and 6 pm gradually became the norm for solicitors’ clerks, though unpaid overtime could always be exacted. One after another, solicitors in provincial towns shut up shop at Saturday lunchtime, but only when the judges were persuaded to discontinue Saturday afternoon sittings in 1876 were metropolitan firms able to follow suit.138
If solicitors’ clerks were working shorter hours, in other ways they were probably becoming worse off than other clerks. Solicitors had long been reckoned among the meanest employers, although comparisons with government, banks, and insurance companies were not wholly fair as they mostly demanded better educated employees than the boys whom solicitors took on at 12 or 13.139 They usually started at 5s a week and once shorthand had become the vogue often (p.1127) could not progress beyond about 15s without it.140 Big firms were not necessarily the most generous payers. In 1874 one Liverpool employer paid 21 of his staff less than £100 per annum and another 26 no more than £200. Freshfields paid many clerks just £60–70, though by taking home copying and various other shifts they could raise earnings to £100. Linklater & Paine, at between £2 10s and £4 a week, were less tight, but on this clerks had to dress respectably and save for their old age.141 Since no pensions were provided, many firms had a few decrepit veterans (at least one clocked up 80 years), and their presence reinforced the conservatism of most office management.142 The situation of a clerk who was dismissed was desperate: no reputable firm would hire him and he must become a process server or worse.143
By 1900 solicitors’ clerks, like many others in the black-coated army, were feeling aggrieved and anxious, their livelihoods under threat from a conjunction of circumstances.144 The staple work of copying was being superseded by printed court documents and by the arrival of copying machines which, though messy and unreliable, proved unstoppable.145 So did the typewriter, and with that came the woman typist. While in 1882 the suggestion that they be employed in solicitors’ offices could be scorned, within 20 years it was becoming a reality. The less conservative firms recognized their one great advantage—cheapness (they were generally paid only £50–60 per annum)—and though women clerks were still few, their number was growing.146
The more senior clerks had another problem besides. A large pool of qualified solicitors was competing with them for the position of managing clerk which was the summit of their ambition, reducing opportunities and also depressing salaries.147 There had been a United Law Clerks Society for the London area since 1832 but it was chiefly a benefit society. Now local associations were formed, some mounting a hopeless campaign to counter the trend towards a more gentlemanly, better educated profession by demanding an easier route to qualification for (p.1128) clerks. In reality, however, effective trade union action was impossible in such a fragmented occupation.148
The important role played by the managing clerk was a distinctive feature of the English legal profession. There was no formal definition,149 but he was the man who (advertisements insisted) must be able to work without supervision and he bridged the divide between admitted and unadmitted. It was common, indeed perhaps usual in London, for the newly qualified to start in this way, though it is not known what proportion of managing clerks were admitted men.150
This practice reflected the shortage of opportunities. It was seldom less than three years before a former articled clerk would be offered a partnership, and then usually only in return for a substantial capital contribution. There were a few assistant solicitors and salaried partners in private practice,151but few openings in the civil service or the business world. Railway companies began to revive the practice of hiring an in-house solicitor with James Blenkinsop in 1862, but it only became common enough to rate discussion in Law Society circles in 1909.152
If some newly admitted solicitors became managing clerks through necessity, for others it was because they shunned the responsibilities and risks of striking out alone or in order to gain further experience. Considerable numbers came to the big City firms for the latter purpose (Gregory Rowcliffe had eight of them in 1899153) but it was not confined to London; Tilney Barton for example worked successively in Cirencester, Malvern, and Truro.154
(p.1129) Pay was generally low and as the profession expanded their bargaining position weakened. £150 had always been a common starting figure, though some accepted less (W. H. Armitage became an assistant solicitor in Halifax on just £75)155 and the register opened by the Law Society in 1902 offered plenty of men willing to take a salary well below the minimum for a middle-class existence. They must have had private means or a parental subsidy, and it is no wonder unadmitted clerks were bitter when employers gave them preference.156 Of course, a good managing clerk could expect substantial pay rises. Edward Spence’s went up from £150 to £250 before he left for the bar, Thomas Paines’s from £200 to £400 before he was offered a partnership.157 Bourchier Hawkes got his partnership at Coward Chance by handling Cecil Rhodes’s affairs so capably that he was indispensable,158 and if no partnership was to be had there might be a new branch office opening; Wansborough’s paid its Devizes manager £150 plus a 10 per cent commission on the introduction of new business.159 Managing clerks were prominent in the United Law Clerks Society but eventually formed their own Solicitors’ Managing Clerks Association in 1892. It proved equally unsuccessful in improving the conditions of its members however.160
The Law Institution’s prospectus (1823) struck an anachronistic note in promising ‘an exchange to be open to attorneys, solicitors, proctors and such principal officers at all hours of the day but some particular time to be fixed for the general time of assembling; to be furnished with desks or enclosed tables running on each side of the room for the whole length of it, affording similar accommodation to those in Lloyd’s Coffee-House’.161 In fact the days when attorneys ‘in the evening were accustomed to frequent the coffee-house in the neighbourhood for the purposes of business’162 were gone, and with them the peripatetic attorney with his business papers in a green bag, apt to be mysteriously elusive whenever documents (p.1130) were to be served on him.163 Whether their chambers were in the inns of court (mostly in Gray’s) or the inns of Chancery (especially Cliffords), or whether settled elsewhere, attorneys had acquired fixed business abodes.
It was still common for traders and professionals to live above the shop, sometimes (as for John Taylor when he set up in Bolton) from financial necessity, but it was declining.164 Thomas Tyrell and the Wilde family were unusual among City solicitors in the 1840s to be living at their offices and the Letts family became distinctly eccentric in continuing to cram themselves into the upper floors of their Holborn house until the end of the century.165
Whether doubling as home or not, the office, even a high-class practice such as Vizards, was likely to be shabby, dingy, incommodious, and unwelcoming. Trollope’s much quoted remark that ‘there is, I think, no sadder place in the world than the waiting room attached to an attorney’s chambers in London’, was echoed in other fiction, in memoirs, and magazines.166 Most solicitors affected at least a show of disorder and discomfort, perhaps to avoid the impression that they were profiting unduly from their clients.167
The habit was, of course, not universal. A few firms, like Paris Smith and Randall, were fortunate to have acquired imposing premises, and others had new ones built. Aristocratic Frere Cholmeley employed Lewis Vulliamy for theirs in Lincoln’s Inn Fields and on a more modest scale Tolhursts made themselves unique among Gravesend firms with a brand new office in 1906.168 George Lewis refurbished his to impress clients with its opulence and confidentiality, and for a very different clientele Sir Frank Crisp of Ashurst Morris Crisp equipped himself with a huge office, suitable for directors’ meetings, and an imposing library.169 In due course commercial firms in the great cities moved into more spacious and showy buildings, acquiring necessary space and emphasizing that they belonged as much in the business community as in the legal. Ashurst Morris Crisp for instance moved into grand premises in Throgmorton Avenue, while newcomers Slaughter and May mortgaged themselves heavily for a new office in Austin Friars.170
(p.1131) In office equipment and working methods most solicitors were known for an ‘intense conservatism’.171 In 1879 Ashurst Morris Crisp were among the first to install a telephone, but even the big firms (Coward Chance, 1899; Gregory Rowcliffe, 1903; Linklater and Paines, 1907) were surprisingly slow to follow.172 It was 1914 before Andrew’s, one of Lincoln’s biggest firms, had one and some senior partners, like Banks in Preston resisted still.173 It was the same with typewriters. Entrepreneurial newcomers Kenneth Brown Baker had them early while stately Coward Chance still had only one in 1912.174 Even electric lighting was for long too radical for Freshfields.175 The adoption of new methods for filing, storage, and accounts was equally slow. Solicitors were far more anxious to impress clients with respectability and trustworthiness than innovation and efficiency.176
The Georgian Transformation
During the eighteenth century attorneys were transformed from men whose chief livelihood was lawsuits into men who undertook a much wider range of business and made themselves indispensable to the propertied classes.177 Country attorneys in particular mostly sought to avoid litigation work and when they did undertake it, employed firms like Farrers as agents, sharing the profits.178 They looked instead to perform the services landowners needed; they drew wills and settlements; were stewards to manorial courts; chased rents and arranged repairs; audited accounts; and collected debts.179 Where landowners developed urban (p.1132) property attorneys acted as middlemen between owner and builders.180 Nor were they content to be just the servants of the landed classes. They were eager and active participants in enclosures, canals and turnpikes, insinuated themselves into local government and some, like J. S. Carsdale of Leicester, profited from the innumerable disputes over pauper settlements.181
Above all, they moved into conveyancing and allied work such as preparing auction particulars, and their extensive involvement in property transfers afforded them the opportunity to play a pivotal part in commercial and industrial development. They were the conduit between capital seeking a home and enterprises needing finance. Attorneys brought the parties together and drew the mortgages which secured the investment,182 and when country banks started to supersede them in this role attorneys like William Alcock in Skipton were among the first to join those ventures.183 In all these ways the attorney became an ubiquitous figure in small town and country society, far removed from the pettyfogger who still characterized most literary representations.
Litigation in the superior courts, particularly in the King’s Bench and Chancery, was reviving by the 1820s.184 Provincial litigation was mostly channelled though a small number of London agency firms of great respectability for whom litigation was a major source of profit and business.185 Although they were complicit in the defects of the courts, their reputation was unimpeachable, but there were others active in this field who undoubtedly justified the popular belief that the profession actively encouraged lawsuits for its own profit,186 men like John Smith in (p.1133) Birmingham and Roger Whitehead in Liverpool.187 Every big town had its share of Smiths and Whiteheads, whose clerks touted for business around the courts, and a few exploited the possibilities of an old local court, as John Williams did with the Wirral Hundred Court;188 a strong argument against proposals to expand local justice was that they would give more opportunities to such men. Even the courts of requests, which had originally discouraged legal representation, were being opened up to lawyers, often of the most dubious sort.189
The agency firms had a vested interest in keeping Westminster Hall as the focus for suits and were instrumental in defeating Brougham’s local courts bill in 1833,190 but they were not alone in being dismayed when the county courts were introduced in 1846. So were those who practised on their own account in the superior courts191 and the many solicitors who got their livelihood from collecting debts or buying them up wholesale at a discount and pursuing the debtors themselves; this was how the respectable Cambridge firm of Gunning and Francis got started in 1839 but many were less reputable.192 For them the establishment of a cheap, accessible forum for creditors seemed a disaster, for although solicitors had audience in the new courts, costs were set so low as to make it uneconomic.
In fact the volume of business, the extension of the money limits, and the enactment of a less miserly scale of costs soon altered the picture. Figures for Liverpool in the 1850s showed more than 1500 cases where one or both parties was represented, overwhelmingly by a solicitor rather than a barrister, and an indication of their importance to the profession is that in 1850 the Sheffield law society imposed a scale on its members and forbade undercutting.193 The merits of county courts divided the profession. The Law Society, on which the agency firms were strongly represented, was itself so split that it sent several witnesses to the Romilly Commission to offer different views, while those who represented it before the Judicature Commission confessed to having no mandate.194 Given their background, however, it is not surprising that they opposed further extensions of (p.1134)jurisdiction. In 1878 E. F. Burton, the president, maintained that ‘a man of position cannot go into the county court’ and ‘when gentlemen are summoned to the county courts their solicitors cannot go with them’.195 Some leading firms in the great cities aspired to reproduce the metropolitan position regionally, making themselves agents for the regional branches of the High Court which they demanded.196
In London and other big cities only a minority of solicitors regularly undertook county court business; indeed many shunned litigation altogether, like A. L. Howarth in Bolton, who ‘had a horror of litigation and avoided as much as he could the bringing of actions and squabbling suits at law’.197 Litigation at Gray and Dodsworth of York was so infrequent that cases were long remembered and George Wyman in Peterborough in the whole of a long life never tried to muster a court practice.198 Though it was said that 150 Birmingham solicitors had appeared in the county court at one time or another, just three firms did the great bulk of the work, while it was estimated in 1878 that only one-fifth of Nottingham solicitors appeared in the county court.199
From the first some realized that a decent living could be made out of the county courts by acting as an ‘attorney-advocate’, conducting all the scattered cases of local solicitors for whom a day in the court would be a waste. This practice was outlawed in 1852 but while it was not a dead letter as Hollams (who never went there) claimed, the prohibition was enforced only sporadically and was readily evaded.200A class of advocates developed whose ‘loud shop-boy manner’ the Law Times deplored but who were often at least as effective as junior barristers,201 men like T. W. Garrold in Shrewsbury, blessed with ‘great energy, unbounded confidence in his own power, and plenty of impudence’, who upset the staid local practitioners as well as Judge Smith.202 County courts might not be places for gentlemen, but for the most part they were not the haunt of the doubtful characters who still plagued the surviving local courts.203
(p.1135) The county court advocates had often to fight for their business, however, and a much more serious set of rivals than the bar were ‘agents’, and ‘accountants’, essentially debt collectors. Among them were disreputable individuals claiming to be lawyers and others who used the names of broken down solicitors,204 but many firms acted for bulk creditors such as mail order firms for whom the county court was just the last stage in the pursuit of a debtor.205 Provincial solicitors were regularly frustrated by a seeming lack of vigour in the Law Society in defending this contested turf and local societies devoted considerable effort to ousting them. Success depended essentially on the attitude of the local judge and was generally greater in rural areas, since judges in large industrial towns often depended on the agents to help them get through the mass of judgment summonses.206
In the superior courts simplifications of procedure in the mid-century hit practitioners’ profits hard and the loss of business to the county courts was a major setback for them.207 There were, of course, specialist areas which were confined to the superior courts and firms could market their expertise in those; thus Lewis & Lewis were noted for libel; Farrers made a corner in Privy Council appeals, and Kenneth Brown Baker became well known defending motorists.208 In addition, urbanization and industrialization brought in more contractual disputes and more torts arising out of damage to persons and properties. In the wake of railway accidents came ‘ambulance chasers’, who were later to be found pursuing motor accidents with the same vigour.209
The overall level of litigation in the High Court remained at a relatively low figure but it became more profitable. Interlocutory proceedings expanded, the volume of correspondence produced in commercial cases expanded and court hours shortened, so cases stretched out longer and costs rose.210 All told, although few firms drew their sustenance primarily from litigation, there were many for whom it was still a valuable source of business and income.
One area still shunned by most respectable firms was crime. Stephen wrote that ‘business of that class [theft] I could not undertake myself’211 and the decline of private prosecutions made it less likely that the leading firms would be approached in a criminal matter. From the early nineteenth century criminal (p.1136) prosecutions at the Old Bailey were almost monopolized by a handful of criminal practices,212 while outside London it was difficult to get any funds even to organize a murder defence, as Taylor found in Bolton.213 Solicitors did criminal work at the sessions however: in 1848 they were given the right to appear at petty sessions and in 1905 were enabled to do licensing work at most quarter sessions,214 useful for a new practitioner. Bosanquet felt the quality and integrity of regular criminal advocates improved greatly over time. When he started out on circuit in the 1890s many were still ‘rough and untrustworthy’, though each county had its local Marshall Hall, men such as Evans of Breconshire and Prothero of Monmouthshire.215
By the mid-nineteenth century conveyancing had become the basis of most practices, particularly outside London,216 and by that time an assertion that it was the least remunerative work was not credible.217 Unfortunately it is not possible before the 1890s to establish how profitable it was, nor even then what proportion of the profession’s income it yielded, but dependence upon it was growing, and dangerously so, for many practices.218
The danger did not come from other professions. In the first part of the nineteenth century, solicitors extended their role in the preliminary stages of land transfer, whether by auction or private treaty, and although auctioneers recovered, and estate agents succeeded in establishing their own distinctive role in the land market,219 after the demise of the certificated conveyancers solicitors had no serious rivals in the work of the conveyancer proper.220 This was not due to the punitive sanctions protecting the statutory monopoly, which were clumsy and ineffectual, but to the obstructions a solicitor could deploy against an unqualified person acting for the other side and perhaps also because solicitors were pricing (p.1137) their services competitively, though they did their best to discourage price competition among themselves.221
How much solicitors actually did charge before the remuneration order of 1883 is not very clear. Notionally at least, charges were calculated in the same outdated manner as those for litigation, by allowances for each attendance and each folio of documents, providing a perverse incentive to long-winded conveyances and unnecessary interviews. However, the taxations which were supposed to protect against overcharging were comparatively infrequent and scale charges were produced by local law societies from the 1830s onwards, suggesting that the allowable elements in the bill may simply have been manipulated to produce what was considered a reasonable charge. If that was the case, it will have done nothing to endear either practitioners or the land transfer system to clients confronted with such a concoction.222
Although the alternative of simple lump sum agreements was allowed from 1870 (subject to approval by a taxing master) it never became popular. Local scales were widely used, since a national one could not be agreed. Finally in 1883 a statutory (maximum) scale was imposed. Local societies continued to use their own, however, and tried to prevent undercutting; not always successfully, for developers and building societies could offer tempting inducements to impoverished or raw practitioners. Still, competition was, at best, muted.223
The danger of relying on conveyancing became apparent when title registration, rather than deeds registration, came onto the political agenda in the 1850s. Its practical effects were very limited before the Great War but the Edwardian period did coincide with a downturn in the property cycle which seriously eroded solicitor incomes from land transfer.224
Business and Commerce
A conventional narrative presents the role of solicitors in business as a gradual decline from a time when ‘inside the eighteenth century attorney, half-a-dozen professional men—accountant, company secretary, and others, were struggling to get out’.225 In this story it was the accountant whose escape was seen as crucial.226 There was no distinct accountancy profession until the 1870s and the (p.1138)Institute of Chartered Accountants came only in 1880. However, accountants had been steadily evolving into a respectable profession at least from 1831, when they were named among those who might be ‘official assignees’ under the Bankruptcy Act (from which solicitors were rather curiously excluded), encouraged by subsequent legislation, first for railways and then for joint stock companies generally, which imposed an annual audit. This provided an essential opening for men like W. W. Deloitte, who became accountant for the GWR in 1849, and accountants acquired influence over clients because they claimed expertise not only in company finance but also in taxation. Solicitors are said to have been ousted from this pivotal and lucrative advisory role largely because of their own reluctance to educate themselves and engage with business in concerns where advice was required. In fact the story is a more complicated one.227
For instance, the early history of railways presents a very different picture. Since attorneys were deeply involved in canals and turnpikes, it is no surprise to find them equally eager to participate in railways and they did so enthusiastically, both as legal advisers and as promoters and backers. The extent and nature of their involvement has been viewed as profoundly bad for the infant industry, with the employment of solicitors on the conventional basis, a ‘ruinous system’, only cured when the companies, beginning with the LNWR in the 1860s, created in-house legal departments.228
In Kostal’s view, solicitors ruthlessly and shamelessly exploited their indispensable knowledge and expertise by ‘fee gouging’—inflating bills by unnecessary (and sometimes fictitious) charges for attendances and documents. This went largely unchecked because the directors were inexperienced, irresponsible, and complicit in various proportions and conscious of their dependence on lawyers to get enterprises up and running. Taxations of bills frequently demonstrated how exorbitant the charges were, yet until the 1850s they were seldom sought, and thereafter it was only the big companies who used them regularly. There is substance to these criticisms. Bills were sometimes huge, Robert Baxter’s to the GNR for 1844–6 totalling a whopping £179,739. Some were certainly inflated, and many solicitors felt that this type of client, evidently careless with shareholders’ money and seemingly going to be immensely profitable, could be charged at a much higher rate than a private individual. But bills included not only disbursements but often the fees of counsel, and it was not the fault of solicitors that the bills covered innumerable pages and comprised huge numbers of small items. (p.1139) That was precisely the system they wanted changed and it made it difficult for a man like Baxter to place an open market value on his services or to negotiate a sensible reward in advance.229
Very few firms profited as much as Baxter, Norton Rose, which maintained 23 railway accounts even after the crash of 1846, or Henry Nelson in Leeds, the GNR agent in Yorkshire and the midlands from 1876 to 1895, whose offices often worked through the night.230 But more small provincial firms had some railway business than might be supposed, since the landowners who funded or promoted a railway often insisted on their own solicitor acting for the company; Kelly and Keene in Mold were one firm which did well on a modest scale.231 The big companies generally employed several firms in different locations—six in the case of the LNWR—so many firms shared in the railway business, at least before the very gradual trend towards taking the business in-house.
Kostal makes other charges against solicitors. He gives substantial credence to allegations that in the proliferation of sham railway companies before the crash of 1845, the ‘most fecund source’ was the ‘scampish attorney…too idle for steady business, and too dissolute to preserve it if they had it’.232Many solicitors were certainly active participants in company promotion—Baxter Norton Rose was a product of the founders’ financial support for rival schemes—and some of these schemes proved to be unsound; thus, John Duncan, solicitor to the Eastern Counties Railway, became involved in an acrimonious dispute over excessive billing and was also behind the Southampton, Petersfield, and London Direct Railway which collapsed in circumstances that suggested it had been always highly speculative.233 Moreover their enthusiasm for promotions grew as the bubble expanded; of 75 schemes registered in May 1845, 31 had at least one-quarter of lawyers (mostly solicitors) among their principal promoters.234 It was freely alleged in the railway press that many of these promotions were fraudulent bubble companies with lawyers exploiting their professional knowledge to become the most able and prolific joint-stock swindlers.235 The evidence for such sweeping and serious accusations is inconclusive. It is unsurprising that solicitors should have entered so enthusiastically into the railway boom and if their commercial judgement was sometimes unsound that is equally unsurprising. Only one seems to have been convicted of fraud, however, and it is not known how many walked (p.1140)away from the crash with their pockets lined.236 If the railway crash left a question mark about the profession’s probity it also provided a confirmation of its entrepreneurial leanings.
Less controversial were banking and insurance, both of which offered profitable opportunities after the remodelling legislation of 1825.237 Farrers were keen on life insurance but benefited most from acting for Coutts Bank. At one time they had a ‘Coutts partner’ who visited the bank daily, and were also involved in setting up the Irish Bank and the National Provincial Bank for Thomas Joplin; subsequently they went in for advising on overseas banking development.238 Coward Chance had the Commercial Union and other insurers on their books and were heavily involved in the world of discount houses and merchant banking. Under Hollams’ sway they persuaded the Institute of Bankers and the Association of Chambers of Commerce to fund Chalmers’ Bills of Exchange Bill in 1882 and they had major banking clients overseas (such as the Bank of Persia) as well as in England.239 As with railways, there were some who sailed close to the wind. Thomas Tyrell helped to found the Bank of London in 1855 but committed such questionable acts when it ran into difficulties that his partner Paine was relieved when Tyrell retired.240
The enactment of the Companies Acts 1856–62 widened horizons, encouraging a boom in incorporation which also attracted business from abroad.241 Solicitors had been condemned for their role in the stock market bubble of 1835–6, though some of them were dupes rather than fraudsters.242There were both sorts in the profession in the 1860s, but it was the enterprising and generally honest City men who were the biggest and most enduring successes. ‘Practitioners were the architects of company law. They authored the basic textbooks and, most important, those collections of precedents that were used, re-used, and reworked in the everyday world of corporate practice.’243 Their activities went far beyond the mechanics of company formation, as a few examples will show.
Ashurst Morris Crisp benefited hugely from the connection with the great grocer James Morrison. John Morris, senior partner from 1862, had immense flair for commercial work, especially liquidations. He made his name in the salvage operation following the Overend Gurney collapse, helped draft the Companies (p.1141) Act of 1870 and amassed a client base of over 300 companies at home and abroad, including Cuthbert Boulter’s National Telephone Company.244 According to Charles Norton, his firm and AMC were involved in practically every major company share issue between 1870 and 1914, so many that Sir Frank Crisp had a printing press on the premises to speed the issue of flotation documents.245
An offshoot of AMC was Slaughter & May, one of whose founding partners, William Slaughter, not only exploited family connections in the City but became intimately involved in building up Julius Drew’s Home and Colonial Stores, though the biggest client was the international financier Emile Erlange & Co.246 The firm’s ingenuity in devising share dealing arrangements occasionally crossed the very blurred line into illegal share manipulation.247
Coward Chance was one of the first firms in the field and represented some of the biggest undertakings in the heyday of imperial exploitation, notably the Imperial Tobacco Company and Cecil Rhodes’s British South Africa Company. The latter embroiled them in some rather murky business when they had to organize the defence in the trial of participants in the Jameson Raid.248
In Dudley Baxter, Norton Rose had one of the first real tax experts and in Philip Rose a man born for commercial law. Rose led them into lucrative foreign loan business, assisted from 1869 by Henry T. Norton, one of the new breed of commercial lawyers. They entered boldly on all the financial novelties of the age, instigated the corps of foreign bondholders to safeguard their interests, pioneered investment trusts in 1868, and branched out from railways into allied industries such as submarine cables.249
The story of Clifford Turner, founded only in 1900, shows that it was relatively easy for an ambitious and enterprising firm to break into the magic circle. Through Turner’s partner Hopton they acquired a good deal of work in bus company formation and subsequent amalgamations, hitching themselves to the coat tails of the transport entrepreneur A. H. Stanley.250
When necessary these City firms could act collectively in defence of the regime which they served. They formed an exclusive ‘City Law Club’251 and ensured, through publications, discreet lobbying and appearance as select committee witnesses that the views of the City were heard; for example, 17 of them (p.1142) banded together to oppose the Joint Stock Companies Bill of 1888 which sought to improve shareholder protection.252
While the biggest firms were in London, there were emergent specialists in other major cities. Botterell and Roche was at the centre of a complex structure of partnerships and firms operating in London and the shipbuilding centres of the north-east, and in Wilson Roche they had the country’s leading expert on shipping law. Roche inspired the formation of the British Ship Owners Association and the British Shipping Federation, from which they had a regular retainer, and frequently advised the Board of Trade. Between 1900 and 1920 the firm had at least 37 cases in the Court of Appeal on shipping matters alone.253
Liverpool too had commercial lawyers of excellent repute (notably W. G. Bateson and A. F. Warr) and in Birmingham John Moore-Bayley and R. H. Milward developed a speciality in corporate law, while Arthur Ryland established a national name for his role in trade mark reform.254 Men of such stature were not confined to the big cities. Rotherham could boast Frederick Parker Rhodes, a man of high repute in the coalmining industry, active in railway development, in great demand as an expert witness, sometime president of the Sheffield Law Society and member of the Law Society’s council.255Cornwall too had a very active commercial lawyer in Gerald Nalder, and F. W. Snell in Tonbridge specialized in company law and had Marconi and Daimler among his clients.256
Both in the City and elsewhere, there was clearly no shortage of interest in and commitment to, business enterprise, nor was this seen as incompatible with the notion of gentility which solicitors so much valued; after all Philip Rose was a confidant of Disraeli and a major figure in the Conservative party and John Hollams, known as ‘the judgemaker’, was one of the most prominent men in law reform; both, like Thomas Paine, were knighted.257 And yet despite all this activity, there is substance in the contention that solicitors had begun to lose their place as advisers to business.
They were not passive in the face of what one writer called ‘our invaders’.258 Indeed the legal journals published regular complaints about the inactivity of the Law Society and sometimes the apathy of the profession, complaints which were (p.1143) periodically echoed at annual meetings.259 In 1874 the Law Society responded by sponsoring an unsuccessful bill aimed at both accountants and estate agents, extending the ban on preparing instruments for reward to cover bankruptcy documents and estate contracts.260 Accountants had an unfair advantage in not needing a practising certificate and their lower income expectations probably enabled them to undercut solicitors’ charges for some work. Nevertheless, solicitors acquired a deserved reputation for being ignorant and slovenly in bookkeeping and accounts,261 examined in an antiquated system of trust accounts which was ‘as unintelligible to the ordinary business man as it is to the most ignorant person’.262 No wonder the accountants gloated. Furthermore, solicitors’ examinations were based exclusively on private client work and disdained company law and taxation, which meant that only those articled in firms which practised extensively in those areas were likely to acquire a working knowledge of them.263 In many places it must have become known to businessmen and professionals that it was vain to look to a solicitor for intelligent advice on financial matters. Solicitors’ complaints to the Law Society arising from encroachments on their function in advising laymen formed a much smaller proportion of the total than in the United States, suggesting it was not something they conceived as central to their practice.264
From that standpoint it was no doubt perfectly sensible of the profession to seek to draw agreed boundaries by discussion. In Liverpool, for example, the newly founded Society of Liverpool Accountants immediately met the Liverpool Law Society to establish the demarcation of work under the Bankruptcy Act265 and though no such agreement was struck nationally, the likelihood is that at least informal agreements were common; after all, although in competition for some work, each profession was in a position to send business to the other. Co-operation rather than conflict was probably the norm among the better class of practitioners who belonged to professional associations.266
Business failure was also a profitable source of work for solicitors.268 Though the commissioners in bankruptcy were barristers, all commissions made use of solicitors and there were complaints of ‘the total want of control by them [the commissioners] over the expenditure of the Solicitor to the Commission…’.269 Brougham’s reforms of 1831 came before the profession was organized to protect its interests, otherwise, for all Brougham’s prejudice against solicitors, they would probably not have been omitted from the qualifying occupations for official assignees.270 By the time further reforms were in contemplation the solicitors made sure their voice was heard. In 1843 local law societies petitioned alone and in conjunction with local business interests in favour of changes; a year later solicitors concerned with the collection of small debts were among the groups who secured the reversal of Brougham’s misconceived measure abolishing imprisonment for debts under £20, and in 1861 the Law Society was able to rebuff the Attorney-General’s desire to curtail the rights of audience in bankruptcy courts gained in 1849.271
The business was clearly worth protecting, for in the 1840s solicitors’ fees were said to take around 10 per cent from an estate272 and when a creditor-managed system of administration was substituted in 1869 the editor of the County Courts Chronicle suspected a plot by traders and accountants whereby the latter would grab the winding up business and milk it—‘their charges are double those of the solicitor…’.273 Predictions of abuses were amply fulfilled, but the ‘whitewashing’ of private liquidations frequently involved excessive payments to a compliant solicitor as well as an accountant,274 justifying the cynical definition of bankruptcy as ‘that state of things which exists when, a man being unable to pay his debts, his solicitor and an accountant divide all his property between them’.275 Solicitors supported the return to ‘officialism’ in a better controlled form in the Bankruptcy Act 1883, though they had later to contend with the expansionist tendencies of Board of Trade officials.
The same recourse to supervision by the Board of Trade occurred in the winding up of the companies following similar complaints of exorbitant professional (p.1145) charges.276 The Law Society mounted an ineffectual attack on the intrusion of the state into this field277 and there was probably some substance in what Tilney Barton, who was appointed a part-time official assignee in bankruptcy in 1905, alleged—that its own full-time salaried officials were favoured.278 For the larger firms which handled the bulk of company liquidations, however, there was still profit to be had from a failing client.
The Family Solicitor
Just as the solicitor’s role in commerce was gradually narrowed by the rise of other professions, so his part in the management of landed estates tended to shrink. Big estates began to employ the new breed of land agent, though the process was gradual.279 The Earl of Berkeley, for example, continued to employ Boodle, Hatfield for his Gloucestershire estates; it was not until 1885 that Wilde Sapte’s dealings with the Portman estate were limited to strictly law business, and country landowners continued to provide the backbone of Grays’ practice in York for much of the nineteenth century.280 Estates in Chancery could be profitable too, since solicitors, besides their professional work, might be made receivers, though few were so profitable for so long as the Thellusson estates, which earned Benbow’s firm an average of £2500 per annum for half a century.281
Even if solicitors were deprived of their function in estate management, they still profited from employment by landowners. Most big landowners used a local man for everyday matters and a specialist London firm for more complicated or important ones.282 Among the leading London firms were Frere Cholmeley, Farrers, who handled the Duke of Wellington’s estates, Gregory Rowcliffe, solicitors to the royal family and a firm which rather discouraged prospective (p.1146) commercial clients, and Boodles.283 Boodles had only around 100 clients in the early nineteenth century, rising only to 140 in mid-century, but they were mostly valuable ones, and John Boodle at one time got £500 per annum for handling the Earl of Essex’s affairs without even being his full-time agent.284 The firm’s biggest work, however, came for the Grosvenors and Comptons, both of whom were developing their properties in London. Such activities were highly profitable for the solicitors, especially if the leasehold system favoured by both families was used, since that generated continuing business. The Boodle–Grosvenor connection went back to the early eighteenth century and remained intact into the twentieth, though the Compton one ended acrimoniously.285
Much of the land in England was in settlement in the nineteenth century, but a large quantity of personalty was settled too and that encouraged the evolution of the family solicitor for the prosperous bourgeoisie as well as the gentry. A barrister, William Johnston, noted the ‘very curious’ position of such men, the ‘Father Confessors’ who alone understood the family trusts and whose ‘exquisite discretion’ ensured their confidentiality.286 At the very same time Dickens was creating his archetype of such men, the sinister Mr Tulkinghorn. As the century wore on solicitors were increasingly chosen (and more readily offered themselves) as trustees rather than mere advisers. In 1854 John Taylor was disconcerted at being nominated a trustee by an occasional client, with a legacy of £100 as an inducement and a ‘special provision authorizing me to charge for work to be done as a solicitor’.287Such an appointment was still unusual and rather problematic since the courts, with a grudging and narrow exception in the so-called ‘rule in Cradock v. Piper’ insisted that trusteeship was not an office of profit and construed charging clauses as narrowly as they could.288 However, as trusteeship became more onerous so it became commoner to resort to solicitors, and before an inquiry in 1895 one claimed to be in 47 trusts, another between 20 and 30.289 No wonder that the ‘officialism’ which created a Public Trustee in 1906 was contested by law societies on more than grounds of principle alone.
The role of solicitor to a family trust, whether or not combined with trusteeship, was extremely valuable. It cemented the solicitor’s position as ‘family solicitor’ and unless he frustrated the family in its designs it virtually ensured that he (p.1147) would handle its legal business on a continuing basis. It was also an indicator of his social standing, for no one would be chosen to fill that role who was not considered a gentleman.290
One of the most persistently voiced grievances of solicitors was the bar’s near-monopoly of legal and judicial offices, whether secured by formal reservation or practice.291 Only a few (chief clerks and taxing masters in Chancery and county court registrars) were reserved to solicitors, and there were understandable complaints when the Croydon registrar was called to the bar without forfeiting his place.292 Barristers were not the only competitors; district probate registrars were often taken from the clerks in Somerset House for example,293 but barristers were the most favoured, especially when new posts such as those in the Land Registry and Public Trustee Office were created.294
The sense of grievance swelled as solicitors gained in social standing. The first outburst came when solicitors, who had been made eligible to be judges of small debts courts under an 1845 Act, were denied similar chances in the County Courts Act 1846 despite strenuous lobbying. Just two, qualified as being already judges of small debts courts, were appointed, and one of those later went to the bar, leaving James Stansfeld the only solicitor on the bench.295 Although registrars gradually acquired judicial duties, the Judicature Commissions’s recommendation that they be eligible for judgeships was ignored.296
However, the real disappointment was the disposition of administrative posts such as solicitors to government departments, Clerks of Assize, and commissioners in bankruptcy. The bar’s stranglehold on these was not complete. A vociferous critic, C. F. Follett, became solicitor to the Customs and Excise in succession to a barrister and Hollams was offered both a chief clerkship in Chancery and solicitor to the Admiralty, but the perception was that the good things were mostly kept for the bar.297 That complaints extended to the unpaid position of justice of (p.1148) the peace suggest that professional pride was as much at stake as money. This disqualification was partly removed in 1871, though their continued exclusion from districts where they practised was resented as a slur on solicitors’ integrity. On this point, however, they made no headway.298
In their own locality, however, solicitors often accumulated public or semi-public positions which were financially rewarding, socially desirable or both. This trend was well developed in the eighteenth century299 and it is written of one Leeds practice in the 1820s that ‘it is hard to imagine which further appointments the firm could have acquired’.300 Some were near sinecures, but others, such as the clerk of the Liverpool vestry held by M. D. Lowndes, demanded a lot of time.301
Local government changes from the 1830s did not oust the solicitors from their places, in particular the key post of town clerk, which enabled William Statham to exert an influence on Liverpool affairs for 38 years.302 Likewise in the counties, largely unaffected by those changes, the clerkship of the peace remained highly desirable; in Cambridgeshire it brought Christopher Pemberton £450 in the 1840s and he later added the receivership of taxes yielding another £500.303 The clerk of the peace was one of many offices which became almost hereditary, for the custos rotulorum often chose his own solicitor; the under-sheriff in York, which the Gray family held in succession was another.304 Even where a firm rather than a family monopolized an office the element of succession, especially in small towns, could be notable. Charlesworths provided three successive county court registrars for Bradford, while two partners and a managing clerk followed each other as chairman of the Skipton board of health; it also provided coroners for 137 years.305 In Mold, Kelly & Keane so monopolized local offices as to create a real danger of conflicts of interest.306 Individuals also collected positions, though few so assiduously as Charles Deacon in Southampton, as coroner, commissioner of bankrupts, clerk to the waterworks commission, town clerk, clerk to the board of health, registrar of the court of record, secretary to the cemetery (p.1149) company, commissioner of deeds for married women and for insolvent debtors’ recognizances.307
However, monopoly was not invariable. Ten of Lincoln’s 16 firms parcelled out 16 city clerkships, commissionerships etc and in Canterbury seven of 11 practices made at least £100 per annum from public offices.308 Solicitors were sometimes in competition with others (such as doctors for coronerships) but more than held their own. In Birmingham, for example, between 1838 and 1914 they furnished all four clerks of the peace, all six town clerks, six out of seven magistrates’ clerks and two out of four coroners, and in addition had the lion’s share of other important positions, such as secretaryships to municipal charities.309 True, some posts were lost in the course of local government reforms,310 but others replaced them, at least until the major changes of 1888–94, which did reduce opportunities. This deep imbrication in local government was both a contributor to, and a consequence of, rising respectability and needs fuller examination.
In comparison with other professions, including barristers, solicitors were doing rather well financially when the Great War came.311 True, the top decile of barristers considerably outstripped their solicitor counterparts, but at lower levels solicitors were doing better than other professions. The top 10 per cent of solicitors earned at least £1410 per annum, and the top 25 per cent at least £790. The median figure was £390, but there was an uncomfortable residue, 25 per cent of the profession earning £185 or less.312 Income tax did not yet take a big slice out of most solicitors’ incomes and the cost of living was still much lower than it had been a century before.313 It is difficult to reconcile this picture with Offer’s view of a profession in a critical condition, but he is right to emphasize that many young solicitors were in financial straits; for the majority of the profession, however, times were not hard.314
(p.1150) For most of the nineteenth century there are only scattered figures for individual firms and the guesses of contemporaries, the former not necessarily representative and the latter often coloured by the author’s aim. Thus Wade’s Extraordinary Black Book in 1832 had a few London men making between £10,000 and £11,000 per annum and many more on between £3000 and 4000, which almost certainly overestimates the latter group.315 James Anderton, who wanted to show that solicitors were rather badly off, maintained that fewer than 200 in the whole country made even £300 through common law practice, while Robert Maugham wrote that profits of £600 were uncommon and £1000 decidedly rare.316 It is not difficult to find big earners: the three Freshfields partners shared £10,000 to £20,000 each between 1816 and 1821, while Disraeli claimed the five in his firm were dividing £15,000 and Gregory Rowcliffe had profits of £11,000 in 1835; yet even these men fell short of Wade’s figures.317
Within the profession the talk in the 1830s and 1840s was often of declining profits as a result of changes in the courts,318 but even if the pessimism was justified, it affected mostly London firms, whose continuing dependence upon litigation set them apart from most country solicitors. Yet W. H. Barber, starting from scratch in 1839, had 150 clients by 1844 and with a gross income of £3000 was dividing £2000 profits with his partner.319 Moreover many established practitioners had at least one post which supplemented their income.320 For example, William Young in Hastings took £337 as his share of the firm’s profits in 1845 but had a further £20–30 as a notary and was shortly to become registrar of the county court; Kelly and Keane in Mold in 1862 reckoned on £900 per annum but both held an assortment of local positions.321 Thomson reckoned that even a City or fashionable West End solicitor must work very hard to make £2000, and £1500 was generally felt to be a decent income for them.322 Boodles certainly did little better than that, but the leading City firms were beginning to: Linklaters were reckoning on £9500 in the 1870s, rising to £13,500 in the 1880s.323
Solicitors continued to plead poverty and one Law Society president stretched credulity too far in 1880 by claiming that he never knew one who could keep a (p.1151) carriage out of his professional earnings.324 True, large fortunes came largely from investment and speculation, but it was decidedly embarrassing for the pessimists when the Daily Telegraph in 1895 unearthed no fewer than 40 recent cases of very substantial fortunes (averaging £117,000) left by solicitors.325 They were not all in London either: when Frederick Andrew of Lincoln died in 1916 he left £123,396.326 Unfortunately there are few indications of the ratio of profits to income, though Freshfields’ profits were some 60 per cent of total income (less disbursements) in the early nineteenth century and Slaughter & May’s about 50 per cent of income in the early twentieth.327
In London a new firm, like Clifford Turner, could establish a good financial position quite quickly, profits rising from £900 in 1901 to £7000 in 1913,328 but it had probably become harder. Firms everywhere benefited (though bigger firms benefited most) from the glut of well-qualified clerks and solicitors, which enabled salaries to be kept down. Average earnings among these men seem to have hovered somewhere between £200 and £300, leaving a good many solicitors on the margins of gentility and very vulnerable to a crisis in their affairs.329 There was an extremely wide spread of earnings among firms. Partners in well-established practices, some with several branches, with a wide range of business and access to local positions, were making four-figure sums. Outside London newcomers, even well-connected ones, could only build up slowly to these levels, while some survived only through supplementary sources of income and others struggled to stay afloat.330
5. Solicitors in Politics and Society
Before 1832 few attorneys had been MPs, but they played an important part in political life as the agents who oiled the wheels of the unreformed electoral system, and if their near monopoly of election management only enhanced their reputation for corruption, such practices were generally accepted as a normal feature of public life.331
(p.1152) The 1832 Reform Act made the business more difficult, troublesome and expensive, but theLaw Times confidently asserted that ‘management of elections throughout the country is practically committed to solicitors’332 and for some 20 years first Sir Philip Rose and then another member of his firm, Markham Spofforth, had charge of the central organization of the Conservative party.333 It was often not the ‘low attorney’ who ran elections, but reputable solicitors, sometimes on an hereditary basis, though the less scrupulous party agents were said to provoke contests to increase their gains and these activities sat uncomfortably with the profession’s concern for its public image. Even so, it was not until 1878 that a Law Society president appealed to members not to engage in this ‘dirty work’.334 By then a ‘war on electoral corruption’ had begun which gradually eliminated disreputable practices and the political parties increasingly employed full-time agents to manage election business; nevertheless, a good many solicitors still held that position in 1914.335 More solicitors were in Parliament by then, though numbers, peaking at 34 in 1906, never matched the excessive representation of the bar. Only a handful achieved high office, for the trajectory of a successful professional career did not fit well with politics.336 Henry Fowler was the first cabinet minister, and the most notable, David Lloyd George, was no friend to his profession.337
Though the role of solicitors in Parliament and government was modest, at a local level their influence was pervasive because of their near monopoly of the key positions of clerk of the peace and town clerk.338 The magistrates and the parish vestry stood in the foreground, but ‘in the background of that picture there must be seen the grey figure of the attorney, always at the elbow of the mayor or chairman unostentatiously advising and guiding’.339 Poor Law unions, boards of health, and school boards all needed their secretary or clerk; and usually he was a solicitor.340
(p.1153) In most counties it paid to be a Tory, as three-quarters of solicitors were reckoned to be,341but in the bigger boroughs, politics was often volatile and even minor posts were strenuously contested along party lines. The Whig ascendancy in the boroughs following the Municipal Corporations Act 1835 displaced many a Tory solicitor who had been comfortably entrenched under the old oligarchy342 and men like C. G. Beale in Birmingham, who followed Joseph Chamberlain, profited from loyalty to the new rulers.343 In small country towns some solicitors had already acquired a prominent position, like John Hawkins, the ‘king of Hitchin’344 and gradually they asserted themselves in larger communities. They became councillors, often influential ones through their legal expertise, and sometimes mayor;345 indeed, the mayoralty had such symbolic value that theSolicitors’ Journal at one time listed all solicitors who attained it.346 Some law societies fostered the notion that active engagement in public affairs was a civic duty, a consequence of being a gentleman-professional, and many believed it.347